Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-51122 March 25, 1982

EUGENIO J. PUYAT, ERWIN L. CHIONGBIAN, EDGARDO P. REYES, ANTONIO G.

PUYAT, JAIME R. BLANCO, RAFAEL R. RECTO and REYNALDO L. LARDIZABAL,
petitioners,
vs.
HON. SIXTO T. J. DE GUZMAN, JR., as Associate Commissioner of the
Securities & Exchange Commission, EUSTAQUIO T. C. ACERO, R. G.
VILDZIUS, ENRIQUE M. BELO, MANUEL G. ABELLO, SERVILLANO DOLINA,
JUANITO MERCADO and ESTANISLAO A. FERNANDEZ, respondents.

MELENCIO-HERRERA, J.:

This suit for certiorari and Prohibition with Preliminary Injunction is poised against the
Order of respondent Associate Commissioner of the Securities and Exchange
Commission (SEC) granting Assemblyman Estanislao A. Fernandez leave to intervene
in SEC Case No. 1747.

A question of novel import is in issue. For its resolution, the following dates and
allegations are being given and made:

a) May 14,1979. An election for the eleven Directors of the International Pipe
Industries Corporation (IPI) a private corporation, was held. Those in charge ruled
that the following were elected as Directors:

Eugenio J. Puyat Eustaquio T.C. Acero

Erwin L. Chiongbian R. G. Vildzius
Edgardo P. Reyes Enrique M. Belo
Antonio G. Puyat Servillano Dolina
Jaime R. Blanco Juanito Mercado
Rafael R. Recto

Those named on the left list may be called the Puyat Group; those on the right, the
Acero Group. Thus, the Puyat Group would be in control of the Board and of the
management of IPI.

b) May 25, 1979. The Acero Group instituted at the Securities and Exchange
Commission (SEC) quo warranto proceedings, docketed as Case No. 1747 (the SEC
Case), questioning the election of May 14, 1979. The Acero Group claimed that the
stockholders' votes were not properly counted.

c) May 25-31, 1979. The Puyat Group claims that at conferences of the parties with
respondent SEC Commissioner de Guzman, Justice Estanislao A. Fernandez, then a
member of the Interim Batasang Pambansa, orally entered his appearance as counsel
for respondent Acero to which the Puyat Group objected on Constitutional grounds.
Section 11, Article VIII, of the 1973 Constitution, then in force, provided that no
Assemblyman could "appear as counsel before ... any administrative body", and SEC
was an administrative body. Incidentally, the same prohibition was maintained by the
April 7, 1981 plebiscite. The cited Constitutional prohibition being clear,
Assemblyman Fernandez did not continue his appearance for respondent Acero.

d) May 31, 1979. When the SEC Case was called, it turned out that:

(i) On May 15, 1979, Assemblyman Estanislao A. Fernandez had

purchased from Augusto A. Morales ten (10) shares of stock of IPI for
P200.00 upon request of respondent Acero to qualify him to run for
election as a Director.

(ii) The deed of sale, however, was notarized only on May 30, 1979 and
was sought to be registered on said date.

(iii) On May 31, 1979, the day following the notarization of

Assemblyman Fernandez' purchase, the latter had filed an Urgent
Motion for Intervention in the SEC Case as the owner of ten (10) IPI
shares alleging legal interest in the matter in litigation.

e) July 17, 1979. The SEC granted leave to intervene on the basis of Atty. Fernandez'
ownership of the said ten shares. 1 It is this Order allowing intervention that
precipitated the instant petition for certiorari and Prohibition with Preliminary
Injunction.

f) July 3, 1979. Edgardo P. Reyes instituted a case before the Court of First Instance
of Rizal (Pasig), Branch XXI, against N.V. Verenigde Bueinzenfabrieken Excelsior — De
Maas and respondent Eustaquio T. C. Acero and others, to annul the sale of
Excelsior's shares in the IPI to respondent Acero (CC No. 33739). In that case,
Assemblyman Fernandez appeared as counsel for defendant Excelsior In L-51928, we
ruled that Assemblyman Fernandez could not appear as counsel in a case originally
filed with a Court of First Instance as in such situation the Court would be one
"without appellate jurisdiction."

On September 4, 1979, the Court en banc issued a temporary Restraining Order

enjoining respondent SEC Associate Commissioner from allowing the participation as
an intervenor, of respondent Assemblyman Estanislao Fernandez at the proceedings
in the SEC Case.

The Solicitor General, in his Comment for respondent Commissioner, supports the
stand of the latter in allowing intervention. The Court en banc, on November 6, 1979,
resolved to consider the Comment as an Answer to the Petition.

The issue which will be resolved is whether or not Assemblyman Fernandez, as a then
stockholder of IPI may intervene in the SEC Case without violating Section 11, Article
VIII of the Constitution, which, as amended, now reads:

SEC. 11.

No Member of the Batasang Pambansa shall appear as counsel before

any court without appellate jurisdiction.

before any court in any civil case wherein the Government, or any
subdivision, agency, or instrumentality thereof is the adverse party,
 or in any criminal case wherein any officer or employee of the
Government is accused of an offense committed in relation to his
office,

or before any administrative body.

Neither shall he, directly or indirectly be interested financially in any

contract with, or in any franchise or special privilege granted by the
Government, or any subdivision, agency or instrumentality thereof,
including any government-owned or controlled corporation, during his
term of office.

He shall not accept employment to intervene in any cause or matter

where he may be called to act on account of his office. (Emphasis
supplied)

What really has to be resolved is whether or not, in intervening in the SEC Case,
Assemblyman Fernandez is, in effect, appearing as counsel, albeit indirectly, before
an administrative body in contravention of the Constitutional provision.

Ordinarily, by virtue of the Motion for Intervention, Assemblyman Fernandez cannot

be said to be appearing as counsel. Ostensibly, he is not appearing on behalf of
another, although he is joining the cause of the private respondents. His appearance
could theoretically be for the protection of his ownership of ten (10) shares of IPI in
respect of the matter in litigation and not for the protection of the petitioners nor
respondents who have their respective capable and respected counsel.

However, certain salient circumstances militate against the intervention of

Assemblyman Fernandez in the SEC Case. He had acquired a mere P200.00 worth of
stock in IPI, representing ten shares out of 262,843 outstanding shares. He acquired
them "after the fact" that is, on May 30, 1979, after the contested election of
Directors on May 14, 1979, after the quo warranto suit had been filed on May 25,
1979 before SEC and one day before the scheduled hearing of the case before the
SEC on May 31, 1979. And what is more, before he moved to intervene, he had
signified his intention to appear as counsel for respondent Eustaquio T. C. Acero, 2
but which was objected to by petitioners. Realizing, perhaps, the validity of the
objection, he decided, instead, to "intervene" on the ground of legal interest in the
matter under litigation. And it maybe noted that in the case filed before the Rizal
Court of First Instance (L-51928), he appeared as counsel for defendant Excelsior, co-
defendant of respondent Acero therein.

Under those facts and circumstances, we are constrained to find that there has been
an indirect "appearance as counsel before ... an administrative body" and, in our
opinion, that is a circumvention of the Constitutional prohibition. The "intervention"
was an afterthought to enable him to appear actively in the proceedings in some
other capacity. To believe the avowed purpose, that is, to enable him eventually to
vote and to be elected as Director in the event of an unfavorable outcome of the SEC
Case would be pure naivete. He would still appear as counsel indirectly.

A ruling upholding the "intervention" would make the constitutional provision

ineffective. All an Assemblyman need do, if he wants to influence an administrative
body is to acquire a minimal participation in the "interest" of the client and then
"intervene" in the proceedings. That which the Constitution directly prohibits may not
be done by indirection or by a general legislative act which is intended to accomplish
the objects specifically or impliedly prohibited. 3

In brief, we hold that the intervention of Assemblyman Fernandez in SEC. No. 1747
falls within the ambit of the prohibition contained in Section 11, Article VIII of the
Constitution.

Our resolution of this case should not be construed as, absent the question of the
constitutional prohibition against members of the Batasan, allowing any stockholder,
or any number of stockholders, in a corporation to intervene in any controversy
before the SEC relating to intra-corporate matters. A resolution of that question is not
necessary in this case.

WHEREFORE, respondent Commissioner's Order granting Atty. Estanislao A.

Fernandez leave to intervene in SEC Case No. 1747 is hereby reversed and set aside.
The temporary Restraining Order heretofore issued is hereby made permanent.

No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner,

vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as
Secretary of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO
BALMACEDA, as Secretary of Commerce and Industry, and SALVADOR
MARINO, Secretary of Justice, respondents.

Ramon A. Gonzales in his own behalf as petitioner.

Office of the Solicitor General and Estanislao Fernandez for respondents.

CONCEPCION, J.:

This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary

authorized the importation of 67,000 tons of foreign rice to be purchased from
private sources, and created a rice procurement committee composed of the other
respondents herein1 for the implementation of said proposed importation. Thereupon,
or September 25, 1963, herein petitioner, Ramon A. Gonzales — a rice planter, and
president of the Iloilo Palay and Corn Planters Association, whose members are,
likewise, engaged in the production of rice and corn — filed the petition herein,
averring that, in making or attempting to make said importation of foreign rice, the
aforementioned respondents "are acting without jurisdiction or in excess of
jurisdiction", because Republic Act No. 3452 which allegedly repeals or amends
Republic Act No. 220 — explicitly prohibits the importation of rice and corn "the Rice
and Corn Administration or any other government agency;" that petitioner has no
other plain, speedy and adequate remedy in the ordinary course of law; and that a
preliminary injunction is necessary for the preservation of the rights of the parties
during the pendency this case and to prevent the judgment therein from coming
ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a
writ of preliminary injunction be forthwith issued restraining respondent their agents
or representatives from implementing the decision of the Executive Secretary to
import the aforementioned foreign rice; and that, after due hearing, judgment be
rendered making said injunction permanent.

Forthwith, respondents were required to file their answer to the petition which they
did, and petitioner's pray for a writ of preliminary injunction was set for hearing at
which both parties appeared and argued orally. Moreover, a memorandum was filed,
shortly thereafter, by the respondents. Considering, later on, that the resolution said
incident may require some pronouncements that would be more appropriate in a
decision on the merits of the case, the same was set for hearing on the merits
thereafter. The parties, however, waived the right to argue orally, although counsel
for respondents filed their memoranda.

I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him
sufficient interest to file the petition herein and secure the relief therein prayed for.
We find no merit in this pretense. Apart from prohibiting the importation of rice and
corn "by the Rice and Corn Administration or any other government agency".
Republic Act No. 3452 declares, in Section 1 thereof, that "the policy of the
Government" is to "engage in the purchase of these basic foods directly from those
tenants, farmers, growers, producers and landowners in the Philippines who wish to
dispose of their products at a price that will afford them a fair and just return for their
labor and capital investment. ... ." Pursuant to this provision, petitioner, as a planter
with a rice land of substantial proportion,2 is entitled to a chance to sell to the
Government the rice it now seeks to buy abroad. Moreover, since the purchase of
said commodity will have to be effected with public funds mainly raised by taxation,
and as a rice producer and landowner petitioner must necessarily be a taxpayer, it
follows that he has sufficient personality and interest to seek judicial assistance with
a view to restraining what he believes to be an attempt to unlawfully disburse said
funds.

II. Exhaustion of administrative remedies.

Respondents assail petitioner's right to the reliefs prayed for because he "has not
exhausted all administrative remedies available to him before coming to court". We
have already held, however, that the principle requiring the previous exhaustion of
administrative remedies is not applicable where the question in dispute is purely a
legal one",3 or where the controverted act is "patently illegal" or was performed
without jurisdiction or in excess of jurisdiction,4 or where the respondent is a
department secretary, whose acts as an alter-ego of the President bear the implied
or assumed approval of the latter,5 unless actually disapproved by him,6 or where
there are circumstances indicating the urgency of judicial intervention.7 The case at
bar fails under each one of the foregoing exceptions to the general rule.
Respondents' contention is, therefore, untenable.

III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory
that the proposed importation in question is not governed by Republic Acts Nos. 2207
and 3452, but was authorized by the President as Commander-in-Chief "for military
stock pile purposes" in the exercise of his alleged authority under Section 2 of
Commonwealth Act No. 1;8 that in cases of necessity, the President "or his
subordinates may take such preventive measure for the restoration of good order
and maintenance of peace"; and that, as Commander-in-Chief of our armed forces,
"the President ... is duty-bound to prepare for the challenge of threats of war or
emergency without waiting for any special authority".

Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as
contended by petitioner herein - on which our view need not be expressed — we are
unanimously of the opinion - assuming that said Republic Act No. 2207 is still in force
— that the two Acts are applicable to the proposed importation in question because
the language of said laws is such as to include within the purview thereof all
importations of rice and corn into the Philippines". Pursuant to Republic Act No. 2207,
"it shall be unlawful for any person, association, corporation or government agency to
import rice and corn into any point in the Philippines", although, by way of exception,
it adds, that "the President of the Philippines may authorize the importation of these
commodities through any government agency that he may designate", is the
conditions prescribed in Section 2 of said Act are present. Similarly, Republic Act No.
3452 explicitly enjoins "the Rice and Corn Administration or any government agency"
from importing rice and corn.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and
3452, prohibiting the importation of rice and corn by any "government agency", do
not apply to importations "made by the Government itself", because the latter is not
a "government agency". This theory is devoid of merit. The Department of National
Defense and the Armed Forces of the Philippines, as well as respondents herein, and
each and every officer and employee of our Government, our government agencies
and/or agents. The applicability of said laws even to importations by the Government
as such, becomes more apparent when we consider that:

1. The importation permitted in Republic Act No. 2207 is to be authorized by the

"President of the Philippines" and, hence, by or on behalf of the Government of the
Philippines;

2. Immediately after enjoining the Rice and Corn administration and any other
government agency from importing rice and corn, Section 10 of Republic Act No.
3452 adds "that the importation of rice and corn is left to private parties upon
payment of the corresponding taxes", thus indicating that only "private parties" may
import rice under its provisions; and

3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not
more than five (5) years for those who shall violate any provision of Republic Act No.
3452 or any rule and regulation promulgated pursuant thereto, Section 15 of said Act
provides that "if the offender is a public official and/or employees", he shall be
subject to the additional penalty specified therein. A public official is an officer of the
Government itself, as distinguished from officers or employees of instrumentalities of
the Government. Hence, the duly authorized acts of the former are those of the
Government, unlike those of a government instrumentality which may have a
personality of its own, distinct and separate from that of the Government, as such.
The provisions of Republic Act No. 2207 are, in this respect, even more explicit.
Section 3 thereof provides a similar additional penalty for any "officer or employee of
the Government" who "violates, abets or tolerates the violation of any provision" of
said Act. Hence, the intent to apply the same to transactions made by the very
government is patent.

Indeed, the restrictions imposed in said Republic Acts are merely additional to those
prescribed in Commonwealth Act No. 138, entitled "An Act to give native products
and domestic entities the preference in the purchase of articles for the Government."
Pursuant to Section 1 thereof:

The Purchase and Equipment Division of the Government of the Philippines

and other officers and employees of the municipal and provincial
governments and the Government of the Philippines and of chartered cities,
boards, commissions, bureaus, departments, offices, agencies, branches, and
bodies of any description, including government-owned companies,
authorized to requisition, purchase, or contract or make disbursements for
articles, materials, and supplies for public use, public buildings, or public
works shall give preference to materials ... produced ... in the Philippines or in
the United States, and to domestic entities, subject to the conditions
hereinbelow specified. (Emphasis supplied.)

Under this provision, in all purchases by the Government, including those made by
and/or for the armed forces, preference shall be given to materials produced in the
Philippines. The importation involved in the case at bar violates this general policy of
our Government, aside from the provisions of Republic Acts Nos. 2207 and 3452.

The attempt to justify the proposed importation by invoking reasons of national

security — predicated upon the "worsening situation in Laos and Vietnam", and "the
recent tension created by the Malaysia problem" - and the alleged powers of the
President as Commander-in-Chief of all armed forces in the Philippines, under Section
2 of the National Defense Act (Commonwealth Act No. 1), overlooks the fact that the
protection of local planters of rice and corn in a manner that would foster and
accelerate self-sufficiency in the local production of said commodities constitutes a
factor that is vital to our ability to meet possible national emergency. Even if the
intent in importing goods in anticipation of such emergency were to bolster up that
ability, the latter would, instead, be impaired if the importation were so made as to
discourage our farmers from engaging in the production of rice.

Besides, the stockpiling of rice and corn for purpose of national security and/or
national emergency is within the purview of Republic Act No. 3452. Section 3 thereof
expressly authorizes the Rice and Corn Administration "to accumulate stocks as a
national reserve in such quantities as it may deem proper and necessary to meet any
contingencies". Moreover, it ordains that "the buffer stocks held as a national reserve
... be deposited by the administration throughout the country under the proper
dispersal plans ... and may be released only upon the occurrence of calamities or
emergencies ...". (Emphasis applied.)

Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which

respondents rely so much, are not self-executory. They merely outline the general
objectives of said legislation. The means for the attainment of those objectives are
subject to congressional legislation. Thus, the conditions under which the services of
citizens, as indicated in said Section 2, may be availed of, are provided for in Sections
3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5 thereof
specifies the manner in which resources necessary for our national defense may be
secured by the Government of the Philippines, but only "during a national
mobilization",9 which does not exist. Inferentially, therefore, in the absence of a
national mobilization, said resources shall be produced in such manner as Congress
may by other laws provide from time to time. Insofar as rice and corn are concerned,
Republic Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws.

Respondents cite Corwin in support of their pretense, but in vain. An examination of

the work cited10 shows that Corwin referred to the powers of the President during
"war time"11 or when he has placed the country or a part thereof under "martial
law".12 Since neither condition obtains in the case at bar, said work merely proves
that respondents' theory, if accepted, would, in effect, place the Philippines under
martial law, without a declaration of the Executive to that effect. What is worse, it
would keep us perpetually under martial law.

It has been suggested that even if the proposed importation violated Republic Acts
Nos. 2207 and 3452, it should, nevertheless, be permitted because "it redounds to
the benefit of the people". Salus populi est suprema lex, it is said.

If there were a local shortage of rice, the argument might have some value. But the
respondents, as officials of this Government, have expressly affirmed again and
again that there is no rice shortage. And the importation is avowedly for stockpile of
the Army — not the civilian population.

But let us follow the respondents' trend of thought. It has a more serious implication
that appears on the surface. It implies that if an executive officer believes that
compliance with a certain statute will not benefit the people, he is at liberty to
disregard it. That idea must be rejected - we still live under a rule of law.

And then, "the people" are either producers or consumers. Now — as respondents
explicitly admit — Republic Acts Nos. 2207 and 3452 were approved by the
Legislature for the benefit of producers and consumers, i.e., the people, it must
follow that the welfare of the people lies precisely in the compliance with said Acts.

It is not for respondent executive officers now to set their own opinions against that
of the Legislature, and adopt means or ways to set those Acts at naught. Anyway,
those laws permit importation — but under certain conditions, which have not been,
and should be complied with.

IV. The contracts with Vietnam and Burma —

It is lastly contended that the Government of the Philippines has already entered into
two (2) contracts for the Purchase of rice, one with the Republic of Vietnam, and
another with the Government of Burma; that these contracts constitute valid
executive agreements under international law; that such agreements became
binding effective upon the signing thereof by representatives the parties thereto;
that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand,
and aforementioned contracts, on the other, the latter should prevail, because, if a
treaty and a statute are inconsistent with each other, the conflict must be resolved —
under the American jurisprudence — in favor of the one which is latest in point of
time; that petitioner herein assails the validity of acts of the Executive relative to
foreign relations in the conduct of which the Supreme Court cannot interfere; and the
aforementioned contracts have already been consummated, the Government of the
Philippines having already paid the price of the rice involved therein through
irrevocable letters of credit in favor of the sell of the said commodity. We find no
merit in this pretense.
The Court is not satisfied that the status of said tracts as alleged executive
agreements has been sufficiently established. The parties to said contracts do not
pear to have regarded the same as executive agreements. But, even assuming that
said contracts may properly considered as executive agreements, the same are
unlawful, as well as null and void, from a constitutional viewpoint, said agreements
being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although
the President may, under the American constitutional system enter into executive
agreements without previous legislative authority, he may not, by executive
agreement, enter into a transaction which is prohibited by statutes enacted prior
thereto. Under the Constitution, the main function of the Executive is to enforce laws
enacted by Congress. The former may not interfere in the performance of the
legislative powers of the latter, except in the exercise of his veto power. He may not
defeat legislative enactments that have acquired the status of law, by indirectly
repealing the same through an executive agreement providing for the performance
of the very act prohibited by said laws.

The American theory to the effect that, in the event of conflict between a treaty and
a statute, the one which is latest in point of time shall prevail, is not applicable to the
case at bar, for respondents not only admit, but, also insist that the contracts
adverted to are not treaties. Said theory may be justified upon the ground that
treaties to which the United States is signatory require the advice and consent of its
Senate, and, hence, of a branch of the legislative department. No such justification
can be given as regards executive agreements not authorized by previous legislation,
without completely upsetting the principle of separation of powers and the system of
checks and balances which are fundamental in our constitutional set up and that of
the United States.

As regards the question whether an international agreement may be invalidated by

our courts, suffice it to say that the Constitution of the Philippines has clearly settled
it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme
Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or
affirm on appeal, certiorari, or writ of error as the law or the rules of court may
provide, final judgments and decrees of inferior courts in — (1) All cases in which the
constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question". In other words, our Constitution authorizes the nullification
of a treaty, not only when it conflicts with the fundamental law, but, also, when it
runs counter to an act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma
does not render this case academic, Republic Act No. 2207 enjoins our Government
not from entering into contracts for the purchase of rice, but from importing rice,
except under the conditions Prescribed in said Act. Upon the other hand, Republic Act
No. 3452 has two (2) main features, namely: (a) it requires the Government to
purchase rice and corn directly from our local planters, growers or landowners; and
(b) it prohibits importations of rice by the Government, and leaves such importations
to private parties. The pivotal issue in this case is whether the proposed importation
— which has not been consummated as yet — is legally feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not

compel our Government to default in the performance of such obligations as it may
have contracted with the sellers of the rice in question, because, aside from the fact
that said obligations may be complied with without importing the commodity into the
Philippines, the proposed importation may still be legalized by complying with the
provisions of the aforementioned laws.
V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not
respondents herein should be enjoined from implementing the aforementioned
proposed importation. However, the majority favors the negative view, for which
reason the injunction prayed for cannot be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive

Secretary had and has no power to authorize the importation in question; that he
exceeded his jurisdiction in granting said authority; said importation is not sanctioned
by law and is contrary to its provisions; and that, for lack of the requisite majority,
the injunction prayed for must be and is, accordingly denied. It is so ordered.

Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.

Separate Opinions

BAUTISTA ANGELO, J., concurring:

Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful for
any person, association, corporation or government agency to import rice and corn
into any point in the Philippines. The exception is if there is an existing or imminent
shortage of such commodity of much gravity as to constitute national emergency in
which case an importation may be authorized by the President when so certified by
the National Economic Council.

However, on June 14, 1962, Republic Act 3452 was enacted providing that the
importation of rice and corn can only be made by private parties thereby prohibiting
from doing so the Rice and Corn Administration or any other government agency.
Republic Act 3452 does not expressly repeal Republic Act 2207, but only repeals or
modified those parts thereof that are inconsistent with its provisions. The question
that now arises is: Has the enactment of Republic Act 3452 the effect of prohibiting
completely the government from importing rice and corn into the Philippines?

My answer is in the negative. Since this Act does not in any manner provide for the
importation of rice and corn in case of national emergency, the provision of the
former law on that matter should stand, for that is not inconsistent with any provision
embodied in Republic Act 3452. The Rice and Corn Administration, or any other
government agency, may therefore still import rice and corn into the Philippines as
provided in Republic Act 2207 if there is a declared national emergency.

The next question that arises is: Can the government authorize the importation of
rice and corn regardless of Republic Act 2207 if that is authorized by the President as
Commander-in-Chief of the Philippine Army as a military precautionary measure for
military stockpile?

Respondents answer this question in the affirmative. They advance the argument
that it is the President's duty to see to it that the Armed Forces of the Philippines are
geared to the defenses of the country as well as to the fulfillment of our international
commitments in Southeast Asia in the event the peace and security of the area are in
danger. The stockpiling of rice, they aver, is an essential requirement of defense
preparation in view of the limited local supply and the probable disruption of trade
and commerce with outside countries in the event of armed hostilities, and this
military precautionary measure is necessary because of the unsettled conditions in
the Southeast Asia bordering on actual threats of armed conflicts as evaluated by the
Intelligence Service of the Military Department of our Government. This advocacy,
they contend, finds support in the national defense policy embodied in Section 2 of
our National Defense Act (Commonwealth Act No. 1), which provides:

(a) The preservation of the State is the obligation of every citizen. The security
of the Philippines and the freedom, independence and perpetual neutrality of
the Philippine Republic shall be guaranteed by the employment of all citizens,
without distinction of sex or age, and all resources.

(b) The employment of the nation's citizens and resources for national
defense shall be effected by a national mobilization.

(c) The national mobilization shall include the execution of all measures
necessary to pass from a peace to a war footing.

(d) The civil authority shall always be supreme. The President of the
Philippines as the Commander-in-Chief of all military forces, shall be
responsible that mobilization measures are prepared at all times.(Emphasis
supplied)

Indeed, I find in that declaration of policy that the security of the Philippines and its
freedom constitutes the core of the preservation of our State which is the basic duty
of every citizen and that to secure which it is enjoined that the President employ all
the resources at his command. But over and above all that power and duty,
fundamental as they may seem, there is the injunction that the civil authority shall
always be supreme. This injunction can only mean that while all precautions should
be taken to insure the security and preservation of the State and to this effect the
employment of all resources may be resorted to, the action must always be taken
within the framework of the civil authority. Military authority should be harmonized
and coordinated with civil authority, the only exception being when the law clearly
ordains otherwise. Neither Republic Act 2207, nor Republic Act 3452, contains any
exception in favor of military action concerning importation of rice and corn. An
exception must be strictly construed.

A distinction is made between the government and government agency in an

attempt to take the former out of the operation of Republic Act 2207. I disagree. The
Government of the Republic of the Philippines under the Revised Administrative Code
refers to that entity through which the functions of government are exercised,
including the various arms through which political authority is made effective
whether they be provincial, municipal or other form of local government, whereas a
government instrumentality refers to corporations owned or controlled by the
government to promote certain aspects of the economic life of our people. A
government agency, therefore, must necessarily refer to the government itself of the
Republic, as distinguished from any government instrumentality which has a
personality distinct and separate from it (Section 2).

The important point to determine, however, is whether we should enjoin respondents

from carrying out the importation of the rice which according to the record has been
authorized to be imported on government to government level, it appearing that the
arrangement to this effect has already been concluded, the only thing lacking being
its implementation. This is evident from the manifestation submitted by the Solicitor
General wherein it appears that the contract for the purchase of 47,000 tons of rice
from had been sign on October 5, 1963, and for the purchase of 20,000 tons from
Burma on October 8, 1963, by the authorized representatives of both our
government and the governments of Vietnam and Burma, respectively. If it is true
that, our government has already made a formal commitment with the selling
countries there arises the question as to whether the act can still be impeded at this
stage of the negotiations. Though on this score there is a divergence of opinion, it is
gratifying to note that the majority has expressed itself against it. This is a plausible
attitude for, had the writ been issued, our government would have been placed in a
predicament where, as a necessary consequence, it would have to repudiate a duly
formalized agreement to its great embarrassment and loss of face. This was avoided
by the judicial statesmanship evinced by the Court.

BARRERA, J., concurring:

Because of possible complications that might be aggravated by misrepresentation of

the true nature and scope of the case before this Court, it is well to restate as clearly
as possible, the real and only issue presented by the respondents representing the
government.

From the answer filed by the Solicitor General, in behalf of respondents, we quote:

The importation of the rice in question by the Armed Forces of the Philippines
is for military stockpiling authorized by the President pursuant to his inherent
power as commander-in-chief and as a military precautionary measure in view
the worsening situation in Laos and Vietnam and, it may added, the recent,
tension created by the Malaysia problem (Answer, p. 2; emphasis supplied.)

During the oral argument, Senator Fernandez, appealing in behalf of the

respondents, likewise reiterated the imported rice was for military stockpiling, and
which he admitted that some of it went to the Rice and Corn Administration, he
emphasized again and again that rice was not intended for the RCA for distribution to
people, as there was no shortage of rice for that purpose but it was only exchanged
for palay because this could better preserved.

From the memorandum filed thereafter by the Solicits General, again the claim was
made:

We respectfully reiterate the arguments in our answer dated October 4, 1963

that the importation of rice sought be enjoined in this petition is in the
exercise of the authority vested in the President of the Philippines as
Commander-in-Chief of the Armed Forces, as a measure of military
preparedness demanded by a real and actual threat of emergency in the
South East Asian countries. (p. 1, Emphasis supplied.)

xxx xxx xxx

 It (the stressing of the unsettled conditions in Southeast Asia) is merely our
intention to show the necessity for the stockpiling of rice for army purposes,
which is the very reason for the importation.

xxx xxx xxx

As it is, the importation in question is being made by the Republic of the

Philippines for its own use, and the rice is not supposed to be poured into the
open market as to affect the price to be paid by the public. (p. 4, Emphasis
supplied.)

xxx xxx xxx

What we do contend is that the law, for want of express and clear provision to
that effect, does not include in its prohibition importation by the Government
of rice for its own use and not for the consuming public, regardless of whether
there is or there is no emergency. (p. 5, Emphasis supplied.)

From the above, it not only appears but is evident that the respondents were not
concerned with the present rice situation confronting the consuming public, but were
solely and exclusively after the stockpiling of rice for the future use of the army. The
issue, therefore, in which the Government was interested is not whether rice is
imported to give the people a bigger or greater supply to maintain the price at P.80
per ganta — for, to quote again their contention: "the rice is not supposed to be
poured into the open market to affect the price to be paid by the public, as it is not
for the consuming public, regardless of whether there is or there is no emergency",
— but whether rice can legally be imported by the Armed Forces of the Philippines
avowedly for its future use, notwithstanding the prohibitory provisions of Republic
Acts Nos. 2207 and 3452. The majority opinion ably sets forth the reasons why this
Court can not accept the contention of the respondents that this importation is
beyond and outside the operation of these statutes. I can only emphasize that I see
in the theory advanced by the Solicitor General a dangerous trend — that because
the policies enunciated in the cited laws are for the protection of the producers and
the consumers, the army is removed from their application. To adopt this theory is to
proclaim the existence in the Philippines of three economic groups or classes: the
producers, the consumers, and the Armed Forces of the Philippines. What is more
portentous is the effect to equate the army with the Government itself.

Then again, the importation of this rice for military stockpiling is sought to be justified
by the alleged threat of emergency in the Southeast Asian countries. But the
existence of this supposed threat was unilaterally determined by the Department of
National Defense alone. We recall that there exists a body called the National
Security Council in which are represented the Executive as well as the Legislative
department. In it sit not only members of the party in power but of the opposition as
well. To our knowledge, this is the highest consultative body which deliberates
precisely in times of emergency threatening to affect the security of the state. The
democratic composition of this council is to guarantee that its deliberations would be
non-partisan and only the best interests of the nation will be considered. Being a
deliberative body, it insures against precipitate action. This is as it should be.
Otherwise, in these days of ever present cold war, any change or development in the
political climate in any region of the world is apt to be taken as an excuse for the
military to conjure up a crisis or emergency and thereupon attempt to override our
laws and legal processes, and imperceptibly institute some kind of martial law on the
pretext of precautionary mobilization measure avowedly in the interest of the
security of the state. One need not, be too imaginative to perceive a hint of this in
the present case.

The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware
of the difficult and delicate task it had to discharge. Its position is liable to be
exploited by some for their own purposes by claiming and making it appear that the
Court is unmindful of the plight of our people during these days of hardship; that it
preferred to give substance to the "niceties of the law than heed the needs of the
people. Our answer is that the Court was left no alternative. It had, in compliance
with its duty, to decide the case upon the facts presented to it. The respondents,
representing the administration, steadfastly maintained and insisted that there is no
rice shortage; that the imported rice is not for the consuming public and is not
supposed to be placed in the open market to affect the price to be paid by the public;
that it is solely for stockpiling of the army for future use as a measure of mobilization
in the face of what the Department of National Defense unilaterally deemed a
threatened armed conflict in Southeast Asia. Confronted with these facts upon, which
the Government has built and rested its case, we have searched in vain for legal
authority or cogent reasons to justify this importation made admittedly contrary to
the provisions of Republic Acts Nos. 2207 and 3452. I say admittedly, because
respondents never as much as pretended that the importation fulfills the conditions
specified in these laws, but limited themselves to the contention, which is their sole
defense that this importation does not fall within the scope of said laws. In our view,
however, the laws are clear. The laws are comprehensive and their application does
not admit of any exception. The laws are adequate. Compliance therewith is not
difficult, much less impossible. The avowed emergency, if at all, is not urgently
immediate.

In this connection, it is pertinent to bear in mind that the Supreme Court has a duty
to perform under the Constitution. It has to decide, when called upon to do so in an
appropriate proceeding, all cases in which the constitutionality or validity of any
treaty, law, ordinance, executive order or regulation is in question. We can not elude
this duty. To do so would be culpable dereliction on our part. While we sympathize
with the public that might be adversely affected as a result of this decision yet our
sympathy does not authorize us to sanction an act contrary to applicable laws. The
fault lies with those who stubbornly contended and represented before this Court
that there is no rice shortage, that the imported rice is not intended for the
consuming public, but for stockpiling of the army. And, if as now claimed before the
public, contrary to the Government's stand in this case, that there is need for
imported rice to stave off hunger, our legislature has provided for such a situation. As
already stated, the laws are adequate. The importation of rice under the conditions
set forth in the laws may be authorized not only where there is an existing shortage,
but also when the shortage is imminent. In other words, lawful remedy to solve the
situation is available, if only those who have the duty to execute the laws perform
their duty. If there is really need for the importation of rice, who adopt some dubious
means which necessitates resort to doubtful exercise of the power of the President as
Commander-in-Chief of the Army? Why not comply with the mandate of the law?
Ours is supposed to be a regime under the rule of law. Adoption as a government
policy of the theory of the end justifies the means brushing aside constitutional and
legal restraints, must be rejected, lest we end up with the end of freedom.

For these reasons, I concur in the decision of the Court.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28089 October 25, 1967

BARA LIDASAN, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

Suntay for petitioner.

Barrios and Fule for respondent.

SANCHEZ, J.:

The question initially presented to the Commission on Elections,1 is this: Is Republic

Act 4790, which is entitled "An Act Creating the Municipality of Dianaton in the
Province of Lanao del Sur", but which includes barrios located in another province —
Cotabato — to be spared from attack planted upon the constitutional mandate that
"No bill which may be enacted into law shall embrace more than one subject which
shall be expressed in the title of the bill"? Comelec's answer is in the affirmative.
Offshoot is the present original petition for certiorari and prohibition.

On June 18, 1966, the Chief Executive signed into law House Bill 1247, known as
Republic Act 4790, now in dispute. The body of the statute, reproduced in haec
verba, reads:

Sec. 1. Barrios Togaig, Madalum, Bayanga, Langkong, Sarakan, Kat-bo,

Digakapan, Magabo, Tabangao, Tiongko, Colodan, Kabamakawan, Kapatagan,
Bongabong, Aipang, Dagowan, Bakikis, Bungabung, Losain, Matimos and
Magolatung, in the Municipalities of Butig and Balabagan, Province of Lanao
del Sur, are separated from said municipalities and constituted into a distinct
and independent municipality of the same province to be known as the
Municipality of Dianaton, Province of Lanao del Sur. The seat of government of
the municipality shall be in Togaig.

Sec. 2. The first mayor, vice-mayor and councilors of the new municipality
shall be elected in the nineteen hundred sixty-seven general elections for
local officials.

Sec. 3. This Act shall take effect upon its approval.

It came to light later that barrios Togaig and Madalum just mentioned are within the
municipality of Buldon, Province of Cotabato, and that Bayanga, Langkong, Sarakan,
Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan and Kabamakawan are
parts and parcel of another municipality, the municipality of Parang, also in the
Province of Cotabato and not of Lanao del Sur.

Prompted by the coming elections, Comelec adopted its resolution of August 15,
1967, the pertinent portions of which are:

For purposes of establishment of precincts, registration of voters and for other

election purposes, the Commission RESOLVED that pursuant to RA 4790, the
new municipality of Dianaton, Lanao del Sur shall comprise the barrios of
Kapatagan, Bongabong, Aipang, Dagowan, Bakikis, Bungabung, Losain,
Matimos, and Magolatung situated in the municipality of Balabagan, Lanao del
Sur, the barrios of Togaig and Madalum situated in the municipality of Buldon,
Cotabato, the barrios of Bayanga, Langkong, Sarakan, Kat-bo, Digakapan,
Magabo, Tabangao, Tiongko, Colodan and Kabamakawan situated in the
municipality of Parang, also of Cotabato.

Doubtless, as the statute stands, twelve barrios — in two municipalities in the

province of Cotabato — are transferred to the province of Lanao del Sur. This brought
about a change in the boundaries of the two provinces.

Apprised of this development, on September 7, 1967, the Office of the President,

through the Assistant Executive Secretary, recommended to Comelec that the
operation of the statute be suspended until "clarified by correcting legislation."

Comelec, by resolution of September 20, 1967, stood by its own interpretation,

declared that the statute "should be implemented unless declared unconstitutional
by the Supreme Court."
This triggered the present original action for certiorari and prohibition by Bara
Lidasan, a resident and taxpayer of the detached portion of Parang, Cotabato, and a
qualified voter for the 1967 elections. He prays that Republic Act 4790 be declared
unconstitutional; and that Comelec's resolutions of August 15, 1967 and September
20, 1967 implementing the same for electoral purposes, be nullified.

1. Petitioner relies upon the constitutional requirement aforestated, that "[n]o bill
which may be enacted into law shall embrace more than one subject which shall be
expressed in the title of the bill."2

It may be well to state, right at the outset, that the constitutional provision contains
dual limitations upon legislative power. First. Congress is to refrain from
conglomeration, under one statute, of heterogeneous subjects. Second. The title of
the bill is to be couched in a language sufficient to notify the legislators and the
public and those concerned of the import of the single subject thereof.

Of relevance here is the second directive. The subject of the statute must be
"expressed in the title" of the bill. This constitutional requirement "breathes the spirit
of command."3 Compliance is imperative, given the fact that the Constitution does
not exact of Congress the obligation to read during its deliberations the entire text of
the bill. In fact, in the case of House Bill 1247, which became Republic Act 4790, only
its title was read from its introduction to its final approval in the House of
Representatives4 where the bill, being of local application, originated.5

Of course, the Constitution does not require Congress to employ in the title of an
enactment, language of such precision as to mirror, fully index or catalogue all the
contents and the minute details therein. It suffices if the title should serve the
purpose of the constitutional demand that it inform the legislators, the persons
interested in the subject of the bill, and the public, of the nature, scope and
consequences of the proposed law and its operation. And this, to lead them to inquire
into the body of the bill, study and discuss the same, take appropriate action
thereon, and, thus, prevent surprise or fraud upon the legislators.6

In our task of ascertaining whether or not the title of a statute conforms with the
constitutional requirement, the following, we believe, may be taken as guidelines:

The test of the sufficiency of a title is whether or not it is misleading; and,

which technical accuracy is not essential, and the subject need not be stated
in express terms where it is clearly inferable from the details set forth, a title
which is so uncertain that the average person reading it would not be
informed of the purpose of the enactment or put on inquiry as to its contents,
or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any
expression or indication of the real subject or scope of the act, is bad.

xxx xxx xxx

In determining sufficiency of particular title its substance rather than its form
should be considered, and the purpose of the constitutional requirement, of
giving notice to all persons interested, should be kept in mind by the court.7

With the foregoing principles at hand, we take a hard look at the disputed statute.
The title — "An Act Creating the Municipality of Dianaton, in the Province of Lanao
del Sur"8 — projects the impression that solely the province of Lanao del Sur is
affected by the creation of Dianaton. Not the slightest intimation is there that
communities in the adjacent province of Cotabato are incorporated in this new Lanao
del Sur town. The phrase "in the Province of Lanao del Sur," read without subtlety or
contortion, makes the title misleading, deceptive. For, the known fact is that the
legislation has a two-pronged purpose combined in one statute: (1) it creates the
municipality of Dianaton purportedly from twenty-one barrios in the towns of Butig
and Balabagan, both in the province of Lanao del Sur; and (2) it also dismembers two
municipalities in Cotabato, a province different from Lanao del Sur.

The baneful effect of the defective title here presented is not so difficult to perceive.
Such title did not inform the members of Congress as to the full impact of the law; it
did not apprise the people in the towns of Buldon and Parang in Cotabato and in the
province of Cotabato itself that part of their territory is being taken away from their
towns and province and added to the adjacent Province of Lanao del Sur; it kept the
public in the dark as to what towns and provinces were actually affected by the bill.
These are the pressures which heavily weigh against the constitutionality of Republic
Act 4790.

Respondent's stance is that the change in boundaries of the two provinces resulting
in "the substantial diminution of territorial limits" of Cotabato province is "merely the
incidental legal results of the definition of the boundary" of the municipality of
Dianaton and that, therefore, reference to the fact that portions in Cotabato are
taken away "need not be expressed in the title of the law." This posture — we must
say — but emphasizes the error of constitutional dimensions in writing down the title
of the bill. Transfer of a sizeable portion of territory from one province to another of
necessity involves reduction of area, population and income of the first and the
corresponding increase of those of the other. This is as important as the creation of a
municipality. And yet, the title did not reflect this fact.

Respondent asks us to read Felwa vs. Salas, L-16511, October 29, 1966, as
controlling here. The Felwa case is not in focus. For there, the title of the Act
(Republic Act 4695) reads: "An Act Creating the Provinces of Benguet, Mountain
Province, Ifugao, and Kalinga-Apayao." That title was assailed as unconstitutional
upon the averment that the provisions of the law (Section, 8 thereof) in reference to
the elective officials of the provinces thus created, were not set forth in the title of
the bill. We there ruled that this pretense is devoid of merit "for, surely, an Act
creating said provinces must be expected to provide for the officers who shall run the
affairs thereof" — which is "manifestly germane to the subject" of the legislation, as
set forth in its title. The statute now before us stands altogether on a different
footing. The lumping together of barrios in adjacent but separate provinces under
one statute is neither a natural nor logical consequence of the creation of the new
municipality of Dianaton. A change of boundaries of the two provinces may be made
without necessarily creating a new municipality and vice versa.

As we canvass the authorities on this point, our attention is drawn to Hume vs.
Village of Fruitport, 219 NW 648, 649. There, the statute in controversy bears the title
"An Act to Incorporate the Village of Fruitport, in the County of Muskegon." The
statute, however, in its section 1 reads: "The people of the state of Michigan enact,
that the following described territory in the counties of Muskegon and Ottawa
Michigan, to wit: . . . be, and the same is hereby constituted a village corporate, by
the name of the Village of Fruitport." This statute was challenged as void by plaintiff,
a resident of Ottawa county, in an action to restraint the Village from exercising
jurisdiction and control, including taxing his lands. Plaintiff based his claim on Section
20, Article IV of the Michigan State Constitution, which reads: "No law shall embrace
more than one object, which shall be expressed in its title." The Circuit Court decree
voided the statute and defendant appealed. The Supreme Court of Michigan voted to
uphold the decree of nullity. The following, said in Hume, may well apply to this case:

It may be that words, "An act to incorporate the village of Fruitport," would
have been a sufficient title, and that the words, "in the county of Muskegon"
were unnecessary; but we do not agree with appellant that the words last
quoted may, for that reason, be disregarded as surplusage.

. . . Under the guise of discarding surplusage, a court cannot reject a part of

the title of an act for the purpose of saving the act. Schmalz vs. Woody, 56
N.J. Eq. 649, 39 A. 539.

A purpose of the provision of the Constitution is to "challenge the attention of

those affected by the act to its provisions." Savings Bank vs. State of
Michigan, 228 Mich. 316, 200 NW 262.

The title here is restrictive. It restricts the operation of the act of Muskegon
county. The act goes beyond the restriction. As was said in Schmalz vs.
Wooly, supra: "The title is erroneous in the worst degree, for it is misleading."9

Similar statutes aimed at changing boundaries of political subdivisions, which

legislative purpose is not expressed in the title, were likewise declared
unconstitutional."10

We rule that Republic Act 4790 is null and void.

2. Suggestion was made that Republic Act 4790 may still be salvaged with reference
to the nine barrios in the municipalities of Butig and Balabagan in Lanao del Sur, with
the mere nullification of the portion thereof which took away the twelve barrios in the
municipalities of Buldon and Parang in the other province of Cotabato. The reasoning
advocated is that the limited title of the Act still covers those barrios actually in the
province of Lanao del Sur.

We are not unmindful of the rule, buttressed on reason and of long standing, that
where a portion of a statute is rendered unconstitutional and the remainder valid, the
parts will be separated, and the constitutional portion upheld. Black, however, gives
the exception to this rule, thus:

. . . But when the parts of the statute are so mutually dependent and
connected, as conditions, considerations, inducements, or compensations for
each other, as to warrant a belief that the legislature intended them as a
whole, and that if all could not be carried into effect, the legislature would not
pass the residue independently, then, if some parts are unconstitutional, all
the provisions which are thus dependent, conditional, or connected, must fall
with them,11

In substantially similar language, the same exception is recognized in the

jurisprudence of this Court, thus:

The general rule is that where part of a statute is void, as repugnant to the
Organic Law, while another part is valid, the valid portion if separable from the
 invalid, may stand and be enforced. But in order to do this, the valid portion
must be so far independent of the invalid portion that it is fair to presume that
the Legislature would have enacted it by itself if they had supposed that they
could not constitutionally enact the other. . . Enough must remain to make a
complete, intelligible, and valid statute, which carries out the legislative
intent. . . . The language used in the invalid part of the statute can have no
legal force or efficacy for any purpose whatever, and what remains must
express the legislative will independently of the void part, since the court has
no power to legislate, . . . .12

Could we indulge in the assumption that Congress still intended, by the Act, to create
the restricted area of nine barrios in the towns of Butig and Balabagan in Lanao del
Sur into the town of Dianaton, if the twelve barrios in the towns of Buldon and
Parang, Cotabato were to be excluded therefrom? The answer must be in the
negative.

Municipal corporations perform twin functions. Firstly. They serve as an

instrumentality of the State in carrying out the functions of government. Secondly.
They act as an agency of the community in the administration of local affairs. It is in
the latter character that they are a separate entity acting for their own purposes and
not a subdivision of the State.13

Consequently, several factors come to the fore in the consideration of whether a

group of barrios is capable of maintaining itself as an independent municipality.
Amongst these are population, territory, and income. It was apparently these same
factors which induced the writing out of House Bill 1247 creating the town of
Dianaton. Speaking of the original twenty-one barrios which comprise the new
municipality, the explanatory note to House Bill 1247, now Republic Act 4790, reads:

The territory is now a progressive community; the aggregate population is

large; and the collective income is sufficient to maintain an independent
municipality.

This bill, if enacted into law, will enable the inhabitants concerned to govern
themselves and enjoy the blessings of municipal autonomy.

When the foregoing bill was presented in Congress, unquestionably, the totality of
the twenty-one barrios — not nine barrios — was in the mind of the proponent
thereof. That this is so, is plainly evident by the fact that the bill itself, thereafter
enacted into law, states that the seat of the government is in Togaig, which is a
barrio in the municipality of Buldon in Cotabato. And then the reduced area poses a
number of questions, thus: Could the observations as to progressive community,
large aggregate population, collective income sufficient to maintain an independent
municipality, still apply to a motley group of only nine barrios out of the twenty-one?
Is it fair to assume that the inhabitants of the said remaining barrios would have
agreed that they be formed into a municipality, what with the consequent duties and
liabilities of an independent municipal corporation? Could they stand on their own
feet with the income to be derived in their community? How about the peace and
order, sanitation, and other corporate obligations? This Court may not supply the
answer to any of these disturbing questions. And yet, to remain deaf to these
problems, or to answer them in the negative and still cling to the rule on separability,
we are afraid, is to impute to Congress an undeclared will. With the known premise
that Dianaton was created upon the basic considerations of progressive community,
large aggregate population and sufficient income, we may not now say that Congress
intended to create Dianaton with only nine — of the original twenty-one — barrios,
with a seat of government still left to be conjectured. For, this unduly stretches
judicial interpretation of congressional intent beyond credibility point. To do so,
indeed, is to pass the line which circumscribes the judiciary and tread on legislative
premises. Paying due respect to the traditional separation of powers, we may not
now melt and recast Republic Act 4790 to read a Dianaton town of nine instead of the
originally intended twenty-one barrios. Really, if these nine barrios are to constitute a
town at all, it is the function of Congress, not of this Court, to spell out that
congressional will.

Republic Act 4790 is thus indivisible, and it is accordingly null and void in its
totality.14

3. There remains for consideration the issue raised by respondent, namely, that
petitioner has no substantial legal interest adversely affected by the implementation
of Republic Act 4790. Stated differently, respondent's pose is that petitioner is not
the real party in interest.

Here the validity of a statute is challenged on the ground that it violates the
constitutional requirement that the subject of the bill be expressed in its title.
Capacity to sue, therefore, hinges on whether petitioner's substantial rights or
interests are impaired by lack of notification in the title that the barrio in Parang,
Cotabato, where he is residing has been transferred to a different provincial
hegemony.

The right of every citizen, taxpayer and voter of a community affected by legislation
creating a town to ascertain that the law so created is not dismembering his place of
residence "in accordance with the Constitution" is recognized in this jurisdiction.15

Petitioner is a qualified voter. He expects to vote in the 1967 elections. His right to
vote in his own barrio before it was annexed to a new town is affected. He may not
want, as is the case here, to vote in a town different from his actual residence. He
may not desire to be considered a part of hitherto different communities which are
fanned into the new town; he may prefer to remain in the place where he is and as it
was constituted, and continue to enjoy the rights and benefits he acquired therein.
He may not even know the candidates of the new town; he may express a lack of
desire to vote for anyone of them; he may feel that his vote should be cast for the
officials in the town before dismemberment. Since by constitutional direction the
purpose of a bill must be shown in its title for the benefit, amongst others, of the
community affected thereby,16 it stands to reason to say that when the constitutional
right to vote on the part of any citizen of that community is affected, he may become
a suitor to challenge the constitutionality of the Act as passed by Congress.

For the reasons given, we vote to declare Republic Act 4790 null and void, and to
prohibit respondent Commission from implementing the same for electoral purposes.

No costs allowed. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Castro and
Angeles, JJ., concur.
Separate Opinions

FERNANDO, J., dissenting:

With regret and with due recognition of the merit of the opinion of the Court, I find
myself unable to give my assent. Hence these few words to express my stand.

Republic Act No. 4790 deals with one subject matter, the creation of the municipality
of Dianaton in the province of Lanao del Sur. The title makes evident what is the
subject matter of such an enactment. The mere fact that in the body of such statute
barrios found in two other municipalities of another province were included does not
of itself suffice for a finding of nullity by virtue of the constitutional provision invoked.
At the most, the statute to be free from the insubstantial doubts about its validity
must be construed as not including the barrios, located not in the municipalities of
Butig and Balabagan, Lanao del Sur, but in Parang and Baldon, Cotabato.

The constitutional requirement is that no bill which may be enacted into law shall
embrace more than one subject which shall be expressed in the title of the bill.1 This
provision is similar to those found in the Constitution of many American States. It is
aimed against the evils, of the so-called omnibus bills, and log-rolling legislation, and
against surreptitious or unconsidered enactments.2 Where the subject of a bill is
limited to a particular matter, the members of the legislature as well as the people
should be informed of the subject of proposed legislative measures. This
constitutional provision thus precludes the insertion of riders in legislation, a rider
being a provision not germane to the subject matter of the bill.

It is not to be narrowly construed though as to cripple or impede proper legislation.

The construction must be reasonable and not technical. It is sufficient if the title be
comprehensive enough reasonably to include the general object which the statute
seeks to effect without expressing each and every end and means necessary for the
accomplishment of that object. Mere details need not be set forth. The legislature is
not required to make the title of the act a complete index of its contents. The
constitutional provision is satisfied if all parts of an act which relates to its subject
find expression in its title.3

The first decision of this Court, after the establishment of the Commonwealth of the
Philippines, in 1938, construing a provision of this nature, Government v. Hongkong
& Shanghai Bank,4 held that the inclusion of Section 11 of Act No. 4007, the
Reorganization Law, providing for the mode in which the total annual expenses of the
Bureau of Banking may be reimbursed through assessment levied upon all banking
institutions subject to inspection by the Bank Commissioner was not violative of such
a requirement in the Jones Law, the previous organic act. Justice Laurel, however,
vigorously dissented, his view being that while the main subject of the act was
reorganization, the provision assailed did not deal with reorganization but with
taxation. While the case of Government vs. Hongkong & Shanghai Bank was decided
by a bare majority of four justices against three, the present trend seems to be that
the constitutional requirement is to be given the liberal test as indicated in the
majority opinion penned by Justice Abad Santos, and not the strict test as desired by
the majority headed by Justice Laurel.

Such a trend has been reflected in subsequent decisions beginning with Sumulong v.
Commission on Elections,5 up to and including Felwa vs. Salas, a 1966 decision,6 the
opinion coming from Justice Concepcion.
It is true of course that in Philconsa v. Gimenez,7 one of the grounds on which the
invalidity of Republic Act No. 3836 was predicated was the violation of the above
constitutional provision. This Retirement Act for senators and representatives was
entitled "AN ACT AMENDING SUB-SECTION (c), SECTION TWELVE OF
COMMONWEALTH ACT NUMBERED ONE HUNDRED EIGHTY-SIX, AS AMENDED BY
REPUBLIC ACT NUMBERED THIRTY HUNDRED NINETY-SIX." As we noted, the
paragraph in Republic Act No. 3836 deemed objectionable "refers to members of
Congress and to elective officers thereof who are not members of the Government
Service Insurance System. To provide retirement benefits, therefore, for these
officials, would relate to a subject matter which is not germane to Commonwealth Act
No. 186. In other words, this portion of the amendment ( re retirement benefits for
Members of Congress and appointive officers, such as the Secretary and Sergeants-
at-arms for each house) is not related in any manner to the subject of
Commonwealth Act No. 186 establishing the Government Service Insurance System
and which provides for both retirement and insurance benefits to its members."
Nonetheless our opinion was careful to note that there was no abandonment of the
principle of liberality. Thus: "we are not unmindful of the fact that there has been a
general disposition in all courts to construe the constitutional provision with
reference to the subject and title of the Act, liberally."

It would follow therefore that the challenged legislation Republic Act No. 4790 is not
susceptible to the indictment that the constitutional requirement as to legislation
having only one subject which should be expressed in his title was not met. The
subject was the creation of the municipality of Dianaton. That was embodied in the
title.

It is in the light of the aforementioned judicial decisions of this Court, some of the
opinions coming from jurists illustrious for their mastery of constitutional law and
their acknowledged erudition, that, with all due respect, I find the citation from
Corpus Juris Secundum, unnecessary and far from persuasive. The State decisions
cited, I do not deem controlling, as the freedom of this Court to accept or reject
doctrines therein announced cannot be doubted.

Wherein does the weakness of the statute lie then? To repeat, several barrios of two
municipalities outside Lanao del Sur were included in the municipality of Dianaton of
that province. That itself would not have given rise to a constitutional question
considering the broad, well-high plenary powers possessed by Congress to alter
provincial and municipal boundaries. What justified resort to this Court was the
congressional failure to make explicit that such barrios in two municipalities located
in Cotabato would thereafter form part of the newly created municipality of Dianaton,
Lanao del Sur.

To avoid any doubt as to the validity of such statute, it must be construed as to

exclude from Dianaton all of such barrios mentioned in Republic Act No. 4790 found
in municipalities outside Lanao del Sur. As thus interpreted, the statute can meet the
test of the most rigid scrutiny. Nor is this to do violence to the legislative intent. What
was created was a new municipality from barrios named as found in Lanao del Sur.
This construction assures precisely that.

This mode of interpreting Republic Act No. 4790 finds support in basic principles
underlying precedents, which if not precisely controlling, have a persuasive ring. In
Radiowealth v. Agregado,8 certain provisions of the Administrative Code were
interpreted and given a "construction which would be more in harmony with the
tenets of the fundamental law." In Sanchez v. Lyon Construction,9 this Court had a
similar ruling: "Article 302 of the Code of Commerce must be applied in consonance
with [the relevant] provisions of our Constitution." The above principle gained
acceptance at a much earlier period in our constitutional history. Thus in a 1913
decision, In re Guariña:10 "In construing a statute enacted by the Philippine
Commission we deem it our duty not to give it a construction which would be
repugnant to an Act of Congress, if the language of the statute is fairly susceptible of
another construction not in conflict with the higher law. In doing so, we think we
should not hesitate to disregard contentions touching the apparent intention of the
legislator which would lead to the conclusion that the Commission intended to enact
a law in violation of the Act of Congress. However specious the argument may be in
favor of one of two possible constructions, it must be disregarded if on examination it
is found to rest on the contention that the legislator designed an attempt to
transcend the rightful limits of his authority, and that his apparent intention was to
enact an invalid law."

American Supreme Court decisions are equally explicit. The then Justice, later Chief
Justice, Stone, construed statutes "with an eye to possible constitutional limitations
so as to avoid doubts as to [their] validity."11 From the pen of the articulate jurist,
Frankfurter:12 "Accordingly, the phrase "lobbying activities" in the resolution must be
given the meaning that may fairly be attributed to it, having special regard for the
principle of constitutional adjudication which makes it decisive in the choice of fair
alternatives that one construction may raise serious constitutional questions avoided
by another." His opinion in the Rumely case continues with the above
pronouncement of Stone and two other former Chief Justices: "In the words of Mr.
Chief Justice Taft, '(i)t is our duty in the interpretation of federal statutes to reach
conclusion which will avoid serious doubt of their constitutionality', Richmond Screw
Anchor Co. v. United States, 275 US 331, 346, 48 S. Ct. 194, 198, 72 L. ed. 303. . . .
As phrased by Mr. Chief Justice Hughes, "if a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question may be avoided.'
Crowell v. Benson, 285, 296, 76 L. ed. 598, and cases cited." The prevailing doctrine
then as set forth by Justice Clark in a 1963 decision,13 is that courts "have
consistently sought an interpretation which supports the constitutionality of
legislation." Phrased differently by Justice Douglas, the judiciary favors "that
interpretation of legislation which gives it the greater change of surviving the test of
constitutionality."14

It would follow then that both Philippine and American decisions unite in the view
that a legislative measure, in the language of Van Devanter "should not be given a
construction which will imperil its validity where it is reasonably open to construction
free from such peril."15 Republic Act No. 4790 as above construed incurs no such risk
and is free from the peril of nullity.

So I would view the matter, with all due acknowledgment of the practical
considerations clearly brought to light in the opinion of the Court.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23326 December 18, 1965

PHILIPPINE CONSTITUTION ASSOCIATION, INC., JOSE E. ROMERO, SALVADOR

ARANETA, GUILLERMO B. GUEVARA, PIO PEDROSA, CONRADO BENITEZ, JOSE
M. ARUEGO, SOTERO H. LAUREL, FELIXBERTO M. SERRANO, and ROMAN
OZAETA, petitioners,
vs.
PEDRO M. GIMENEZ, JOSE VELASCO, ELADIO SALITA and JOSE AVILES,
respondents.
Roman Ozaeta, Guillermo B. Guevara, Jose M. Aruego, Sotero H. Laurel and Felixberto
M. Serrano for themselves and for other petitioners.
Office of the Solicitor General for respondents.

REGALA, J.:

We are called upon in this case to decide the grave and fundamental problem of the
constitutionality of Republic Act No. 3836 "insofar as the same allows retirement
gratuity and commutation of vacation and sick leave to Senators and
Representatives, and to the elective officials of both houses (of Congress)." The suit
was instituted by the Philippine Constitution Association, Inc. (Philconsa, for short), a
non-profit civic organization, duly incorporated under Philippine laws, by way of a
petition for prohibition with preliminary injunction to restrain the Auditor General of
the Philippines and the disbursing officers of both Houses of Congress from "passing
in audit the vouchers, and from countersigning the checks or treasury warrants for
the payment to any former Senator or former Member of the House of
Representatives of retirement and vacation gratuities pursuant to Republic Act No.
3836; and likewise restraining the respondent disbursing officers of the House and
Senate, respectively, and their successors in office from paying the said retirement
and vacation gratuities."

It is argued that the above-numbered Republic Act, at least to the end that it
provided for the retirement of the members of Congress in the manner and terms
that it did, is unconstitutional and void. The challenge to the constitutionality of the
law is centered on the following propositions:

1. The provision for the retirement of the members and certain officers of
Congress is not expressed in the title of the bill, in violation of section 21 (1)
of Article VI of the Constitution.

2. The provision on retirement gratuity is an attempt to circumvent the

Constitutional ban on increase of salaries of the members of Congress during
their term of office, contrary to the provisions of Article VI, Section 14 of the
Constitution.

3. The same provision constitutes "selfish class legislation" because it allows

members and officers of Congress to retire after twelve (12) years of service
and gives them a gratuity equivalent to one year salary for every four years of
service, which is not refundable in case of reinstatement or re-election of the
retiree, while all other officers and employees of the government can retire
only after at least twenty (20) years of service and are given a gratuity which
is only equivalent to one month salary for every year of service, which, in any
case, cannot exceed 24 months.

4. The provision on vacation and sick leave, commutable at the highest rate
received, insofar as members of Congress are concerned, is another attempt
of the legislators to further increase their compensation in violation of the
Constitution.

The text of Republic Act No. 3836

The text of Republic Act No. 3836 reads:

 AN ACT AMENDING SUBSECTION (c), SECTION TWELVE OF COMMONWEALTH
ACT NUMBERED ONE HUNDRED EIGHTY-SIX, AS AMENDED BY REPUBLIC ACT
NUMBERED THIRTY HUNDRED NINETY-SIX:

Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled:

SECTION 1. Subsection (c), Section twelve of Commonwealth Act Numbered

One Hundred eighty-six, as amended by Republic Act Numbered Thirty
hundred ninety-six, is further amended to read as follows:

"(c) Retirement is likewise allowed to a member, regardless of age, who has

rendered at least twenty years of service. The benefit shall, in addition to the
return of his personal contributions plus interest and the payment of the
corresponding employer's premiums described in subsection (a) of Section
five hereof, without interest, be only a gratuity equivalent to one month's
salary for every year of service, based on the highest rate received, but not to
exceed twenty-four months: Provided, That the retiring officer or employee
has been in the service of the said employer or office for at least four years
immediately preceding his retirement.

"Retirement is also allowed to a senator or a member of the House of

Representatives and to an elective officer of either House of the Congress,
regardless of age, provided that in the case of a Senator or Member, he must
have served at least twelve years as a Senator and/or as a member of the
House of Representatives, and, in the case of an elective officer of either
House, he must have served the government for at least twelve years, not
less than four years of which must have been rendered as such elective
officer: Provided, That the gratuity payable to a retiring senator, member of
the House of Representatives, or elective officer, of either House, shall be
equivalent to one year's salary for every four years of service in the
government and the same shall be exempt from any tax whatsoever and shall
be neither liable to attachment or execution nor refundable in case of
reinstatement or re-election of the retiree.

"This gratuity is payable by the employer or office concerned which is hereby

authorized to provide the necessary appropriation or pay the same from any
unexpended items of appropriations or savings in its appropriations or saving
in its appropriations.

"Elective or appointive officials and employees paid gratuity under this

subsection shall be entitled to the commutation of the unused vacation and
sick leave, based on the highest rate received, which they may have to their
credit at the time of retirement."

SECTION 2. This Act shall take effect upon its approval.

Approved, June 22, 1963.

The Solicitor General's Office, in representation of the respondent, filed its answer on
September 8, 1964, and contends, by way of special and affirmative defenses that:
 1. The grant of retirement or pension benefits under Republic Act No. 3836 to
the officers objected to by the petitioner does not constitute "forbidden
compensation" within the meaning of Section 14 of Article VI of the Philippine
Constitution.

2. The title of the law in question sufficiently complies with the provisions of
Section 21, Article VI, of the Constitution that "no bill which may be enacted
into law shall embrace more than one subject which shall be expressed in the
title of the bill.

3. The law in question does not constitute legislation.

4. Certain indispensable parties, specifically the elected officers of Congress

who are authorized to approve vouchers for payments for funds under the law
in question, and the claimants to the vouchers to be presented for payment
under said items, were not included in the petition.

5. The petitioner has no standing to institute this suit.

6. The payment of commutable vacation and sick leave benefits under the
said Act is merely "in the nature of a basis for computing the gratuity due
each retiring member" and, therefore, is not an indirect scheme to increase
their salary.

A brief historical background of Republic Act No. 3836

Republic Act No. 3836 was originally House Bill No. 6051, which was introduced by
Congressmen Marcial R. Pimentel of Camarines Norte and Marcelino R. Veloso of the
Third District of Leyte, on May 6, 1963. On the same date, it was referred to the
Committee on Civil Service. which on the following May 8, submitted its REPORT No.
3129, recommending approval of the bill with amendments, among others, that the
word "TWENTY" in the bill as filed — representing the number of years that a senator
or member must serve in Congress to entitle him to retirement under the bill — must
be reduced to "TWELVE" years, and that the following words were inserted, namely,
"AND THE SAME (referring to gratuity) SHALL BE EXEMPT FROM ANY TAX
WHATSOEVER AND SHALL NOT BE LIABLE FROM ATTACHMENT OR EXECUTION NOR
REFUNDABLE IN CASE OF REINSTATEMENT OR REELECTION OF THE RETIREE." On
May 8, 1963, the bill with the proposed amendments was approved on second
reading. It was passed on third reading on May 13, 1963, and on the same day was
sent to the Senate, which, in turn, on May 23, 1963, passed it without amendment.
The bill was finally approved on June 22, 1963. As explained in the EXPLANATORY
NOTE attached to the bill, among others —

The inclusion of members of Congress in subsection (c), Section 12 of C.A.

186, as amended, will enable them to retire voluntarily, regardless of age,
after serving a minimum of twenty years as a Member of Congress. This
gratuity will insure the security of the family of the retiring member of
Congress with the latter engaging in other activities which may detract from
his exalted position and usefulness as lawmaker. It is expected that with this
assurance of security for his loved ones, deserving and well-intentioned but
poor men will be attracted to serve their people in Congress.
As finally approved, the law (Subsection [c], paragraph 2, Section 1, R.A. 3836) allows
a Senator or a Member of the House of Representatives and an elective officer of
either House of Congress to retire regardless of age. To be eligible for retirement, he
must have served for at least twelve years as such Senator and/or as member of the
House of Representatives. For an elective officer of either House, he must have
served the government for at least twelve years, of which not less than four years
must have been rendered as such elective officer. The gratuity payable by the
employer or office concerned is equivalent to one year's salary for every four years of
service in the government. Said gratuity is exempt from taxation, not liable to
attachment or execution, and not refundable in case of reinstatement or re-election
of the retiree.

First legal point — personality of the Petitioner to bring suit.

The first point to be considered is whether petitioner Philconsa has a standing to

institute this action. This Court has not hesitated to examine past decisions involving
this matter. This Court has repeatedly held that when the petitioner, like in this case,
is composed of substantial taxpayers, and the outcome will affect their vital interests,
they are allowed to bring this suit. (Pascual v. Secretary, G.R. No. L-10405, December
29, 1960; and Gonzales v. Hechanova, 60 Off. Gaz. 802 [1963]).

The petitioner, Philconsa, is precisely a non-profit, civic organization composed of

several leaders from all walks of life whose main objective is to uphold the principles
of the Constitution.

In rejecting the motion to dismiss in the case of Pascual v. Secretary, supra, this
Court stated, among other things, that "there are many decisions nullifying, at the
instance of the taxpayers, laws providing the disbursement of public funds, upon the
theory that the expenditure of public funds by an officer of the State for the purpose
of administering an unconstitutional act constitutes a misappropriation of such funds,
which may be enjoined at the request of the taxpayers."1 This legislation (Republic
Act 3836) involves the disbursement of public funds.

We are not, however, unmindful of the ruling laid down by the Supreme Court of the
United States in the case of Massachusetts v. Mellon, 262 U.S. 447, holding that:

... the relation of a taxpayer of the United States to the Federal Government is
very different. His interest in the moneys of the Treasury — partly realized
from taxation and partly from other sources — is shared with millions of
others; is comparatively minute and indeterminable; and the effect upon
future taxation of any payment out of the funds, so remote, fluctuating and
uncertain, that no basis is afforded for an appeal to the preventive powers of
equity.

The general view in the United States, which is followed here, is stated in the
American Jurisprudence, thus —

In the determination of the degree of interest essential to give the requisite

standing to attack the constitutionality of a statute the general rule is that not
only persons individually affected, but also taxpayers have sufficient interest
in preventing the illegal expenditure of moneys raised by taxation and may
therefore question the constitutionality of statutes requiring expenditure of
public moneys. (11 Am. Jur. 761; emphasis supplied.)
As far as the first point is concerned, We hold, therefore, that the contention of the
Solicitor General is untenable.

Second legal point —Whether or not Republic Act No. 3836 falls within the prohibition
embodied in Art. VI, section 14 of the Constitution.

The first constitutional question is whether Republic Act 3836 violates Section 14,
Article VI, of the Constitution, which reads as follows:

The senators and the Members of the House of Representatives shall, unless
otherwise provided by law, receive an annual compensation of seven
thousand two hundred pesos each, including per diems and other
emoluments or allowances, and exclusive only of travelling expenses to and
from their respective districts in the case of Members of the House of
Representative and to and from their places of residence in the case of
Senators, when attending sessions of the Congress. No increase in said
compensation shall take effect until after the expiration of the full term of all
the Members of the Senate and of the House of Representatives approving
such increase. Until otherwise provided by law, the President of the Senate
and the Speaker of the House of Representatives shall each receive an annual
compensation of sixteen thousand pesos (emphasis supplied)

Before discussing this point, it is worthy to note that the Constitution embodies some
limitations and prohibitions upon the members of Congress, to wit:

1. They may not hold any other office or employment in the Government
without forfeiting their respective seats;

2. They shall not be appointed, during the time for which they are elected, to
any civil office which may have been created or the emoluments whereof shall
have been increased while they were members of Congress; (Section 16,
Article VI, Constitution)

3. They cannot be financially interested in any franchise;

4. They cannot appear in any civil case wherein the Government is an adverse
party;

5. They cannot appear as counsel before any Electoral Tribunal; and

6. They cannot appear as counsel in any criminal case where an officer or

employee of the Government is accused. (Section 17, Article VI, Constitution)

In addition to the above prohibitions, the Anti-Graft Law (Republic Act 3019) also
prohibits members of Congress to have any special interest in any specific business
which will directly or indirectly be favored by any law or resolution authored by them
during their term of office.

It is thus clear that the Constitutional Convention wisely surrounded the Constitution
with these limitations and prohibitions upon Members of Congress. This is a practical
demonstration or application of the principle of the and balances which is one of the
peculiar characteristics of our Constitution. In the light of this background, can We
conclude that Congress can validly enact Republic Act 3836, providing retirement
benefits to its members, without violating the provisions in the aforementioned
Article VI, Section 14, of the Constitution, regarding increase of the compensation act
including other emoluments?

It is worthy to note that the original salary for the members of the National Assembly
(unicameral body) was fixed at P5,000.00 per annum each. This was raised to P7,200
per annum by the enactment of the 1940 Constitutional amendment, when the
unicameral body, the National Assembly, was changed to Congress, composed of two
bodies, the Senate and the House of Representatives. Again, in 1964, by the
enactment of Republic Act 4143, the salary for the Members of Congress was raised
to P32,000.00 per annum for each of them; and for the President of the Senate and
the Speaker of the House of Representatives, to P40,000.00 per annum each.

Likewise, it is significant that, as stated above, when the Constitutional Convention

first determined the compensation for the Members of Congress, the amount fixed by
it was only P5,000.00 per annum, but it embodies a special proviso which reads as
follows: "No increase in said compensation shall take effect until after the expiration
of the full term of all the members of the National Assembly elected subsequent to
approval of such increase." In other words, under the original constitutional provision
regarding the power of the National Assembly to increase the salaries of its
members, no increase would take effect until after the expiration of the full term of
the members of the Assembly elected subsequent to the approval of such increase.
(See Aruego, The Framing of the Constitution, Vol. 1, pp. 296-300; Sinco, Philippine
Government and Political Law, 4th ed., p. 187)

This goes to show how zealous were the members of the Constitutional Convention in
guarding against the temptation for members of Congress to increase their salaries.
However, the original strict prohibition was modified by the subsequent provision
when the Constitutional amendments were approved in 19402

The Constitutional provision in the aforementioned Section 14, Article VI, includes in
the term compensation "other emoluments." This is the pivotal point on this
fundamental question as to whether the retirement benefits as provided for in
Republic Act 3836 fall within the purview of the term "other emoluments."

Most of the authorities and decided cases have regarded "emolument" as "the profit
arising from office or employment; that which is received as compensation for
services or which is annexed to the possession of an office, as salary, fees and
perquisites.3

In another set of cases, "emolument" has been defined as "the profit arising from
office or employment; that which is received as compensation for services, or which
is annexed to the possession of office, as salary, fees and perquisites; advantage,
gain, public or private." The gain, profit or advantage which is contemplated in the
definition or significance of the word "emolument" as applied to public officers,
clearly comprehends, We think, a gain, profit, or advantage which is pecuniary in
character. (citing Taxpayers' League of Cargon County v. McPherson, 54 P. 2d. 897,
90l.: 49 Wy. 26; 106 A.L.R. 767)

In Schieffelin v. Berry, 216 N.Y.S. (citing Wright v. Craig, 202 App. Div. 684, 195
N.Y.S. 391, affirmed 234 N.Y. 548, 138 N.E. 441), it has been established that
pensions and retirement allowances are part of compensation of public officials;
otherwise their payment would be unconstitutional.
In another case, State v. Schmahl, 145 N.W. 795, 125 Minn. 104, it is stated that "as
used in Article 4, section 9, of the Constitution of Minnesota, providing that no
Senator or Representative shall hold any office, the emoluments of which have been
increased during the session of the Legislature of which he was a member, until after
the expiration of his term of office in the Legislature, the word "emoluments" does
not refer to the fixed salary alone, but includes fees and compensation as the
incumbent of the office is by law entitled to receive because he holds such office and
performed some service required of the occupant thereof."

From the decisions of these cases, it is evident that retirement benefit is a form or
another species of emolument, because it is a part of compensation for services of
one possessing any office.

Republic Act No. 3836 provides for an increase in the emoluments of Senators and
Members of the House of Representatives, to take effect upon the approval of said
Act, which was on June 22, 1963. Retirement benefits were immediately available
thereunder, without awaiting the expiration of the full term of all the Members of the
Senate and the House of Representatives approving such increase. Such provision
clearly runs counter to the prohibition in Article VI, Section 14 of the Constitution.

Third Legal Point — Whether or not the law in question violates the equal protection
clause of the Constitution.

Another reason in support of the conclusion reached herein is that the features of
said Republic Act 3836 are patently discriminatory, and therefore violate the equal
protection clause of the Constitution. (Art. III, Sec. 1, part. 1.)

In the first place, while the said law grants retirement benefits to Senators and
Members of the House of Representatives who are elective officials, it does not
include other elective officials such as the governors of provinces and the members
of the provincial boards, and the elective officials of the municipalities and chartered
cities.

The principle of equal protection of law embodied in our Constitution has been fully
explained by Us in the case of People v. Vera, 65 Phil. 56, 126, where We stated that
the classification to be reasonable must be based upon substantial distinctions which
make real differences and must be germane to the purposes of the law.

As well stated by Willoughby on the Constitution of the United States (second

edition), p. 1937, the principle of the requirement of equal protection of law applies
to all persons similarly situated. Why limit the application of the benefits of Republic
Act 3836 to the elected members of Congress? We feel that the classification here is
not reasonable. (See also Sinco, Philippine Political Law, 11th ed. [1962]; Selected
Essays on Constitutional Law [1938-62], p. 789; The Equal Protection of the Laws, 37
Cal. Law Rev. 341.)

Secondly, all members of Congress under Republic Act 3836 are given retirement
benefits after serving twelve years, not necessarily continuous, whereas, most
government officers and employees are given retirement benefits after serving for at
least twenty years. In fact, the original bill of Act 3836 provided for twenty years of
service.
In the third place, all government officers and employees are given only one
retirement benefit irrespective of their length of service in the government, whereas,
under Republic Act 3836, because of no age limitation, a Senator or Member of the
House of Representatives upon being elected for 24 years will be entitled to two
retirement benefits or equivalent to six years' salary.

Also, while the payment of retirement benefits (annuity) to an employee who had
been retired and reappointed is suspended during his new employment (under
Commonwealth Act 186, as amended), this is not so under Republic Act 3836.

Lastly, it is peculiar that Republic Act 3836 grants retirement benefits to officials who
are not members of the Government Service Insurance System. Most grantees of
retirement benefits under the various retirement laws have to be members or must
at least contribute a portion of their monthly salaries to the System.4

The arguments advanced against the discriminatory features of Republic Act 3836,
as far as Members of Congress are concerned, apply with equal force to the elected
officers of each House, such as the Secretaries and the Sergeants-at-arms. Under
Republic Act 3836, the Secretaries and Sergeants-at-arms of each House are given
the benefits of retirement without having served for twenty years as required with
other officers and employees of the Government.

Fourth Legal Point — Whether or not the title of Republic Act No. 3836 is germane to
the subject matter expressed in the act.

Another Constitutional point to determine is whether the title of Republic Act 3836
complies with the requirement of paragraph 1, section 21, Article VI of the
Constitution, which reads as follows:

No bill which may be enacted into law shall embrace more than one subject
which shall be expressed in the title of the bill.

We are not unmindful of the fact that there has been a general disposition in all
courts to construe the constitutional provision with reference to the subject and title
of the Act, liberally.

It is the contention of petitioner that the said title of Republic Act 3836 gives no
inkling or notice whatsoever to the public regarding the retirement gratuities and
commutable vacation and sick leave privileges to members of Congress. It is claimed
that petitioner learned of this law for the first time only when Jose Velasco, disbursing
officer of the House, testified on January 30, 1964, before Justice Labrador, in
connection with the hearing of the case, and he revealed that in 1963, Congress
enacted the retirement law for its members. In fact the Appropriation Act for the
fiscal year 1964-65, Republic Act No. 4164, provides:

13. For payment of retirement gratuities of members of the Senate pursuant

to the provisions of Republic Act No. 3836: PROVIDED, That no portion of this
Appropriation shall be transferred to any other item until all approved claims
shall have been paid — P210,000.00.

In the appropriations for the House of Representatives the following items appear:
 7. For government share of premiums on life insurance and retirement of
Members and employees of the House of Representatives, as provided for
under Republic Act No. 1616 — P300,000.00

8. For payment of the cash commutation of the accumulated vacation and sick
leaves as provided for under Republic Act No. 611, and retirement gratuities
of Members and employees of the House of Representatives under Republic
Act No. 1616 —P1,300,000.00.

In the Appropriations Act of 1965-1966 (Republic Act No. 4642), the following item
appears in the appropriations for the Senate:

13. For payment of retirement gratuities of Senate personnel pursuant to the

provisions of Republic Act No. 1616: PROVIDED, That no portion of this
appropriation shall be transferred to any other item until all approved claims
shall have been paid — P100,000.00.

It is thus clear that in the Appropriations Act for 1965-1966, the item in the Senate
for P210,000.00 to implement Republic Act 3836 was eliminated.

In the appropriations for the House (1965-1966), the following items appear:

7. For government share of premiums on life insurance and retirement of

Members and employees of the House Of Representatives as provided for
under Republic Act No. 1616 — P1,200,000.00.

8. For payment of the cash commutation of the accumulated vacation and sick
leaves as provided for under Republic Act No. 611, and retirement gratuities
of Members and employees of the House of Representatives under Republic
Act No. 1616 — P1,700,000.00.

It is to be observed that under Republic Act 3836, amending the first paragraph of
section 12, subsection (c) of Commonwealth Act 186, as amended by Republic Acts
Nos. 660 and. 3096, the retirement benefits are granted to members of the
Government Service Insurance System, who have rendered at least twenty years of
service regardless of age. This paragraph is related and germane to the subject of
Commonwealth Act No. 186.

On the other hand, the succeeding paragraph of Republic Act 3836 refers to
members of Congress and to elective officers thereof who are not members of the
Government Service Insurance System. To provide retirement benefits, therefore, for
these officials, would relate to subject matter which is not germane to
Commonwealth Act No. 186. In other words, this portion of the amendment (re
retirement benefits for Members of Congress and elected officers, such as the
Secretary and Sergeants-at-arms for each House) is not related in any manner to the
subject of Commonwealth Act 186 establishing the Government Service Insurance
System and which provides for both retirement and insurance benefits to its
members.

Parenthetically, it may be added that the purpose of the requirement that the subject
of an Act should be expressed in its title is fully explained by Cooley, thus: (1) to
prevent surprise or fraud upon the Legislature; and (2) to fairly apprise the people,
through such publication of legislation that are being considered, in order that they
may have the opportunity of being heard thereon by petition or otherwise, if they
shall so desire (Cooley, Constitutional Limitations, 8th ed., Vol. 1, p. 162; See also
Martin, Political Law Reviewer, Book One [1965], p. 119)

With respect to sufficiency of title this Court has ruled in two cases:

The Constitutional requirement with respect to titles of statutes as sufficient

to reflect their contents is satisfied if all parts of a law relate to the subject
expressed in its title, and it is not necessary that the title be a complete index
of the content. (People v. Carlos, 78 Phil. 535)

The Constitutional requirement that the subject of an act shall be expressed in

its title should be reasonably construed so as not to interfere unduly with the
enactment of necessary legislation. It should be given a practical, rather than
technical, construction. It should be a sufficient compliance with such
requirement if the title expresses the general subject and all the provisions of
the statute are germane to that general subject. (Sumulong v. The
Commission on Elections, 73 Phil. 288, 291)

The requirement that the subject of an act shall be expressed in its title is wholly
illustrated and explained in Central Capiz v. Ramirez, 40 Phil. 883. In this case, the
question raised was whether Commonwealth Act 2784, known as the Public Land Act,
was limited in its application to lands of the public domain or whether its provisions
also extended to agricultural lands held in private ownership. The Court held that the
act was limited to lands of the public domain as indicated in its title, and did not
include private agricultural lands. The Court further stated that this provision of the
Constitution expressing the subject matter of an Act in its title is not a mere rule of
legislative procedure, directory to Congress, but it is mandatory. It is the duty of the
Court to declare void any statute not conforming to this constitutional provision. (See
Walker v. State, 49 Alabama 329; Cooley, Constitutional Limitations, pp. 162-164;5
See also Agcaoili v. Suguitan, 48 Phil. 676; Sutherland on Statutory Construction, Sec.
111.)

In the light of the history and analysis of Republic Act 3836, We conclude that the
title of said Republic Act 3836 is void as it is not germane to the subject matter and is
a violation of the aforementioned paragraph 1, section 21, Article VI of the
Constitution.

In short, Republic Act 3836 violates three constitutional provisions, namely: first, the
prohibition regarding increase in the salaries of Members of Congress; second, the
equal protection clause; and third, the prohibition that the title of a bill shall not
embrace more than one subject.

IN VIEW OF THE FOREGOING CONSIDERATIONS, Republic Act No. 3836 is hereby

declared null and void, in so far as it refers to the retirement of Members of Congress
and the elected officials thereof, as being unconstitutional. The restraining order
issued in our resolution on December 6, 1965 is hereby made permanent. No costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Dizon, Makalintal, Bengzon,
J.P. and Zaldivar, JJ., concur.

Barrera, J., took no part

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his

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

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

G.R. No. 169659 April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR

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

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

G.R. No. 169660 April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,

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

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

G.R. No. 169667 April 20, 2006

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

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

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

G.R. No. 169834 April 20, 2006

PDP- LABAN, Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

x-------------------------x
G.R. No. 171246 April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE

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

DECISION

CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in

the early history of republican thought, however, it has been recognized that the
head of government may keep certain information confidential in pursuit of the public
interest. Explaining the reason for vesting executive power in only one magistrate, a
distinguished delegate to the U.S. Constitutional Convention said: "Decision, activity,
secrecy, and dispatch will generally characterize the proceedings of one man, in a
much more eminent degree than the proceedings of any greater number; and in
proportion as the number is increased, these qualities will be diminished."1

History has been witness, however, to the fact that the power to withhold information
lends itself to abuse, hence, the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the
President has abused such power by issuing Executive Order No. 464 (E.O. 464) last
September 28, 2005. They thus pray for its declaration as null and void for being
unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that the
issuance under review has come from a co-equal branch of government, which thus
entitles it to a strong presumption of constitutionality. Once the challenged order is
found to be indeed violative of the Constitution, it is duty-bound to declare it so. For
the Constitution, being the highest expression of the sovereign will of the Filipino
people, must prevail over any issuance of the government that contravenes its
mandates.

In the exercise of its legislative power, the Senate of the Philippines, through its
various Senate Committees, conducts inquiries or investigations in aid of legislation
which call for, inter alia, the attendance of officials and employees of the executive
department, bureaus, and offices including those employed in Government Owned
and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the
Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued

invitations to various officials of the Executive Department for them to appear on
September 29, 2005 as resource speakers in a public hearing on the railway project
of the North Luzon Railways Corporation with the China National Machinery and
Equipment Group (hereinafter North Rail Project). The public hearing was sparked by
a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the
alleged overpricing and other unlawful provisions of the contract covering the North
Rail Project.
The Senate Committee on National Defense and Security likewise issued invitations2
dated September 22, 2005 to the following officials of the AFP: the Commanding
General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of
the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the
AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig.
Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy
(PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of
the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public
hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of
Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has
Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral
Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator
Jinggoy E. Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-
Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon
delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate
Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal – Resolution
Directing the Committee on National Defense and Security to Conduct an Inquiry, in
Aid of Legislation, and in the National Interest, on the Role of the Military in the So-
called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator
Biazon – Resolution Directing the Committee on National Defense and Security to
Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the
Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP
Chief of Staff, General Generoso S. Senga who, by letter3 dated September 27, 2005,
requested for its postponement "due to a pressing operational situation that
demands [his utmost personal attention" while "some of the invited AFP officers are
currently attending to other urgent operational matters."

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

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

Senate President Drilon likewise received on September 28, 2005 a letter6 from the
President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that
the hearing on the NorthRail project be postponed or cancelled until a copy of the
report of the UP Law Center on the contract agreements relative to the project had
been secured.

On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and
Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of
Legislation Under the Constitution, and For Other Purposes,"7 which, pursuant to
Section 6 thereof, took effect immediately. The salient provisions of the Order are as
follows:
SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance
with Article VI, Section 22 of the Constitution and to implement the Constitutional
provisions on the separation of powers between co-equal branches of the
government, all heads of departments of the Executive Branch of the government
shall secure the consent of the President prior to appearing before either House of
Congress.

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

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

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

Executive privilege covers all confidential or classified information between the

President and the public officers covered by this executive order, including:

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

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

Information between inter-government agencies prior to the conclusion of treaties

and executive agreements (Chavez v. Presidential Commission on Good Government,
G.R. No. 130716, 9 December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on

Good Government, G.R. No. 130716, 9 December 1998);

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

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

Senior officials of executive departments who in the judgment of the department

heads are covered by the executive privilege;

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

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

Such other officers as may be determined by the President.

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

Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter8 informing him "that officials
of the Executive Department invited to appear at the meeting [regarding the
NorthRail project] will not be able to attend the same without the consent of the
President, pursuant to [E.O. 464]" and that "said officials have not secured the
required consent from the President." On even date which was also the scheduled
date of the hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator
Biazon, Chairperson of the Committee on National Defense and Security, informing
him "that per instruction of [President Arroyo], thru the Secretary of National
Defense, no officer of the [AFP] is authorized to appear before any Senate or
Congressional hearings without seeking a written approval from the President" and
"that no approval has been granted by the President to any AFP officer to appear
before the public hearing of the Senate Committee on National Defense and Security
scheduled [on] 28 September 2005."

Despite the communications received from Executive Secretary Ermita and Gen.
Senga, the investigation scheduled by the Committee on National Defense and
Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among all the
AFP officials invited attending.

For defying President Arroyo’s order barring military personnel from testifying before
legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were
relieved from their military posts and were made to face court martial proceedings.

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

Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations
sent to the following government officials: Light Railway Transit Authority
Administrator Melquiades Robles, Metro Rail Transit Authority Administrator Roberto
Lastimoso, Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then
Presidential Legal Counsel Merceditas Gutierrez, Department of Transportation and
Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary Leandro
Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary
Board Member Juanita Amatong, Bases Conversion Development Authority
Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.10 NorthRail President
Cortes sent personal regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and
169667, for certiorari and prohibition, were filed before this Court challenging the
constitutionality of E.O. 464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives

Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and
Teodoro Casino, Courage, an organization of government employees, and Counsels
for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion
of justice, democracy and peace, all claiming to have standing to file the suit because
of the transcendental importance of the issues they posed, pray, in their petition that
E.O. 464 be declared null and void for being unconstitutional; that respondent
Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of
President Arroyo, be prohibited from imposing, and threatening to impose sanctions
on officials who appear before Congress due to congressional summons. Additionally,
petitioners claim that E.O. 464 infringes on their rights and impedes them from
fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464
infringes on its right as a political party entitled to participate in governance; Satur
Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as members of
Congress to conduct investigation in aid of legislation and conduct oversight
functions in the implementation of laws; Courage alleges that the tenure of its
members in public office is predicated on, and threatened by, their submission to the
requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges
that its members have a sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are threatened by the imposition of E.O.
464.

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

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

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital
interest in the resolution of the issue of the validity of E.O. 464 for it stands to suffer
imminent and material injury, as it has already sustained the same with its continued
enforcement since it directly interferes with and impedes the valid exercise of the
Senate’s powers and functions and conceals information of great public interest and
concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777
and prays that E.O. 464 be declared unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly
elected into the Philippine Senate and House of Representatives, filed a similar
petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that it is
affected by the challenged E.O. 464 because it hampers its legislative agenda to be
implemented through its members in Congress, particularly in the conduct of
inquiries in aid of legislation and transcendental issues need to be resolved to avert a
constitutional crisis between the executive and legislative branches of the
government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his

invitation to Gen. Senga for him and other military officers to attend the hearing on
the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied,
however, by letter15 dated February 8, 2006, that "[p]ursuant to Executive Order No.
464, th[e] Headquarters requested for a clearance from the President to allow [them]
to appear before the public hearing" and that "they will attend once [their] request is
approved by the President." As none of those invited appeared, the hearing on
February 10, 2006 was cancelled.16

In another investigation conducted jointly by the Senate Committee on Agriculture

and Food and the Blue Ribbon Committee on the alleged mismanagement and use of
the fertilizer fund under the Ginintuang Masaganang Ani program of the Department
of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled
on October 5 and 26, November 24 and December 12, 2005 but most of them failed
to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose
Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,17 and
those from the Department of Budget and Management18 having invoked E.O. 464.

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

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

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

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

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

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

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to
file memorandum27 was granted, subsequently filed a manifestation28 dated March
14, 2006 that it would no longer file its memorandum in the interest of having the
issues resolved soonest, prompting this Court to issue a Resolution reprimanding
them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their
consolidated memorandum38 on March 13, 2006 for the dismissal of the petitions for
lack of merit.

The Court synthesizes the issues to be resolved as follows:

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

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

3. Whether respondents have committed grave abuse of discretion when they

implemented E.O. 464 prior to its publication in a newspaper of general
circulation.

Essential requisites for judicial review

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

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

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

Standing

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

As for Bayan Muna’s alleged interest as a party-list representing the marginalized

and underrepresented, and that of the other petitioner groups and individuals who
profess to have standing as advocates and defenders of the Constitution,
respondents contend that such interest falls short of that required to confer standing
on them as parties "injured-in-fact."40

Respecting petitioner Chavez, respondents contend that Chavez may not claim an
interest as a taxpayer for the implementation of E.O. 464 does not involve the
exercise of taxing or spending power.41

With regard to the petition filed by the Senate, respondents argue that in the
absence of a personal or direct injury by reason of the issuance of E.O. 464, the
Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.

Invoking this Court’s ruling in National Economic Protectionism Association v.

Ongpin42 and Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert
that to be considered a proper party, one must have a personal and substantial
interest in the case, such that he has sustained or will sustain direct injury due to the
enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only for
intelligent public decision-making in a democratic system, but more especially for
sound legislation45 is not disputed. E.O. 464, however, allegedly stifles the ability of
the members of Congress to access information that is crucial to law-making.46 Verily,
the Senate, including its individual members, has a substantial and direct interest
over the outcome of the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate
the prerogative, powers and privileges vested by the Constitution in their office and
are allowed to sue to question the validity of any official action which they claim
infringes their prerogatives as legislators.47

In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro
Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael
Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the
constitutionality of E.O. 464, the absence of any claim that an investigation called by
the House of Representatives or any of its committees was aborted due to the
implementation of E.O. 464 notwithstanding, it being sufficient that a claim is made
that E.O. 464 infringes on their constitutional rights and duties as members of
Congress to conduct investigation in aid of legislation and conduct oversight
functions in the implementation of laws.

The national political party, Bayan Muna, likewise meets the standing requirement as
it obtained three seats in the House of Representatives in the 2004 elections and is,
therefore, entitled to participate in the legislative process consonant with the
declared policy underlying the party list system of affording citizens belonging to
marginalized and underrepresented sectors, organizations and parties who lack well-
defined political constituencies to contribute to the formulation and enactment of
legislation that will benefit the nation.48

As Bayan Muna and Representatives Ocampo et al. have the standing to file their
petitions, passing on the standing of their co-petitioners Courage and Codal is
rendered unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to be an

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

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

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in

view of the transcendental issues raised in its petition which this Court needs to
resolve in order to avert a constitutional crisis. For it to be accorded standing on the
ground of transcendental importance, however, it must establish (1) the character of
the funds (that it is public) or other assets involved in the case, (2) the presence of a
clear case of disregard of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government, and (3) the lack of any
party with a more direct and specific interest in raising the questions being raised.54
The first and last determinants not being present as no public funds or assets are
involved and petitioners in G.R. Nos. 169777 and 169659 have direct and specific
interests in the resolution of the controversy, petitioner PDP-Laban is bereft of
standing to file its petition. Its allegation that E.O. 464 hampers its legislative agenda
is vague and uncertain, and at best is only a "generalized interest" which it shares
with the rest of the political parties. Concrete injury, whether actual or threatened, is
that indispensable element of a dispute which serves in part to cast it in a form
traditionally capable of judicial resolution.55 In fine, PDP-Laban’s alleged interest as a
political party does not suffice to clothe it with legal standing.

Actual Case or Controversy

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

Respondents counter that there is no case or controversy, there being no showing

that President Arroyo has actually withheld her consent or prohibited the appearance
of the invited officials.56 These officials, they claim, merely communicated to the
Senate that they have not yet secured the consent of the President, not that the
President prohibited their attendance.57 Specifically with regard to the AFP officers
who did not attend the hearing on September 28, 2005, respondents claim that the
instruction not to attend without the President’s consent was based on its role as
Commander-in-Chief of the Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded

apprehension that the President will abuse its power of preventing the appearance of
officials before Congress, and that such apprehension is not sufficient for challenging
the validity of E.O. 464.

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

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

Constitutionality of E.O. 464

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

The power of inquiry

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

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

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

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

Arnault involved a Senate investigation of the reportedly anomalous purchase of the

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

Although there is no provision in the Constitution expressly investing either House of

Congress with power to make investigations and exact testimony to the end that it
may exercise its legislative functions advisedly and effectively, such power is so far
incidental to the legislative function as to be implied. In other words, the power of
inquiry – with process to enforce it – is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the legislation is intended to
affect or change; and where the legislative body does not itself possess the requisite
information – which is not infrequently true – recourse must be had to others who do
possess it. Experience has shown that mere requests for such information are often
unavailing, and also that information which is volunteered is not always accurate or
complete; so some means of compulsion is essential to obtain what is needed.59 . . .
(Emphasis and underscoring supplied)

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

Thus, the Court found that the Senate investigation of the government transaction
involved in Arnault was a proper exercise of the power of inquiry. Besides being
related to the expenditure of public funds of which Congress is the guardian, the
transaction, the Court held, "also involved government agencies created by Congress
and officers whose positions it is within the power of Congress to regulate or even
abolish."
Since Congress has authority to inquire into the operations of the executive branch, it
would be incongruous to hold that the power of inquiry does not extend to executive
officials who are the most familiar with and informed on executive operations.

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

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

As evidenced by the American experience during the so-called "McCarthy era,"

however, the right of Congress to conduct inquiries in aid of legislation is, in theory,
no less susceptible to abuse than executive or judicial power. It may thus be
subjected to judicial review pursuant to the Court’s certiorari powers under Section 1,
Article VIII of the Constitution.

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

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

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

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

Executive privilege

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

Schwartz defines executive privilege as "the power of the Government to withhold

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

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

encompassed claims of varying kinds.67 Tribe, in fact, comments that while it is
customary to employ the phrase "executive privilege," it may be more accurate to
speak of executive privileges "since presidential refusals to furnish information may
be actuated by any of at least three distinct kinds of considerations, and may be
asserted, with differing degrees of success, in the context of either judicial or
legislative investigations."

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

Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

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

The entry in Black’s Law Dictionary on "executive privilege" is similarly instructive

regarding the scope of the doctrine.

This privilege, based on the constitutional doctrine of separation of powers, exempts

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

That a type of information is recognized as privileged does not, however, necessarily

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

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

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

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

"The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations, for
example, has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so in a
way many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential communications.
The privilege is fundamental to the operation of government and inextricably rooted
in the separation of powers under the Constitution x x x " (Emphasis and
underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the
therein petitioners. It did not involve, as expressly stated in the decision, the right of
the people to information.78 Nonetheless, the Court recognized that there are certain
types of information which the government may withhold from the public, thus
acknowledging, in substance if not in name, that executive privilege may be claimed
against citizens’ demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law
holding that there is a "governmental privilege against public disclosure with respect
to state secrets regarding military, diplomatic and other national security matters."80
The same case held that closed-door Cabinet meetings are also a recognized
limitation on the right to information.

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

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

Validity of Section 1

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

Section 1 specifically applies to department heads. It does not, unlike Section 3,

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

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

Determining the validity of Section 1 thus requires an examination of the meaning of

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

MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the

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

I want to be clarified on a statement made by Commissioner Suarez when he said

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

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

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

So clearly was this distinction conveyed to the members of the Commission that the
Committee on Style, precisely in recognition of this distinction, later moved the
provision on question hour from its original position as Section 20 in the original draft
down to Section 31, far from the provision on inquiries in aid of legislation. This gave
rise to the following exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style]

We now go, Mr. Presiding Officer, to the Article on Legislative and may I request the
chairperson of the Legislative Department, Commissioner Davide, to give his
reaction.

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

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the
Question Hour. I propose that instead of putting it as Section 31, it should follow
Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?

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

MR. MAAMBONG. Actually, we considered that previously when we sequenced this

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

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

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

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

Consistent with their statements earlier in the deliberations, Commissioners Davide

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

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

In the context of a parliamentary system of government, the "question hour" has a

definite meaning. It is a period of confrontation initiated by Parliament to hold the
Prime Minister and the other ministers accountable for their acts and the operation of
the government,85 corresponding to what is known in Britain as the question period.
There was a specific provision for a question hour in the 1973 Constitution86 which
made the appearance of ministers mandatory. The same perfectly conformed to the
parliamentary system established by that Constitution, where the ministers are also
members of the legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the immediate

accountability of the Prime Minister and the Cabinet to the National Assembly. They
shall be responsible to the National Assembly for the program of government and
shall determine the guidelines of national policy. Unlike in the presidential system
where the tenure of office of all elected officials cannot be terminated before their
term expired, the Prime Minister and the Cabinet remain in office only as long as they
enjoy the confidence of the National Assembly. The moment this confidence is lost
the Prime Minister and the Cabinet may be changed.87

The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to conform
more fully to a system of separation of powers.88 To that extent, the question hour, as
it is presently understood in this jurisdiction, departs from the question period of the
parliamentary system. That department heads may not be required to appear in a
question hour does not, however, mean that the legislature is rendered powerless to
elicit information from them in all circumstances. In fact, in light of the absence of a
mandatory question period, the need to enforce Congress’ right to executive
information in the performance of its legislative function becomes more imperative.
As Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under
discussion, it is that the Congress has the right to obtain information from any source
– even from officials of departments and agencies in the executive branch. In the
United States there is, unlike the situation which prevails in a parliamentary system
such as that in Britain, a clear separation between the legislative and executive
branches. It is this very separation that makes the congressional right to obtain
information from the executive so essential, if the functions of the Congress as the
elected representatives of the people are adequately to be carried out. The absence
of close rapport between the legislative and executive branches in this country,
comparable to those which exist under a parliamentary system, and the
nonexistence in the Congress of an institution such as the British question period
have perforce made reliance by the Congress upon its right to obtain information
from the executive essential, if it is intelligently to perform its legislative tasks.
Unless the Congress possesses the right to obtain executive information, its power of
oversight of administration in a system such as ours becomes a power devoid of
most of its practical content, since it depends for its effectiveness solely upon
information parceled out ex gratia by the executive.89 (Emphasis and underscoring
supplied)

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

When Congress merely seeks to be informed on how department heads are

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

In fine, the oversight function of Congress may be facilitated by compulsory process

only to the extent that it is performed in pursuit of legislation. This is consistent with
the intent discerned from the deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive officials
under Section 21 and the lack of it under Section 22 find their basis in the principle of
separation of powers. While the executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of Congress to legislate by refusing to
comply with its demands for information.

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

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

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

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

Section 1, in view of its specific reference to Section 22 of Article VI of the

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

The requirement then to secure presidential consent under Section 1, limited as it is

only to appearances in the question hour, is valid on its face. For under Section 22,
Article VI of the Constitution, the appearance of department heads in the question
hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in

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

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to
secure the consent of the President prior to appearing before either house of
Congress. The enumeration is broad. It covers all senior officials of executive
departments, all officers of the AFP and the PNP, and all senior national security
officials who, in the judgment of the heads of offices designated in the same section
(i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National
Security Adviser), are "covered by the executive privilege."
The enumeration also includes such other officers as may be determined by the
President. Given the title of Section 2 — "Nature, Scope and Coverage of Executive
Privilege" —, it is evident that under the rule of ejusdem generis, the determination
by the President under this provision is intended to be based on a similar finding of
coverage under executive privilege.

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

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

Upon a determination by the designated head of office or by the President that an

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

Thus, underlying this requirement of prior consent is the determination by a head of

office, authorized by the President under E.O. 464, or by the President herself, that
such official is in possession of information that is covered by executive privilege.
This determination then becomes the basis for the official’s not showing up in the
legislative investigation.

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

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

In connection with the inquiry to be conducted by the Committee of the Whole

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

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

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

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

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

There is no claim by PEA that the information demanded by petitioner is privileged

information rooted in the separation of powers. The information does not cover
Presidential conversations, correspondences, or discussions during closed-door
Cabinet meetings which, like internal-deliberations of the Supreme Court and other
collegiate courts, or executive sessions of either house of Congress, are recognized
as confidential. This kind of information cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential, Legislative
and Judicial power. This is not the situation in the instant case.91 (Emphasis and
underscoring supplied)

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

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

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

A claim of privilege, being a claim of exemption from an obligation to disclose

information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:

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

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

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

[T]he lack of specificity renders an assessment of the potential harm resulting from
disclosure impossible, thereby preventing the Court from balancing such harm
against plaintiffs’ needs to determine whether to override any claims of privilege.96
(Underscoring supplied)

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

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

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

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

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

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

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

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

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

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

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

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

guidelines, binding only on the heads of office mentioned in Section 2(b), on what is
covered by executive privilege. It does not purport to be conclusive on the other
branches of government. It may thus be construed as a mere expression of opinion
by the President regarding the nature and scope of executive privilege.

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

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

Such presumptive authorization, however, is contrary to the exceptional nature of the

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

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

It follows, therefore, that when an official is being summoned by Congress on a

matter which, in his own judgment, might be covered by executive privilege, he must
be afforded reasonable time to inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is necessary in order to provide the
President or the Executive Secretary with fair opportunity to consider whether the
matter indeed calls for a claim of executive privilege. If, after the lapse of that
reasonable time, neither the President nor the Executive Secretary invokes the
privilege, Congress is no longer bound to respect the failure of the official to appear
before Congress and may then opt to avail of the necessary legal means to compel
his appearance.

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

In light of the above discussion of Section 3, it is clear that it is essentially an

authorization for implied claims of executive privilege, for which reason it must be
invalidated. That such authorization is partly motivated by the need to ensure
respect for such officials does not change the infirm nature of the authorization itself.

Right to Information

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

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

Thus, while Congress is composed of representatives elected by the people, it does

not follow, except in a highly qualified sense, that in every exercise of its power of
inquiry, the people are exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in

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

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

The impairment of the right of the people to information as a consequence of E.O.

464 is, therefore, in the sense explained above, just as direct as its violation of the
legislature’s power of inquiry.

Implementation of E.O. 464 prior to its publication

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

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

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

Conclusion

Congress undoubtedly has a right to information from the executive branch

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

The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right to do
so and/or proffering its reasons therefor. By the mere expedient of invoking said
provisions, the power of Congress to conduct inquiries in aid of legislation is
frustrated. That is impermissible. For
[w]hat republican theory did accomplish…was to reverse the old presumption in favor
of secrecy, based on the divine right of kings and nobles, and replace it with a
presumption in favor of publicity, based on the doctrine of popular sovereignty.
(Underscoring supplied)109

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

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

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

SO ORDERED.