Republic of the Philippines the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against
SUPREME COURT petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the
Manila
EN BANC
G.R. No. 82585 November 14, 1988
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO
L. MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila,
Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS
C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C.
AQUINO, respondents.
G.R. No. 82827 November 14, 1988
LUIS D. BELTRAN, petitioner,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial
Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE
PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE
MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF
MANILA, respondents.
G.R. No. 83979 November 14, 1988.
LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOÑEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF
MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R.
Nos. 82827 and 83979.
RESOLUTION
PER CURIAM:
In these consolidated cases, three principal issues were raised: (1) whether or not petitioners
were denied due process when informations for libel were filed against them although the finding
of the existence of a prima faciecase was still under review by the Secretary of Justice and,
subsequently, by the President; (2) whether or not the constitutional rights of Beltran were
violated when respondent RTC judge issued a warrant for his arrest without personally
examining the complainant and the witnesses, if any, to determine probable cause; and (3)
whether or not the President of the Philippines, under the Constitution, may initiate criminal
proceedings against the petitioners through the filing of a complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the
Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of
Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for
reconsideration was denied by the Executive Secretary on May 16, 1988. With these
developments, petitioners' contention that they have been denied the administrative remedies
available under the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of denial of due
process of law in the preliminary investigation is negated by the fact that instead of submitting
his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his
right to refute the complaint by filing counter-affidavits. Due process of law does not require that
the respondent in a criminal case actually file his counter-affidavits before the preliminary
investigation is deemed completed. All that is required is that the respondent be given the
opportunity to submit counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination nder oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized.
The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be
authorized by law," has apparently convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant and his witnesses in his determination
of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence
of probable cause for the issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine and procedure, he
shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or
(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion
as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down
guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated
and clarified in this resolution.
It has not been shown that respondent judge has deviated from the prescribed procedure. Thus,
with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion
amounting to lack or excess of jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential
immunity from suit impose a correlative disability to file suit." He contends that if criminal
proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may
subsequently have to be a witness for the prosecution, bringing her under the trial court's
jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity
from suit, as by testifying on the witness stand, she would be exposing herself to possible
contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free from any hindrance or distraction, considering
that being the Chief Executive of the Government is a job that, aside from requiring all of the
office holder's time, also demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the office and may
be invoked only by the holder of the office; not by any other person in the President's behalf.
Thus, an accused in a criminal case in which the President is complainant cannot raise the
presidential privilege as a defense to prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving the
privilege. Thus, if so minded the President may shed the protection afforded by the privilege and
submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is
solely the President's prerogative. It is a decision that cannot be assumed and imposed by any
other person.
As regards the contention of petitioner Beltran that he could not be held liable for libel because
of the privileged character or the publication, the Court reiterates that it is not a trier of facts and
that such a defense is best left to the trial court to appreciate after receiving the evidence of the
parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling
effect" on press freedom, the Court finds no basis at this stage to rule on the point.
The petitions fail to establish that public respondents, through their separate acts, gravely
abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and
prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction
on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos.
82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of
the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is
LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado, JJ., concur.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution
of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I
believe this is the more important issue in these petitions and it should be resolved now rather
that later.
Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should
not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial
justice where it is not alone the criminal liability of an accused in a seemingly minor libel case
which is involved but broader considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of the Republic
and one who enjoys unprecedented public support asks for the prosecution of a newspaper
columnist, the publisher and chairman of the editorial board, the managing editor and the
business manager in a not too indubitable a case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted
personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend
to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple
prosecution for libel. We have as complainant a powerful and popular President who heads the
investigation and prosecution service and appoints members of appellate courts but who feels
so terribly maligned that she has taken the unorthodox step of going to court inspite of the
invocations of freedom of the press which would inevitably follow.
I believe that this Court should have acted on this issue now instead of leaving the matter to
fiscals and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of
sensitive issues and public affairs, this Court and not a lower tribunal should draw the
demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a
clear conscience." The Court pointed out that while defamation is not authorized, criticism is to
be expected and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in authority of
such exalted position that the citizen must speak of him only with bated
breath. "In the eye of our Constitution and laws, every man is a sovereign, a
ruler and a freeman, and has equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to create
sensation. It would seem that what would ordinarily be slander if directed at the typical person
should be examined from various perspectives if directed at a high government official. Again,
the Supreme Court should draw this fine line instead of leaving it to lower tribunals.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977])
that a prosecution for libel lacks justification if the offending words find sanctuary within the
shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to
continue, where after discounting the possibility that the words may not be really that libelous,
there is likely to be a chilling effect, a patently inhibiting factor on the willingness of
newspapermen, especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his daily column,
the editors tell their people to lay off certain issues or certain officials, the effect on a free press
would be highly injurious.
Because many questions regarding press freedom are left unanswered by our resolution, I must
call attention to our decisions which caution that "no inroads on press freedom should be
allowed in the guise of punitive action visited on what otherwise should be characterized as
libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v.
Gutierrez, supra).
The United States Supreme Court is even more emphatic, to wit:
In deciding the question now, we are compelled by neither precedent nor
policy to give any more weight to the epithet "libel" than we have to other
"mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed
2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful
acts, breach of the peace, obscenity, solicitation of legal business, and the
other various other formulae for the repression of expression that have been
challenged in this Court, libel can claim no talismanic immunity from
constitutional limitations. It must be measured by standards that satisfy the
First Amendment.
xxx xxx xxx
Those who won our independence believed ... that public discussion is a
political duty; and that this should be a fundamental principle of the
American government. They recognized the risk to which all human
institutions are subject. But they knew that order cannot be secured merely
through fear of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the path
of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsel is good
ones. Believing in the power of reason as applied through public discussion,
they eschewed silence coerced by law—the argument of force in its worst
form. ...
Thus we consider this case against the background of a profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and
public officials. ... (at pp. 700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that
Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas
knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of
these petitions, should not a differentiated approach to their particular liabilities be taken instead
of lumping up everybody with the offending columnist? I realize that the law includes publishers
and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers
and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not
protected by the free speech clause but we have to understand that some provocative words,
which if taken literally may appear to shame or disparage a public figure, may really be intended
to provoke debate on public issues when uttered or written by a media personality. Will not a
criminal prosecution in the type of case now before us dampen the vigor and limit the variety of
public debate? There are many other questions arising from this unusual case which have not
been considered.
I, of course, concur with the Court's opinion because it has decided to limit the issues to
narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them.
The first issue on prematurity is moot. The second issue discusses a procedure now embodied
in the recently amended Rules of Court on how a Judge should proceed before he issues a
warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent
President should not be sued. At the same time, the President cannot stand by helplessly bereft
of legal remedies if somebody vilifies or maligns him or her.
The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception.
I know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But
why should we subject them to this problem? And why should we allow the possibility of the trial
court treating and deciding the case as one for ordinary libel without bothering to fully explore
the more important areas of concern, the extremely difficult issues involving government power
and freedom of expression.
However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself
to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:
If one can claim to announce the judgment of legal history on any subject, it
is that criminal libel laws are consistent with the concept of ordered liberty
only when applied with safeguards evolved to prevent their invasion of
freedom of expression.
In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution
of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I
believe this is the more important issue in these petitions and it should be resolved now rather
that later.
Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should
not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial
justice where it is not alone the criminal liability of an accused in a seemingly minor libel case
which is involved but broader considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of the Republic
and one who enjoys unprecedented public support asks for the prosecution of a newspaper
columnist, the publisher and chairman of the editorial board, the managing editor and the
business manager in a not too indubitable a case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted
personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend
to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple
prosecution for libel. We have as complainant a powerful and popular President who heads the
investigation and prosecution service and appoints members of appellate courts but who feels
so terribly maligned that she has taken the unorthodox step of going to court inspite of the
invocations of freedom of the press which would inevitably follow.
I believe that this Court should have acted on this issue now instead of leaving the matter to
fiscals and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of
sensitive issues and public affairs, this Court and not a lower tribunal should draw the
demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a
clear conscience." The Court pointed out that while defamation is not authorized, criticism is to
be expected and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in authority of
such exalted position that the citizen must speak of him only with bated
breath. "In the eye of our Constitution and laws, every man is a sovereign, a
ruler and a freeman, and has equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to create
sensation. It would seem that what would ordinarily be slander if directed at the typical person
should be examined from various perspectives if directed at a high government official. Again,
the Supreme Court should draw this fine line instead of leaving it to lower tribunals.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977])
that a prosecution for libel lacks justification if the offending words find sanctuary within the
shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to
continue, where after discounting the possibility that the words may not be really that libelous,
there is likely to be a chilling effect, a patently inhibiting factor on the willingness of
newspapermen, especially editors and publishers to courageously perform their critical role in
society. If, instead of merely reading more carefully what a columnist writes in his daily column,
the editors tell their people to lay off certain issues or certain officials, the effect on a free press
would be highly injurious.
Because many questions regarding press freedom are left unanswered by our resolution, I must
call attention to our decisions which caution that "no inroads on press freedom should be
allowed in the guise of punitive action visited on what otherwise should be characterized as
libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v.
Gutierrez, supra).<äre||anº•1àw>
The United States Supreme Court is even more emphatic, to wit:
In deciding the question now, we are compelled by neither precedent nor
policy to give any more weight to the epithet "libel" than we have to other
"mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed
2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful
acts, breach of the peace, obscenity, solicitation of legal business, and the
other various other formulae for the repression of expression that have been
challenged in this Court, libel can claim no talismanic immunity from
constitutional limitations. It must be measured by standards that satisfy the
First Amendment.
xxx xxx xxx
Those who won our independence believed ... that public discussion is a
political duty; and that this should be a fundamental principle of the
American government. They recognized the risk to which all human
institutions are subject. But they knew that order cannot be secured merely
through fear of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the path
of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsel is good
ones. Believing in the power of reason as applied through public discussion,
they eschewed silence coerced by law—the argument of force in its worst
form. ...
Thus we consider this case against the background of a profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and
public officials. ... (at pp. 700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that
Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas
knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of
these petitions, should not a differentiated approach to their particular liabilities be taken instead
of lumping up everybody with the offending columnist? I realize that the law includes publishers
and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers
and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not
protected by the free speech clause but we have to understand that some provocative words,
which if taken literally may appear to shame or disparage a public figure, may really be intended
to provoke debate on public issues when uttered or written by a media personality. Will not a
criminal prosecution in the type of case now before us dampen the vigor and limit the variety of
public debate? There are many other questions arising from this unusual case which have not
been considered.
I, of course, concur with the Court's opinion because it has decided to limit the issues to
narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them.
The first issue on prematurity is moot. The second issue discusses a procedure now embodied
in the recently amended Rules of Court on how a Judge should proceed before he issues a
warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent
President should not be sued. At the same time, the President cannot stand by helplessly bereft
of legal remedies if somebody vilifies or maligns him or her.
The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception.
I know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But
why should we subject them to this problem? And why should we allow the possibility of the trial
court treating and deciding the case as one for ordinary libel without bothering to fully explore
the more important areas of concern, the extremely difficult issues involving government power
and freedom of expression.
However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself
to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:
 If one can claim to announce the judgment of legal history on any subject, it
is that criminal libel laws are consistent with the concept of ordered liberty
only when applied with safeguards evolved to prevent their invasion of
freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.
 EN BANC
[G.R. Nos. 146710-15. March 2, 2001]
JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman,
RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION,
GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS
FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent.
[G.R. No. 146738. March 2, 2001]
JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent.
DECISION
PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito
Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo
claims she is the President. The warring personalities are important enough but more
transcendental are the constitutional issues embedded on the parties dispute. While the
significant issues are many, the jugular issue involves the relationship between the ruler and the
ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the crisis in the office of
the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President
while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some (10) million
Filipinos voted for the petitioner believing he would rescue them from lifes adversity. Both
petitioner and the respondent were to serve a six-year term commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a plethora of problems
that slowly but surely eroded his popularity. His sharp descent from power started on October 4,
2000. Ilocos Sur Governos, Luis Chavit Singson, a longtime friend of the petitioner, went on air
and accused the petitioner, his family and friends of receiving millions of pesos
from jueteng lords.[1]
The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator
Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and delivered a fiery
privilege speech entitled I Accuse. He accused the petitioner of receiving some P220 million
in jueteng money from Governor Singson from November 1998 to August 2000. He also charged
that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended
for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to
the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on
Justice (then headed by Senator Renato Cayetano) for joint investigation. [2]
The House of Representatives did no less. The House Committee on Public Order and
Security, then headed by Representative Roilo Golez, decided to investigate the expos of
Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and
Michael Defensor spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime
Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese
of Manila, asking petitioner to step down from the presidency as he had lost the moral authority
to govern.[3] Two days later or on October 13, the Catholic Bishops Conference of the Philippines
joined the cry for the resignation of the petitioner.[4] Four days later, or on October 17, former
President Corazon C. Aquino also demanded that the petitioner take the supreme self-sacrifice
of resignation.[5] Former President Fidel Ramos also joined the chorus. Early on, or on October
12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and
Services[6] and later asked for petitioners resignation.[7]However, petitioner strenuously held on
to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers, members of the
Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala,
former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington
Sycip.[8] On November 2, Secretary Mar Roxas II also resigned from the Department of Trade
and Industry.[9] On November 3, Senate President Franklin Drilon, and House Speaker Manuel
Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng
Masang Pilipino.[10]
The month of November ended with a big bang. In a tumultuous session on November 13,
House Speaker Villar transmitted the Articles of Impeachment[11] signed by 115 representatives,
or more than 1/3 of all the members of the House of Representatives to the Senate. This caused
political convulsions in both houses of Congress. Senator Drilon was replaced by Senator
Pimentel as Senate President.Speaker Villar was unseated by Representative
Fuentabella.[12] On November 20, the Senate formally opened the impeachment trial of the
petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice
Hilario G. Davide, Jr., presiding.[13]
The political temperature rose despite the cold December. On December 7, the
impeachment trial started.[14] the battle royale was fought by some of the marquee names in the
legal profession. Standing as prosecutors were then House Minority Floor Leader Feliciano
Belmonte and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales,
Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio
Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice
Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were
former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito
P. Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy Speaker of the House
Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial
was covered by live TV and during its course enjoyed the highest viewing rating.Its high and low
points were the constant conversational piece of the chattering classes. The dramatic point of
the December hearings was the testimony of Clarissa Ocampo, senior vice president of
Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he
affixed the signature Jose Velarde on documents involving a P500 million investment agreement
with their bank on February 4, 2000.[15]
After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of
Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the
prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioners Secretary of
Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources
Corporation with Mr. Dante Tan who was facing charges of insider trading. [16] Then came the
fateful day of January 16, when by a vote of 11-10[17] the senator-judges ruled against the
opening of the second envelop which allegedly contained evidence showing that petitioner
held P3.3 billion in a secret bank account under the name Jose Velarde. The public and private
prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate
President.[18] The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit
the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and
speeches full of sulphur were delivered against the petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering
their collective resignation. They also filed their Manifestation of Withdrawal of Appearance with
the impeachment tribunal.[19] Senator Raul Roco quickly moved for the indefinite postponement
of the impeachment proceedings until the House of Representatives shall have resolved the
issue of resignation of the public prosecutors. Chief Justice Davide granted the motion.[20]
 January 18 saw the high velocity intensification of the call for petitioners resignation. A 10-
kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the peoples
solidarity in demanding petitioners resignation. Students and teachers walked out of their
classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the
EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.[21]
On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of
Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the
holding of a snap election for President where he would not be a candidate. It did not diffuse the
growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General
Reyes, together with the chiefs of all the armed services went to the EDSA Shrine. [22] In the
presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that on behalf of your Armed Forces, the 130,000
strong members of the Armed Forces, we wish to announce that we are withdrawing our support
to this government.[23] A little later, PNP Chief, Director General Panfilo Lacson and the major
service commanders gave a similar stunning announcement.[24] Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their
posts.[25] Rallies for the resignation of the petitioner exploded in various parts of the country. To
stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening
of the highly controversial second envelop.[26] There was no turning back the tide. The tide had
become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations
for the peaceful and orderly transfer of power started at Malacaangs Mabini Hall, Office of the
Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel
Fernandez, head of the presidential Management Staff, negotiated for the
petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa,
now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando
Perez.[27] Outside the palace, there was a brief encounter at Mendiola between pro and anti-
Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations
consumed all morning until the news broke out that Chief Justice Davide would administer the
oath to respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as
President of the Philippines.[28] At 2:30 p.m., petitioner and his family hurriedly left Malacaang
Palace.[29] He issued the following press statement:[30]
20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President
of the Republic of the Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her proclamation as
President, I do not wish to be a factor that will prevent the restoration of unity and order in our
civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the Palace
of our people with gratitude for the opportunities given to me for service to our people. I will not
shirk from any future challenges that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA
It also appears that on the same day, January 20, 2001, he signed the following letter: [31]
Sir:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the powers and duties of my office. By operation of
law and the Constitution, the Vice-President shall be the Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on January
20.[32] Another copy was transmitted to Senate President Pimentel on the same day although it
was received only at 9:00 p.m.[33]
On January 22, the Monday after taking her oath, respondent Arroyo immediately
discharged the powers and duties of the Presidency. On the same day, this Court issued the
following Resolution in Administrative Matter No. 01-1-05-SC, to wit:
A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take her
Oath of Office as President of the Republic of the Philippines before the Chief Justice Acting on
the urgent request of Vice-President Gloria Macapagal-Arroyo to be sworn in as President of the
Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the
Court, dated January 20, 2001, which request was treated as an administrative matter, the court
Resolved unanimously to confirm the authority given by the twelve (12) members of the Court
then present to the Chief Justice on January 20, 2001 to administer the oath of office to Vice
President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that maybe filed by a
proper party.
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and
special envoys.[34] Recognition of respondent Arroyos government by foreign governments
swiftly followed. On January 23, in a reception or vin d honneur at Malacaang, led by the Dean
of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats
recognized the government of respondent Arroyo.[35] US President George W. Bush gave the
respondent a telephone call from the White House conveying US recognition of her
government.[36]
On January 24, Representative Feliciano Belmonte was elected new Speaker of the
House of Representatives.[37] The House then passed Resolution No. 175 expressing the full
support of the House of Representatives to the administration of Her Excellency Gloria
Macapagal-Arroyo, President of the Philippines.[38] It also approved Resolution No. 176
expressing the support of the House of Representatives to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its
congratulations and expressing its support for her administration as a partner in the attainment
of the nations goals under the Constitution.[39]
 On January 26, the respondent signed into law the Solid Waste Management Act.[40] A few
days later, she also signed into law the Political Advertising Ban and Fair Election Practices
Act.[41]
On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.[42] the next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.[43] Senators Miriam Defensor-Santiago, Juan Ponce Enrile,
and John Osmea voted yes with reservations, citing as reason therefore the pending challenge
on the legitimacy of respondent Arroyos presidency before the Supreme Court. Senators Teresa
Aquino-Oreta and Robert Barbers were absent.[44] The House of Representatives also approved
Senator Guingonas nomination in Resolution No. 178.[45] Senator Guingona took his oath as
Vice President two (2) days later.[46]
On February 7, the Senate passed Resolution No. 83 declaring that the impeachment
court is functus officio and has been terminated.[47] Senator Miriam Defensor-Santiago stated for
the record that she voted against the closure of the impeachment court on the grounds that the
Senate had failed to decide on the impeachment case and that the resolution left open the
question of whether Estrada was still qualified to run for another elective post.[48]
Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public acceptance
rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.[49] In another
survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of
the Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The
survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in
the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased
to 52%. Her presidency is accepted by majorities in all social classes:
58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54% among the
Es or very poor class.[50]
After his fall from the pedestal of power, the petitioners legal problems appeared in
clusters. Several cases previously filed against him in the Office of the Ombudsman were set in
motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23,
2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers
Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption,
bribery, perjury, serious misconduct, violation of the Code of Conduct for government
Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation,
Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28,
2000 for malversation of public funds, illegal use of public funds and property, plunder, etc., (5)
OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery,
plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB
Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft
and corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman to
investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22,
the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of
his witnesses as well as other supporting documents in answer to the aforementioned
complaints against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court
GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from conducting any further proceedings in Case
Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that
may be filed in his office, until after the term of petitioner as President is over and only if legally
warranted. Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo
Warranto. He prayed for judgment confirming petitioner to be the lawful and incumbent President
of the Republic of the Philippines temporarily unable to discharge the duties of his office, and
declaring respondent to have taken her oath as and to be holding the Office of the President,
only in an acting capacity pursuant to the provisions of the Constitution. Acting on GR Nos.
146710-15, the Court, on the same day, February 6, required the respondents to comment
thereon within a non-extendible period expiring on 12 February 2001. On February 13, the Court
ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the
respondents comments on or before 8:00 a.m. of February 15.
On February 15, the consolidated cases were orally argued in a four-hour hearing. Before
the hearing, Chief Justice Davide, Jr.,[51] and Associate Justice Artemio Panganiban[52] recused
themselves on motion of petitioners counsel, former Senator Rene A. Saguisag. They debunked
the charge of counsel Saguisag that they have compromised themselves by indicating that they
have thrown their weight on one side but nonetheless inhibited themselves. Thereafter, the
parties were given the short period of five (5) days to file their memoranda and two (2) days to
submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution and
press statement for Gag Order on respondent Ombudsman filed by counsel for petitioner in G.R.
No. 146738, the Court resolved:
(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring
the office of the President vacant and that neither did the Chief Justice issue a press statement
justifying the alleged resolution;
(2) to order the parties and especially their counsel who are officers of the Court under pain of
being cited for contempt to refrain from making any comment or discussing in public the merits
of the cases at bar while they are still pending decision by the Court, and
(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against petitioner
Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will
make the cases at bar moot and academic.[53]
The parties filed their replies on February 24. On this date, the cases at bar were deemed
submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.
 IV
Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.
We shall discuss the issues in seriatim.
I Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases will
Whether or not the cases at bar involve a political question
Private respondents[54] raise the threshold issue that the cases at bar pose a political
question, and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn
of its embroideries, the cases at bar assail the legitimacy of the Arroyo administration. They
stress that respondent Arroyo ascended the presidency through people power; that she has
already taken her oath as the 14th President of the Republic; that she has exercised the powers
of the presidency and that she has been recognized by foreign governments. They submit that
these realities on ground constitute the political thicket which the Court cannot enter.
We reject private respondents submission. To be sure, courts here and abroad, have tried
to lift the shroud on political question but its exact latitude still splits the best of legal
minds. Developed by the courts in the 20th century, the political question doctrine which rests on
the principle of separation of powers and on prudential considerations, continue to be refined in
the mills constitutional law.[55] In the United States, the most authoritative guidelines to determine
whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case
of Baker v. Carr,[56] viz:
x x x Prominent on the surface on any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or the
impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial
discretions; or the impossibility of a courts undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question. Unless
one of these formulations is inextricable from the case at bar, there should be no dismissal for
non justiciability on the ground of a political questions presence. The doctrine of which we treat
is one of political questions, not of political cases.
In the Philippine setting, this Court has been continuously confronted with cases calling for
a firmer delineation of the inner and outer perimeters of a political question. [57] Our leading case
is Tanada v. Cuenco,[58] where this Court, through former Chief Justice Roberto Concepcion,
held that political questions refer to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, notlegality of a particular measure. To a
great degree, the 1987 Constitution has narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this court not only to settle actual controversies
involving rights which are legally demandable and enforceable but also to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of government.[59] Heretofore, the judiciary has focused
on the thou shalt nots of the Constitution directed against the exercise of its jurisdiction. [60]With
the new provision, however, courts are given a greater prerogative to determine what it can do to
prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new provision did not just grant the
Court power of doing nothing. In sync and symmetry with this intent are other provisions of
the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is
section 18 of Article VII which empowers this Court in limpid language to x x x review, in an
appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or
the extension thereof x x x.
Respondents rely on the case of Lawyers League for a Better Philippines and/or
Oliver A. Lozano v. President Corazon C. Aquino, et al.[61] and related cases[62] to support
their thesis that since the cases at bar involve the legitimacy of the government of respondent
show that they are inapplicable. In the cited cases, we held that the government of former
President Aquino was the result of a successful revolution by the sovereign people, albeit a
peaceful one. No less than the Freedom Constitution[63] declared that the Aquino government
was installed through a direct exercise of the power of the Filipino people in defiance of the
provisions of the 1973 Constitution, as amended. It is familiar learning that the legitimacy of
a government sired by a successful revolution by people power is beyond judicial scrutiny for
that government automatically orbits out of the constitutional loop. In checkered contrast, the
government of respondent Arroyo is not revolutionary in character. The oath that she took
at the EDSA Shrine is the oath under the 1987 Constitution.[64] In her oath, she categorically
swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is
discharging the powers of the presidency under the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I and EDSA People Power II is
clear. EDSA I involves the exercise of the people power of revolution which overthrew the
whole government. EDSA II is an exercise of people power of freedom of speech and
freedom of assembly to petition the government for redress of grievances which only
affected the office of the President. EDSA I is extra constitutional and the legitimacy of the
new government that resulted from it cannot be the subject of judicial review, but EDSA II is
intra constitutional and the resignation of the sitting President that it caused and the
succession of the Vice President as President are subject to judicial review. EDSA I presented
political question; EDSA II involves legal questions. A brief discourse on freedom of speech
and of the freedom of assembly to petition the government for redress of grievance which are
the cutting edge of EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these
rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P.
Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and
included it as among the reforms sine quibus non.[65] The Malolos Constitution, which is the
work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not
be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through the
use of the press or other similar means; (2) of the right of association for purposes of human life
and which are not contrary to public means; and (3) of the right to send petitions to the
authorities, individually or collectively. These fundamental rights were preserved when the
United States acquired jurisdiction over the Philippines. In the instruction to the Second
Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided
that no law shall be passed abridging the freedom of speech or of the press or of the rights of
the people to peaceably assemble and petition the Government for redress of grievances. The
guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the
Jones Law, the Act of Congress of August 29, 1966.[66]
Thence on, the guaranty was set in stone in our 1935 Constitution,[67] and
the 1973[68] Constitution. These rights are now safely ensconced in section 4, Article III of the
1987 Constitution, viz:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the government for redress of
grievances.
The indispensability of the peoples freedom of speech and of assembly to democracy is
now self-evident. The reasons are well put by Emerson: first, freedom of expression is essential
as a means of assuring individual fulfillment; second, it is an essential process for advancing
knowledge and discovering truth; third, it is essential to provide for participation in decision-
making by all members of society; and fourth, it is a method of achieving a more adaptable and
hence, a more stable community of maintaining the precarious balance between healthy
cleavage and necessary consensus.[69] In this sense, freedom of speech and of assembly
provides a framework in which the conflict necessary to the progress of a society can
take place without destroying the society.[70] In Hague v. Committee for Industrial
Organization,[71] this function of free speech and assembly was echoed in the amicus
curiae brief filed by the Bill of Rights Committee of the American Bar Association which
emphasized that the basis of the right of assembly is the substitution of the expression of opinion
and belief by talk rather than force; and this means talk for all and by all.[72] In the
relatively recent case of Subayco v. Sandiganbayan,[73] this Court similarly stressed that "... it
should be clear even to those with intellectual deficits that when the sovereign people assemble
to petition for redress of grievances, all should listen. For in a democracy, it is the people who
count; those who are deaf to their grievances are ciphers.
Needless to state, the cases at bar pose legal and not political questions. The principal
issues for resolution require the proper interpretation of certain provisions in the 1987
Constitution, notably section 1 of Article II,[74] and section 8[75]of Article VII, and the allocation of
governmental powers under section 11[76] of Article VII. The issues likewise call for a ruling on
the scope of presidential immunity from suit. They also involve the correct calibration of the right
of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v.
Madison,[77] the doctrine has been laid down that it is emphatically the province and duty of
the judicial department to say what the law is . . . Thus, respondents invocation of the
doctrine of political is but a foray in the dark.
II
Whether or not the petitioner resigned as President
We now slide to the second issue. None of the parties considered this issue as posing a
political question. Indeed, it involves a legal question whose factual ingredient is determinable
from the records of the case and by resort to judicial notice. Petitioner denies he resigned as
President or that he suffers from a permanent disability. Hence, he submits that the office of the
President was not vacant when respondent Arroyo took her oath as president.
The issue brings under the microscope of the meaning of section 8, Article VII of the
Constitution which provides:
Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In case of
death, permanent disability, removal from office, or resignation of both the President and Vice
President, the President of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then acts as President until President or Vice President shall have been
elected and qualified.
x x x.
The issue then is whether the petitioner resigned as President or should be considered
resigned as of January 20, 2001 when respondent took her oath as the 14th President of the
Republic. Resignation is not a high level legal abstraction. It is a factual question and
its elements are beyond quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment.[78] The validity of a resignation is not governed by any
formal requirement as to form. It can be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts shows that petitioner did not write any formal letter of
resignation before he evacuated Malacaang Palace in the Afternoon of January 20, 2001 after
the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be
determined from his acts and omissions before, during and after January 20, 2001 or by
the totality of prior, contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the petitioner, it is important
to follow the succession of events after the expos of Governor Singson. The Senate Blue Ribbon
Committee investigated. The more detailed revelations of petitioners alleged misgovernance in
the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in
the House of Representatives which initially was given a near cipher chance of succeeding
snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3
of the House of Representatives.Soon, petitioners powerful political allies began deserting
him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and
Former Speaker Villar defected with 47 representatives in tow. Then, his respected senior
economic advisers resigned together with his Secretary of Trade and Industry.
As the political isolation of the petitioner worsened, the peoples call for his resignation
intensified. The call reached a new crescendo when the eleven (11) members of the
impeachment tribunal refused to open the second envelope. It sent the people to paroxysms of
outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with people
crying for redress of their grievance. Their number grew exponentially. Rallies and
demonstration quickly spread to the countryside like a brush fire.
As events approached January 20, we can have an authoritative window on the state of
mind of the petitioner. The window is provided in the Final Days of Joseph Ejercito Estrada, the
diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.[79] The Angara
Diary reveals that in morning of January 19, petitioners loyal advisers were worried about the
swelling of the crowd at EDSA, hence, they decided to crate an ad hoc committee to handle
it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small
office at the presidential residence and exclaimed: Ed, seryoso na ito. Kumalas na si Angelo
(Reyes) (Ed, this is serious. Angelo has defected.)[80] An hour later or at 2:30, p.m., the petitioner
decided to call for a snap presidential election and stressed he would not be a candidate. The
proposal for a snap election for president in May where he would not be a candidate is an
indicium that petitioner had intended to give up the presidency even at that time.At 3:00
p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the
petitioner and dramatically announced the AFPs withdrawal of support from the petitioner and
their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as
a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to
consider the option of dignified exit or resignation.[81] Petitioner did nor disagree but
listened intently.[82] The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel
repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the
proposal a sweetener by saying that petitioner would allowed to go abroad with enough funds to
support him and his family.[83] Significantly, the petitioner expressed no objection to the
suggestion for a graceful and dignified exit but said he would never leave the
country.[84] At 10:00 p.m., petitioner revealed to Secretary Angara, Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the palace.[85] This is proof that petitioner
had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of
time.
The pressure continued piling up. By 11:00 p.m., former President Ramos called up
Secretary Angara and requested, Ed, magtulungan tayo para magkaroon tayo ng (lets cooperate
to ensure a) peaceful and orderly transfer of power.[86] There was no defiance to the
request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was
already about a peaceful and orderly transfer of power. The resignation of the petitioner
was implied.
The first negotiation for a peaceful and orderly transfer of power immediately started at
12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3)
points: (1) the transition period of five days after the petitioners resignation; (2) the guarantee of
the safety of the petitioner and his family, and (3) the agreement to open the second envelope to
vindicate the name of the petitioner.[87]Again, we note that the resignation of petitioner was
not a disputed point. The petitioner cannot feign ignorance of this fact. According to
Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following
entry in the Angara Diary shows the reaction of the petitioner, viz:
xxx
I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.
If the envelope is opened, on Monday, he says, he will leave by Monday.
The President says. Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. (I am very tired. I dont want any more of this its too
painful. Im tired of the red tape, the bureaucracy, the intrigue.)
I just want to clear my name, then I will go.[88]
Again, this is high grade evidence that the petitioner has resigned. The intent to resign is
clear when he said x x x Ayoko na masyado nang masakit. Ayoko na are words of
resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary,
the following happened:
Oppositions deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagals spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled Negotiating Points. It reads:
1. The President shall sign a resignation document within the day, 20 January 2001, that will be
effective on Wednesday, 24 January 2001, on which day the Vice President will assume the
Presidency of the Republic of the Philippines.
2. Beginning today, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice president to various
positions and offices of the government shall start their orientation activities in coordination with
the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall function under
the Vice President as national military and police effective immediately.
4. The Armed Forces of the Philippines, through its Chief of Staff, shall guarantee the security of
the president and his family as approved by the national military and police authority (Vice
President).
5. It is to be noted that the Senate will open the second envelope in connection with the alleged
savings account of the President in the Equitable PCI Bank in accordance with the rules of the
Senate, pursuant to the request to the Senate President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective principals, agree and undertake as
follows:
1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.
2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guaranteed freedom from persecution or retaliation from government and the private
sector throughout their natural lifetimes.
This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the
Chief of Staff, as approved by the national military and police authorities Vice President
(Macapagal).
3. Both parties shall endeavor to ensure that the Senate siting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the subject
savings account does not belong to President Estrada.
4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
Transition Period), the incoming Cabinet members shall receive an appropriate briefing from the
outgoing Cabinet officials as part of the orientation program.
During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
under Vice President (Macapagal) as national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the
necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in Annex A heretofore attached to this agreement.[89]
The second round of negotiation cements the reading that the petitioner has
resigned. It will be noted that during this second round of negotiation, the resignation of
the petitioner was again treated as a given fact. The only unsettled points at that time
were the measures to be undertaken by the parties during and after the transition period.
According to Secretary Angara, the draft agreement which was premised on the
resignation of the petitioner was further refined. It was then signed by their side and he was
ready to fax it to General Reyes and Senator Pimentel to await the signature of the United
Opposition. However, the signing by the party of the respondent Arroyo was aborted by
her oath-taking. The Angara Diary narrates the fateful events, viz:[90]
xxx
 11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.
Agreement
The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation
shall be effective on 24 January 2001, on which day the Vice President will assume the
presidency of the Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.
3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and
security of the President and his families throughout their natural lifetimes as approved by the
national military and police authority Vice President.
4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as
national military and police authorities.
5. Both parties request the impeachment court to open the second envelope in the impeachment
trial, the contents of which shall be offered as proof that the subject savings account does not
belong to the President.
The Vice President shall issue a public statement in the form and tenor provided for in Annex B
heretofore attached to this agreement.
xxx
11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our
side and awaiting the signature of the United Opposition.
And then it happens. General Reyes calls me to say that the Supreme Court has decided that
Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.
Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldnt you wait? What
about the agreement)? I asked.
Reyes answered: Wala na, sir (Its over, sir).
I asked him: Di yung transition period, moot and academic na?
And General Reyes answer: Oo nga, i-delete na natin, sir (Yes, were deleting that part).
Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel to Nene Pimentel and
General Reyes.
I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the
other side, as it is important that the provision on security, at least, should be respected.
I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.
The president is too stunned for words.
Final meal
12 noon Gloria takes her oath as President of the Republic of the Philippines.
12:20 p.m. The PSG distributes firearms to some people inside the compound.
The President is having his final meal at the Presidential Residence with the few friends and
Cabinet members who have gathered.
By this time, demonstrators have already broken down the first line of defense at Mendiola. Only
the PSG is there to protect the Palace, since the police and military have already withdrawn their
support for the President.
1 p.m. The Presidents personal staff is rushing to pack as many of the Estrada familys personal
possessions as they can.
During lunch, Ronie Puno mentions that the President needs to release a final statement
before leaving Malacaang.
The statement reads: At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other legal
minds of our country, I have strong and serious doubts about the legality and constitutionality of
her proclamation as president, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the Palace
of our people with gratitude for the opportunities given to me for service to our people. I will not
shrik from any future challenges that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed
by his leaving Malacaang. In the press release containing his final statement, (1)
he acknowledged the oath-taking of the respondent as President of the Republic albeit with
the reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the
presidency, for the sake of peace and in order to begin the healing process of our nation. He did
not say he was leaving the Palace due to any kind of inability and that he was going to re-
assume the presidency as soon as the disability disappears; (3) he expressed his gratitude
to the people for the opportunity to serve them. Without doubt, he was referring to the past
opportunity given him to serve the people as President; (4) he assured that he will not shirk
from any future challenge that may come ahead in the same service of our country. Petitioners
reference is to a future challenge after occupying the office of the president which he has
given up; and (5) he called on his supporters to join him in the promotion of a constructive
national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation
and solidarity could not be attained if he did not give up the presidency. The press release
was petitioners valedictory, his final act of farewell. His presidency is now in the past tense.
It is, however, urged that the petitioner did not resign but only took a temporary
leave of absence due to his inability to govern. In support of this thesis, the letter dated
January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is
cited. Again, we refer to the said letter, viz:
Sir
By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the powers and duties of my office. By operation of
law and the Constitution, the Vice President shall be the Acting President.
(Sgd.) Joseph Ejercito Estrada
To say the least, the above letter is wrapped in mystery.[91] The pleadings filed by the
petitioner in the cases at bar did not discuss, nay even intimate, the circumstances that led to its
preparation.Neither did the counsel of the petitioner reveal to the Court these circumstances
during the oral argument. It strikes the Court as strange that the letter, despite its legal
value, was never referred to by the petitioner during the week-long crisis. To be sure, there
was not the slightest hint of its existence when he issued his final press release. It was all too
easy for him to tell the Filipino people in his press release that he was temporarily unable to
govern and that he was leaving the reins of government to respondent Arroyo for the time
being. Under any circumstance, however, the mysterious letter cannot negate the
resignation of the petitioner. If it was prepared before the press release of the petitioner
clearly showing his resignation from the presidency, then the resignation must prevail as a later
act. If, however, it was prepared after the press release, still, it commands scant legal
significance. Petitioners resignation from the presidency cannot be the subject of a
changing caprice nor of a whimsical will especially if the resignation is the result of his
repudiation by the people. There is another reason why this Court cannot give any legal
significance to petitioners letter and this shall be discussed in issue number III of this Decision.
After petitioner contended that as a matter of fact he did not resign, he also argues
that he could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz:
Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminal or
administrative, or pending a prosecution against him, for any offense under this Act or under the
provisions of the Revised Penal Code on bribery.
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the
petitioner. RA No. 3019 originated from Senate Bill No. 293. The original draft of the bill, when it
was submitted to the Senate, did not contain a provision similar to section 12 of the law as it now
stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill,
reserved to propose during the period of amendments the inclusion of a provision to the effect
that no public official who is under prosecution for any act of graft or corruption, or is under
administrative investigation, shall be allowed to voluntarily resign or retire. [92] During the period of
amendments, the following provision was inserted as section 15:
Sec. 15. Termination of office No public official shall be allowed to resign or retire pending an
investigation, criminal or administrative, or pending a prosecution against him, for any offense
under the Act or under the provisions of the Revised Penal Code on bribery.
The separation or cessation of a public official from office shall not be a bar to his prosecution
under this Act for an offense committed during his incumbency. [93]
The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the
second paragraph of the provision and insisted that the Presidents immunity should extend even
after his tenure.
Senate Bill No. 571, which was substantially similar to Senate Bill No. 293, was thereafter
passed. Section 15 above became section 13 under the new bill, but the deliberations on this
particular provision mainly focused on the immunity of the President which was one of the
reasons for the veto of the original bill. There was hardly any debate on the prohibition against
the resignation or retirement of a public official with pending criminal and administrative cases
against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the
act of resignation or retirement from being used by a public official as a protective shield
to stop the investigation of a pending criminal or administrative case against him and to
prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the
Revised Penal Code. To be sure, no person can be compelled to render service for that would
be a violation of his constitutional right.[94] A public official has the right not to serve if he really
wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is
facing administrative or criminal investigation or prosecution, such resignation or retirement will
not cause the dismissal of the criminal or administrative proceedings against him. He cannot use
his resignation or retirement to avoid prosecution.
There is another reason why petitioners contention should be rejected. In the cases at bar,
the records show that when petitioner resigned on January 20, 2001, the cases filed against him
before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and
0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from
conducting the preliminary investigation of the petitioner for the reason that as the sitting
President then, petitioner was immune from suit. Technically, the said cases cannot be
considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA
No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose
investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity
from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation
that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature
of an impeachment proceeding is debatable. But even assuming arguendo that it is an
administrative proceeding, it can not be considered pending at the time petitioner resigned
because the process already broke down when a majority of the senator-judges voted against
the opening of the second envelope, the public and private prosecutors walked out, the public
prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were
postponed indefinitely. There was, in effect, no impeachment case pending against petitioner
when he resigned.
III
Whether or not the petitioner is only temporarily unable to act as President.
We shall now tackle the contention of the petitioner that he is merely temporarily unable to
perform the powers and duties of the presidency, and hence is a President on leave. As
aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the
same day to Senate President Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge
the inability of the petitioner to discharge the powers and duties of the presidency. His significant
submittal is that Congress has the ultimate authority under the Constitution to determine
whether the President is incapable of performing his functions in the manner provided for in
section 11 of Article VII.[95] This contention is the centerpiece of petitioners stance that he is
a President on leave and respondent Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:
SEC. 11. Whenever the President transmit to the President of the Senate and the Speaker of the
House of Representatives his written declaration that he is unable to discharge the powers and
duties of his office, and until he transmits to them a written declaration to the contrary, such
powers and duties shall be discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate
and to the Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Vice-President shall immediately
assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the Speaker of
the House of Representatives his written declaration that no inability exists, he shall reassume
the powers and duties of his office. Meanwhile, should a majority of all the Members of the
Cabinet transmit within five days to the President of the Senate and to the Speaker of the House
of Representatives their written declaration that the President is unable to discharge the powers
and duties of his office, the Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and
without need of call.
If the Congress, within ten days after receipt of the last written declaration, or, if not in session
within twelve days after it is required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to discharge the powers and duties of his
office, the Vice-President shall act as President; otherwise, the President shall continue
exercising the powers and duties of his office."
That is the law. Now the operative facts:
(1) Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
(2) Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
(3) Despite receipt of the letter, the House of Representative passed on January 24,
2001 House Resolution No. 175;[96]
On the same date, the House of the Representatives passed House Resolution No.
[97]
176 which states:
RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS
AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A
PARTNER IN THE ATTAINMENT OF THE NATIONS GOALS UNDER THE
CONSTITUTION
WHEREAS, as a consequence of the peoples loss of confidence on the ability of former
President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the
Philippine National Police and majority of his cabinet had withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before
Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international community had extended their
recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the
Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of
national healing and reconciliation with justice for the purpose of national unity and development;
WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is
divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the people,
the House of Representatives must ensure to the people a stable, continuing government and
therefore must remove all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify
the nation, to eliminate fractious tension, to heal social and political wounds, and to be an
instrument of national reconciliation and solidarity as it is a direct representative of the various
segments of the whole nation;
WHEREAS, without surrendering its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive
partner in nation-building, the national interest demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to the assumption into office
by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to
extend its congratulations and to express its support for her administration as a partner in the
attainment of the Nations goals under the Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General
On February 7, 2001, the House of the Representatives passed House Resolution No.
178[98] which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS
NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and the
House of Representatives who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the
Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility and
patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true
statesmanship, having served the government in various capacities, among others, as Delegate
to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the Philippines - qualities which merit his nomination to the
position of Vice President of the Republic: Now, therefore, be it
Resolved as it is hereby resolved by the House of Representatives, That the House of
Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.
Adopted,
(Sgd) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General
(4) Also, despite receipt of petitioners letter claiming inability, some twelve (12)
members of the Senate signed the following:
RESOLUTION
WHEREAS, the recent transition in government offers the nation an opportunity for meaningful
change and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolute cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge our duties to attain desired changes and overcome
the nations challenges.[99]
On February 7, the Senate also passed Senate Resolution No. 82[100] which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS
NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is it vacancy in the Office of the Vice-President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and the
House of Representatives who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the
Phillippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence, and courage; who has served the Filipino people with dedicated responsibility and
patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice. Senator of the land - which qualities merit his nomination to the position of
Vice President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T.
Guingona, Jr. as Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate
On the same date, February 7, the Senate likewise passed Senate Resolution No. 83[101] which
states:
RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officio and has been terminated.
Resolved, further, That the Journals of the Impeachment Court of Monday, January
15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court including the second envelope be
transferred to the Archives of the Senate for proper safekeeping and preservation in accordance
with the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written
approval of the Senate President.
Resolved, finally. That all parties concerned be furnished copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate
(5) On February 8, the Senate also passed Resolution No. 84 certifying to the existence
of a vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election
to be held simultaneously with the regular election on May 14, 2001 and the senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.
(6) Both houses of Congress started sending bills to be signed into law by
respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning Cabinet, without any
recognition from any sector of government, and without any support from the Armed Forces of
the Philippines and the Philippine National Police, the petitioner continues to claim that his
inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress
have recognized respondent Arroyo as the President. Implicitly clear in that recognition is
the premise that the inability of petitioner Estrada is no longer temporary. Congress has
clearly rejected petitioners claim of inability.
The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses
of Congress recognizing respondent Arroyo as President of the Philippines. Following Taada v.
Cuenco,[102] we hold that this Court cannot exercise its judicial power for this is an issue in
regard to which full discretionary authorityhas been delegated to the Legislative x x x branch of
the government. Or to use the language in Baker vs. Carr,[103] there is a textually demonstrable
constitutional commitment of the issue to a coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it. Clearly, the Court cannot pass upon
petitioners claim of inability to discharge the powers and duties of the presidency. The question
is political in nature and addressed solely to Congress by constitutional fiat. It is a
political issue which cannot be decided by this Court without transgressing the principle of
separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed
by this Court.
IV
Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed against him before the
respondent Ombudsman should be prohibited because he has not been convicted in the
impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit,
whether criminal or civil.
Before resolving petitioners contentions, a revisit of our legal history on executive
immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction
emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco tiaco and
Crossfield,[104] the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes,
Governor-General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police
and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly
conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr.
Justice Johnson, held:
The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office, do
what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under
the guise of the execution of the law, could walk defiantly abroad, destroying rights of person
and of property, wholly free from interference of courts or legislatures. This does not mean,
either, that a person injured by the executive authority by an act unjustifiable under the law has
no remedy, but must submit in silence. On the contrary, it means, simply, that the Governor-
General, like the judges of the courts and the members of the Legislature, may not be personally
mulcted in civil damages for the consequences of an act executed in the performance of his
official duties. The judiciary has full power to, and will, when the matter is properly presented to it
and the occasion justly warrants it, declare an act of the Governor-General illegal and void and
place as nearly as possible in status quo any person who has been deprived his liberty or his
property by such act. This remedy is assured to every person, however humble or of whatever
country, when his personal or property rights have been invaded, even by the highest authority
of the state. The thing which the judiciary can not do is mulct the Governor-General personally in
damages which result from the performance of his official duty, any more that it can a member of
the Philippine Commission or the Philippine Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched the
liability of judges and drew an analogy between such liability and that of the Governor-General,
that the latter is liable when he acts in a case so plainly outside of his power and authority that
he can not be said to have exercise discretion in determining whether or not he had the right to
act. What is held here is that he will be protected from personal liability for damages not only
when he acts within his authority, but also when he is without authority, provided he actually
used discretion and judgment, that is, the judicial faculty, in determining whether he had
authority to act or not. In other words, he is entitled to protection in determining the question of
his authority. If he decide wrongly, he is still protected provided the question of his authority was
one over which two men, reasonably qualified for that position, might honestly differ; but he is
not protected if the lack of authority to act is so plain that two such men could not honestly differ
over its determination. In such case, he acts, not as Governor-General but as a private
individual, and, as such, must answer for the consequences of his act.
Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted
immunity from suit, viz: x x x. Action upon important matters of state delayed; the time and
substance of the chief executive spent in wrangling litigation; disrespect engendered for the
person of one of the highest officials of the State and for the office he occupies; a tendency to
unrest and disorder; resulting in a way, in a distrust as to the integrity of government itself.[105]
Our 1935 Constitution took effect but it did not contain any specific provision on
executive immunity. Then came the tumult of the martial law years under the late President
Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of
the amendments involved executive immunity. Section 17, Article VII stated:
The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall
lie for official acts done by him or by others pursuant to his specific orders during his tenure.
The immunities herein provided shall apply to the incumbent President referred to in Article XVII
of this Constitution.
In his second Vicente G. Sinco Professional Chair Lecture entitled, Presidential Immunity And All
The Kings Men: The Law Of Privilege As A Defense To Actions For Damages,[106] petitioners
learned counsel, former Dean of the UP college of Law, Atty. Pacifico Agabin, brightlined the
modifications effected by this constitutional amendment on the existing law on executive
privilege. To quote his disquisition:
In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying
the absolute immunity concept. First, we extended it to shield the President not only from civil
claims but also from criminal cases and other claims. Second, we enlarged its scope so that it
would cover even acts of the President outside the scope of official duties. And third, we
broadened its coverage so as to include not only the President but also other persons, be they
government officials or private individuals, who acted upon orders of the President. It can be
said that at that point most of us were suffering from AIDS (or absolute immunity defense
syndrome).
The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian
concept of executive immunity in the 1973 Constitution. The move was led by then Member
of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after
incumbency immunity granted to President Marcos violated the principle that a public office is
a public trust. He denounced the immunity as a return to the anachronism the king can do no
wrong.[107] The effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted from office by
the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did
not reenact the executive immunity provision of the 1973 Constitution. The
following explanation was given by delegate J. Bernas, viz:[108]
Mr. Suarez. Thank you.
The last question is with reference to the committees omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well
in striking out this second sentence, at the very least, of the original provision on immunity from
suit under the 1973 Constitution. But would the Committee members not agree to a restoration
of at least the first sentence that the President shall be immune from suit during his tenure,
considering that if we do not provide him that kind of an immunity, he might be spending all his
time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?
Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam President.
I thank the Commissioner for the clarification.
We shall now rule on the contentions of petitioner in the light of this history. We reject his
argument that he cannot be prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the
walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate Resolution No. 83 Recognizing that the
Impeachment Court is Functus Officio.[109] Since the Impeachment Court is now functus officio, it
is untenable for petitioner to demand that he should first be impeached and then convicted
before he can be prosecuted. The plea if granted, would put a perpetual bar against his
prosecution. Such a submission has nothing to commend itself for it will place him in a better
situation than a non-sitting President who has not been subjected to impeachment proceedings
and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings have become moot due to the
resignation of the President, the proper criminal and civil cases may already be filed against
him, viz:[110]
xxx
Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgment of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says,
the criminal and civil aspects of it may continue in the ordinary courts.
This is in accord with our ruling in In re: Saturnino Bermudez[111]that incumbent
Presidents are immune from suit or from being brought to court during the period of their
incumbency and tenure but not beyond. Considering the peculiar circumstance that the
impeachment process against the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal
prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His
reliance in the case of Lecaroz vs. Sandiganbayan[112] and related cases[113]are inapropos for
they have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-sitting
President. The cases filed against petitioner Estrada are criminal in character. They involve
plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes,
especially plunder which carries the death penalty, be covered by the allege mantle of immunity
of a non-sitting president.Petitioner cannot cite any decision of this Court licensing the President
to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be
anomalous to hold that immunity is an inoculation from liability for unlawful acts and
omissions. The rule is that unlawful acts of public officials are not acts of the State and the
officer who acts illegally is not acting as such but stands in the same footing as any other
trespasser.[114] Indeed, a critical reading of current literature on executive immunity will reveal
a judicial disinclination to expand the privilege especially when it impedes the search for
truth or impairs the vindication of a right. In the 1974 case of US v. Nixon,[115] US President
Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and
documents relating to his conversations with aids and advisers. Seven advisers of President
Nixons associates were facing charges of conspiracy to obstruct justice and other offenses
which were committed in a burglary of the Democratic National Headquarters in Washingtons
Watergate Hotel during the 1972 presidential campaign. President Nixon himself was named an
unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among
others, that the President was not subject to judicial process and that he should first be
impeached and removed from office before he could be made amenable to judicial
proceedings. The claim was rejected by the US Supreme Court. It concluded that when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is
based only on the generalized interest in confidentiality, it cannot prevail over the fundamental
demands of due process of law in the fair administration of criminal justice. In the 1982 case of
Nixon v. Fitzgerald,[116] the US Supreme Court further held that the immunity of the President
from civil damages covers only official acts. Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones[117] where it held that the US
Presidents immunity from suits for money damages arising out of their official acts is inapplicable
to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of
executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is
that a public office is a public trust.[118] It declared as a state policy that (t)he State shall
maintain honesty and integrity in the public service and take positive and effective measures
against graft and corruption."[119] It ordained that (p)ublic officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.[120] It set the rule that (t)he right
of the State to recover properties unlawfully acquired by public officials or employees, from them
or from their nominees or transferees, shall not be barred by prescription, laches or
estoppel.[121] It maintained the Sandiganbayan as an anti-graft court.[122] It created the office of
the Ombudsman and endowed it with enormous powers, among which is to "(i)nvestigate on its
own, or on complaint by any person, any act or omission of any public official, employee, office
or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.[123] The Office of the Ombudsman was also given fiscal autonomy.[124] These
constitutional policies will be devalued if we sustain petitioners claim that a non-sitting
president enjoys immunity from suit for criminal acts committed during his incumbency.
V We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de
Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be stopped from
conducting the investigation of the cases filed against him due to the barrage of prejudicial
publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all
set to file the criminal cases in violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on how to deal with
the rain of unrestrained publicity during the investigation and trial of high profile
cases.[125] The British approach the problem with the presumption that publicity will prejudice
a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to
fair trial suffers a threat.[126] The American approach is different. US courts assume
a skeptical approach about the potential effect of pervasive publicity on the right of an accused
to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial
probability of irreparable harm, strong likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to stop
the trials or annul convictions in high profile criminal cases.[127] In People vs. Teehankee,
Jr.,[128] later reiterated in the case of Larranaga vs. Court of Appeals, et al.,[129] we laid down
the doctrine that:
We cannot sustain appellants claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive
publicity, just like all high profile and high stake criminal trials. Then and now, we now rule that
the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible
reporting enhances an accuseds right to a fair trial for, as well pointed out, a responsible press
has always been regarded as the handmaiden of effective judicial administration, especially in
the criminal field x x x. The press does not simply publish information about trials but guards
against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact
that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right to
our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For
another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the
world. We have not installed the jury system whose members are overly protected from publicity
lest they lose their impartiality. x x x x x x x x x. Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to a litigation. Their mere
exposure to publications and publicity stunts does not per se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test
of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced, not simply that they might be,
by the barrage of publicity. In the case at bar, the records do not show that the trial judge
developed actual bias against appellant as a consequence of the extensive media coverage of
the pre-trial and trial of his case. The totality of circumstances of the case does not prove that
the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable if
change even by evidence presented during the trial. Appellant has the burden to prove this
actual bias and he has not discharged the burden.
Leon, etc.[130] and its companion cases. viz.:
Again, petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early invocation
considering the substantial risk to their liberty while undergoing a preliminary investigation.
xxx
The democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high velocity
of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts
and fiction about the case continues unabated even today. Commentators still bombard the
public with views not too many of which are sober and sublime. Indeed, even the principal actors
in the case the NBI, the respondents, their lawyers and their sympathizers have participated in
this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding,
criminal trials cannot be completely closed to the press and public. Inn the seminal case
of Richmond Newspapers, Inc. v. Virginia, it was wisely held:
xxx
(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that the time this Nations organic laws were adopted, criminal trials
both here and in England had long been presumptively open, thus giving assurance that the
proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In addition, the significant community
therapeutic value of public trials was recognized: when a shocking crime occurs, a community
reaction of outrage and public protest often follows, and thereafter the open processes of justice
serve an important prophylactic purpose, providing an outlet for community concern, hostility,
and emotion. To work effectively, it is important that societys criminal process satisfy the
appearance of justice, Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can
best be provided by allowing people to observe such process. From this unbroken,
uncontradicted history, supported by reasons as valid today as in centuries past, it must be
concluded that a presumption of openness inheres in the very nature of a criminal trial under this
Nations system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct
1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on matters
relating to the functioning of government. In guaranteeing freedoms such as those of speech
and press, the First Amendment can be read as protecting the right of everyone to attend trials
so as give meaning to those explicit guarantees; the First Amendment right to receive
information and ideas means, in the context of trials, that the guarantees of speech and press,
standing alone, prohibit government from summarily closing courtroom doors which had long
been open to the public at the time the First Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which it was
deliberately linked by the draftsmen. A trial courtroom is a public place where the people
generally and representatives of the media have a right to be present, and where their presence
historically has been thought to enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly guaranteed,
have been recognized as indispensable to the enjoyment of enumerated rights. The right to
attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to
attend such trials, which people have exercised for centuries, important aspects of freedom of
speech and of the press could be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et
al. vs. Alejandro, et al.,we held that to warrant a finding of prejudicial publicity there must
be allegation and proof that the judges have been unduly influenced, not simply that they might
be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove
that the tone and content of the publicity that attended the investigation of petitioners fatally
infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the
subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically
unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief
State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is
a factor to consider in determining whether they can easily be blinded by the klieg lights of
publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not
appear that they considered any extra-record evidence except evidence properly adduced by the
parties. The length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any member of
the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.
(emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent
Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of
proof.[131] He needs to show more weighty social science evidence to successfully prove the
impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the
petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the
office of the respondent Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have already been infected by bias
because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to
come out with its findings and the Court cannot second guess whether its recommendation will
be unfavorable to the petitioner.
The records show that petitioner has instead charged respondent Ombudsman himself
with bias. To quote petitioners submission, the respondent Ombudsman has been influenced by
the barrage of slanted news reports, and he has buckled to the threats and pressures directed at
him by the mobs.[132] News reports have also been quoted to establish that the respondent
Ombudsman has already prejudged the cases of the petitioner[133]and it is postulated that the
prosecutors investigating the petitioner will be influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is insubstantial. The
accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice
by this Court especially in light of the denials of the respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and regularity in the performance of official duty to
which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e.,
that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our
Revised Rules of Criminal Procedure, give investigating prosecutors the independence to make
their own findings and recommendations albeit they are reviewable by their superiors.[134] They
can be reversed but they can not be compelled to change their recommendations nor can they
be compelled to prosecute cases which they believe deserve dismissal. In other words,
investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the
respondent Ombudsman resolves to file the cases against the petitioner and the latter believes
that the finding of probable cause against him is the result of bias, he still has the remedy of
assailing it before the proper court.
VI.
Epilogue
A word of caution to the hooting throng. The cases against the petitioner will now acquire
a different dimension and then move to a new stage - - - the Office of the Ombudsman.
Predictably, the call from the majority for instant justice will hit a higher decibel while the
gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused
to a fair investigation and trial which has been categorized as the most fundamental of all
freedoms.[135] To be sure, the duty of a prosecutor is more to do justice and less to prosecute.
His is the obligation to insure that the preliminary investigation of the petitioner shall have a
circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls the
impatient vehemence of the majority. Rights in a democracy are not decided by the mob whose
judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power
of number for in a democracy, the dogmatism of the majority is not and should never be the
definition of the rule of law. If democracy has proved to be the best form of government, it is
because it has respected the right of the minority to convince the majority that it is wrong.
Tolerance of multiformity of thoughts, however offensive they may be, is the key to mans
progress from the cave to civilization. Let us not throw away that key just to pander to some
peoples prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent
Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180643 September 4, 2008
ROMULO L. NERI, petitioner,
vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND
INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE
COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres to the Office of the
President. It exists to protect public interest, not to benefit a particular public official. Its purpose,
among others, is to assure that the nation will receive the benefit of candid, objective and
untrammeled communication and exchange of information between the President and his/her
advisers in the process of shaping or forming policies and arriving at decisions in the exercise of
the functions of the Presidency under the Constitution. The confidentiality of the President’s
conversations and correspondence is not unique. It is akin to the confidentiality of judicial
deliberations. It possesses the same value as the right to privacy of all citizens and more,
because it is dictated by public interest and the constitutionally ordained separation of
governmental powers.
In these proceedings, this Court has been called upon to exercise its power of review and
arbitrate a hotly, even acrimoniously, debated dispute between the Court’s co-equal branches of
government. In this task, this Court should neither curb the legitimate powers of any of the co-
equal and coordinate branches of government nor allow any of them to overstep the boundaries
set for it by our Constitution. The competing interests in the case at bar are the claim of
executive privilege by the President, on the one hand, and the respondent Senate Committees’
assertion of their power to conduct legislative inquiries, on the other. The particular facts and
circumstances of the present case, stripped of the politically and emotionally charged rhetoric
from both sides and viewed in the light of settled constitutional and legal doctrines, plainly lead
to the conclusion that the claim of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the
"Decision"), granting the petition for certiorari filed by petitioner Romulo L. Neri against the
respondent Senate Committees on Accountability of Public Officers and Investigations, 1 Trade
and Commerce,2 and National Defense and Security (collectively the "respondent
Committees").3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees and testified for
about eleven (11) hours on matters concerning the National Broadband Project (the "NBN
Project"), a project awarded by the Department of Transportation and Communications
("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE"). Petitioner disclosed that then
Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered him P200 Million in
exchange for his approval of the NBN Project. He further narrated that he informed President
Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed him
not to accept the bribe. However, when probed further on President Arroyo and petitioner’s
discussions relating to the NBN Project, petitioner refused to answer, invoking "executive
privilege." To be specific, petitioner refused to answer questions on: (a) whether or not President
Arroyo followed up the NBN Project,4 (b) whether or not she directed him to prioritize it,5 and (c)
whether or not she directed him to approve it.6
Respondent Committees persisted in knowing petitioner’s answers to these three questions by
requiring him to appear and testify once more on November 20, 2007. On November 15, 2007,
Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to
dispense with petitioner’s testimony on the ground of executive privilege. 7The letter of Executive
Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing questions fall under
conversations and correspondence between the President and public officials which
are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May
1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of
conversations of the President is necessary in the exercise of her executive and policy
decision making process. The expectation of a President to the confidentiality of her
conversations and correspondences, like the value which we accord deference for the
privacy of all citizens, is the necessity for protection of the public interest in candid,
objective, and even blunt or harsh opinions in Presidential decision-making.
Disclosure of conversations of the President will have a chilling effect on the
President, and will hamper her in the effective discharge of her duties and
responsibilities, if she is not protected by the confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information sought
to be disclosed might impair our diplomatic as well as economic relations with the
People’s Republic of China. Given the confidential nature in which these information
were conveyed to the President, he cannot provide the Committee any further details
of these conversations, without disclosing the very thing the privilege is designed to
protect.
In light of the above considerations, this Office is constrained to invoke the settled
doctrine of executive privilege as refined in Senate v. Ermita, and has advised
Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded
to him except the foregoing questions involving executive privilege, we therefore
request that his testimony on 20 November 2007 on the ZTE / NBN project be
dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees upon orders of
the President invoking executive privilege. On November 22, 2007, the respondent Committees
issued the show-cause letter requiring him to explain why he should not be cited in contempt. On
November 29, 2007, in petitioner’s reply to respondent Committees, he manifested that it was
not his intention to ignore the Senate hearing and that he thought the only remaining questions
were those he claimed to be covered by executive privilege. He also manifested his willingness
to appear and testify should there be new matters to be taken up. He just requested that he be
furnished "in advance as to what else" he "needs to clarify."
Respondent Committees found petitioner’s explanations unsatisfactory. Without responding to
his request for advance notice of the matters that he should still clarify, they issued the Order
dated January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of
Senator Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of
respondent Committees and ordering his arrest and detention at the Office of the Senate
Sergeant-at-Arms until such time that he would appear and give his testimony.
On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted that
he had not shown "any contemptible conduct worthy of contempt and arrest." He emphasized
his willingness to testify on new matters, but respondent Committees did not respond to his
request for advance notice of questions. He also mentioned the petition for certiorari he
previously filed with this Court on December 7, 2007. According to him, this should restrain
respondent Committees from enforcing the order dated January 30, 2008 which declared him in
contempt and directed his arrest and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for
TRO/Preliminary Injunction) on February 1, 2008. In the Court’s Resolution dated February 4,
2008, the parties were required to observe the status quo prevailing prior to the Order dated
January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the
communications elicited by the three (3) questions were covered by executive privilege;
and second, respondent Committees committed grave abuse of discretion in issuing the
contempt order. Anent the first ground, we considered the subject communications as falling
under the presidential communications privilege because (a) they related to a quintessential
and non-delegable power of the President, (b) they were received by a close advisor of the
President, and (c) respondent Committees failed to adequately show a compelling need that
would justify the limitation of the privilege and the unavailability of the information elsewhere by
an appropriate investigating authority. As to the second ground, we found that respondent
Committees committed grave abuse of discretion in issuing the contempt order because (a)
there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the
questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the
proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article
VI of the Constitution because their inquiry was not in accordance with the "duly published rules
of procedure," and (e) they issued the contempt order arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored
on the following grounds:
I WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT.
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO DOUBT
THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES
PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT
MERELY THEIR OVERSIGHT FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE CAN BE NO
PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS
PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO
FACTUAL OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED
BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE
PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE
PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE
DECISION IS APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF
PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING
NEED TO JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE
WOULD SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE OF THEIR
PRIMARY FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION,
AND THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND
TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS DID
NOT COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED
CONTEMPT ORDER, CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE
INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID
DOWN IN SENATE V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE
WITH THEIR INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE
VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF
PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN
THE COURT CONSIDERED THE OSG’S INTERVENTION ON THIS ISSUE
E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY
OR PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating and distorting the
Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees
from investigating the NBN Project or asking him additional questions. According to petitioner,
the Court merely applied the rule on executive privilege to the facts of the case. He further
submits the following contentions: first, the assailed Decision did not reverse the presumption
against executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed
to overcome the presumption of executive privilege because it appears that they could legislate
even without the communications elicited by the three (3) questions, and they admitted that they
could dispense with petitioner’s testimony if certain NEDA documents would be given to
them; third, the requirement of specificity applies only to the privilege for State, military and
diplomatic secrets, not to the necessarily broad and all-encompassing presidential
communications privilege; fourth, there is no right to pry into the President’s thought processes
or exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the
Court has the power and duty to annul the Senate Rules; seventh, the Senate is not a
continuing body, thus the failure of the present Senate to publish its Rules of Procedure
Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on them; eighth, the
requirement for a witness to be furnished advance copy of questions comports with due process
and the constitutional mandate that the rights of witnesses be respected; and ninth, neither
petitioner nor respondent has the final say on the matter of executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical
pronouncement from the Court that the assailed Orders were issued by respondent Committees
pursuant to their oversight function; hence, there is no reason for them "to make much" of the
distinction between Sections 21 and 22, Article VI of the Constitution; (2) presidential
communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v.
Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the communications elicited by the
three (3) questions are covered by executive privilege, because all the elements of the
presidential communications privilege are present; (4) the subpoena ad testificandum issued by
respondent Committees to petitioner is fatally defective under existing law and jurisprudence; (5)
the failure of the present Senate to publish its Rules renders the same void; and (6) respondent
Committees arbitrarily issued the contempt order.
Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008 (granting
the Office of the Solicitor General’s Motion for Leave to Intervene and to Admit Attached
Memorandum) only after the promulgation of the Decision in this case is foreclosed by its
untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are
as follows:
(1) whether or not there is a recognized presumptive presidential communications
privilege in our legal system;
(2) whether or not there is factual or legal basis to hold that the communications
elicited by the three (3) questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications
elicited by the three (3) questions are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in
issuing the contempt order.
We shall discuss these issues seriatim.
I Section 2(b) in relation to Section 3 virtually provides that, once the head of office
There Is a Recognized Presumptive
Presidential Communications Privilege
Respondent Committees ardently argue that the Court’s declaration that presidential
communications are presumptively privileged reverses the "presumption" laid down in Senate v.
Ermita11 that "inclines heavily against executive secrecy and in favor of disclosure." Respondent
Committees then claim that the Court erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in favor of
the presidential communications privilege is mentioned and adopted in our legal system.
That is far from the truth. The Court, in the earlier case of Almonte v. Vasquez,12 affirmed that
the presidential communications privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution. Even Senate v.
Ermita,13 the case relied upon by respondent Committees, reiterated this concept. There, the
Court enumerated the cases in which the claim of executive privilege was recognized, among
them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government
(PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that "there are certain
types of information which the government may withhold from the public, 16" that there is a
"governmental privilege against public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters";17 and that "the right to information does not
extend to matters recognized as ‘privileged information’ under the separation of powers,
by which the Court meant Presidential conversations, correspondences, and discussions
in closed-door Cabinet meetings."18
Respondent Committees’ observation that this Court’s Decision reversed the "presumption that
inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal
interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the
true intent and meaning of a decision, no specific portion thereof should be isolated and resorted
to, but the decision must be considered in its entirety.19
Note that the aforesaid presumption is made in the context of the circumstances obtaining
in Senate v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464,
Series of 2005. The pertinent portion of the decision in the said case reads:
From the above discussion on the meaning and scope of executive privilege, both in
the United States and in this jurisprudence, a clear principle emerges. Executive
privilege, whether asserted against Congress, the courts, or the public, is recognized
only in relation to certain types of information of a sensitive character. While executive
privilege is a constitutional concept, a claim thereof may be valid or not depending on
the ground invoked to justify it and the context in which it is made. Noticeably absent
is any recognition that executive officials are exempt from the duty to disclose
information by the mere fact of being executive officials. Indeed, the extraordinary
character of the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure. (Emphasis and
underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the
"exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464,
solely by virtue of their positions in the Executive Branch. This means that when an executive
official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt
from disclosure, there can be no presumption of authorization to invoke executive privilege
given by the President to said executive official, such that the presumption in this situation
inclines heavily against executive secrecy and in favor of disclosure.
Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:
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, or in those instances where
exemption from disclosure is necessary to the discharge of highly important executive
responsibilities. The doctrine of executive privilege is thus premised on the fact that
certain information must, as a matter of necessity, be kept confidential in pursuit of
the public interest. The privilege being, by definition, an exemption from the obligation
to disclose information, in this case to Congress, the necessity must be of such high
degree as to outweigh the public interest in enforcing that obligation in a particular
case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to
limit to the President the power to invoke the privilege. She may of course authorize
the Executive Secretary to invoke the privilege on her behalf, in which case the
Executive Secretary must state that the authority is "By order of the President", which
means that he personally consulted with her. The privilege being an extraordinary
power, it must be wielded only by the highest official in the executive hierarchy. In
other words, the President may not authorize her subordinates to exercise such
 power. There is even less reason to uphold such authorization in the instant case
where the authorization is not explicit but by mere silence. Section 3, in relation to
Section 2(b), is further invalid on this score.
The constitutional infirmity found in the blanket authorization to invoke executive privilege
granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this
case.
In this case, it was the President herself, through Executive Secretary Ermita, who invoked
executive privilege on a specific matter involving an executive agreement between the
Philippines and China, which was the subject of the three (3) questions propounded to petitioner
Neri in the course of the Senate Committees’ investigation. Thus, the factual setting of this case
markedly differs from that passed upon in Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to
the ruling in Senate v. Ermita,21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used
even prior to the promulgation of the 1986 Constitution. Being of American origin, it is
best understood in light of how it has been defined and used in the legal literature of
the United States.
Schwart defines executive privilege as "the power of the Government to withhold
information from the public, the courts, and the Congress. Similarly, Rozell
defines it as "the right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately the public." x x x In this
jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte
v. Vasquez. Almonte used the term in reference to the same privilege subject of
Nixon. It quoted the following portion of the Nixon decision which explains the basis for
the privilege:
"The expectation of a President to the confidentiality of his conversations and
correspondences, like the claim of confidentiality of judicial deliberations, for
example, he has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in Presidential decision-
making. A President and those who assist him must be free to explore alternatives in
the process of shaping policies and making decisions and to do so in a way many
would be unwilling to express except privately. These are the considerations
justifying a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and inextricably rooted
in the separation of powers under the Constitution x x x " (Emphasis and italics
supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential
communication," which was recognized early on in Almonte v. Vasquez. To construe the
passage in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent
Committees, referring to the non-existence of a "presumptive authorization" of an executive
official, to mean that the "presumption" in favor of executive privilege "inclines heavily against
executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and
make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the
Executive Department and the Legislative Department to explain why there should be no implied
authorization or presumptive authorization to invoke executive privilege by the President’s
subordinate officials, as follows:
When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege. They are
not exempt by the mere fact that they are department heads. Only one
executive official may be exempted from this power - the President on whom
executive power is vested, hence, beyond the reach of Congress except through the
power of impeachment. It is based on he being the highest official of the executive
branch, and the due respect accorded to a co-equal branch of governments which is
sanctioned by a long-standing custom. (Underscoring supplied)
Thus, if what is involved is the presumptive privilege of presidential communications when
invoked by the President on a matter clearly within the domain of the Executive, the said
presumption dictates that the same be recognized and be given preference or priority, in the
absence of proof of a compelling or critical need for disclosure by the one assailing such
presumption. Any construction to the contrary will render meaningless the presumption accorded
by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates
jurisprudence citing "the considerations justifying a presumptive privilege for Presidential
communications."23
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions are
not covered by executive privilege because the elements of the presidential communications
privilege are not present.
A. The power to enter into an executive agreement is a "quintessential and non-delegable
presidential power."
First, respondent Committees contend that the power to secure a foreign loan does not relate to
a "quintessential and non-delegable presidential power," because the Constitution does not vest
it in the President alone, but also in the Monetary Board which is required to give its prior
concurrence and to report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such power
less executive. "Quintessential" is defined as the most perfect embodiment of something, the
concentrated essence of substance.24 On the other hand, "non-delegable" means that a power
or duty cannot be delegated to another or, even if delegated, the responsibility remains with the
obligor.25 The power to enter into an executive agreement is in essence an executive power.
This authority of the President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence. 26 Now, the fact that the
President has to secure the prior concurrence of the Monetary Board, which shall submit to
Congress a complete report of its decision before contracting or guaranteeing foreign loans,
does not diminish the executive nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive and judicial
branches of government by no means prescribes absolute autonomy in the discharge by each
branch of that part of the governmental power assigned to it by the sovereign people. There is
the corollary doctrine of checks and balances, which has been carefully calibrated by the
Constitution to temper the official acts of each of these three branches. Thus, by analogy, the
fact that certain legislative acts require action from the President for their validity does not render
such acts less legislative in nature. A good example is the power to pass a law. Article VI,
Section 27 of the Constitution mandates that every bill passed by Congress shall, before it
becomes a law, be presented to the President who shall approve or veto the same. The fact that
the approval or vetoing of the bill is lodged with the President does not render the power to pass
law executive in nature. This is because the power to pass law is generally a quintessential and
non-delegable power of the Legislature. In the same vein, the executive power to enter or not to
enter into a contract to secure foreign loans does not become less executive in nature because
of conditions laid down in the Constitution. The final decision in the exercise of the said
executive power is still lodged in the Office of the President.
B. The "doctrine of operational proximity" was laid down precisely to limit the scope of
the presidential communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the "doctrine of
operational proximity" for the reason that "it maybe misconstrued to expand the scope of the
presidential communications privilege to communications between those who are ‘operationally
proximate’ to the President but who may have "no direct communications with her."
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case27precisely to limit the scope of the presidential communications privilege. The U.S. court
was aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully
cabined its reach by explicitly confining it to White House staff, and not to staffs of the agencies,
and then only to White House staff that has "operational proximity" to direct presidential
decision-making, thus:
We are aware that such an extension, unless carefully circumscribed to accomplish
the purposes of the privilege, could pose a significant risk of expanding to a large
swath of the executive branch a privilege that is bottomed on a recognition of the
unique role of the President. In order to limit this risk, the presidential communications
privilege should be construed as narrowly as is consistent with ensuring that the
confidentiality of the President’s decision-making process is adequately protected. Not
every person who plays a role in the development of presidential advice, no
matter how remote and removed from the President, can qualify for the
privilege. In particular, the privilege should not extend to staff outside the White
House in executive branch agencies. Instead, the privilege should apply only to
communications authored or solicited and received by those members of an
immediate White House advisor’s staff who have broad and significant responsibility
for investigation and formulating the advice to be given the President on the particular
matter to which the communications relate. Only communications at that level are
close enough to the President to be revelatory of his deliberations or to pose a
risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it is "operational
proximity" to the President that matters in determining whether "[t]he
President’s confidentiality interests" is implicated). (Emphasis supplied)
In the case at bar, the danger of expanding the privilege "to a large swath of the executive
branch" (a fear apparently entertained by respondents) is absent because the official involved
here is a member of the Cabinet, thus, properly within the term "advisor" of the President; in fact,
her alter ego and a member of her official family. Nevertheless, in circumstances in which the
official involved is far too remote, this Court also mentioned in the Decision the organizational
test laid down in Judicial Watch, Inc. v. Department of Justice.28 This goes to show that the
operational proximity test used in the Decision is not considered conclusive in every case. In
determining which test to use, the main consideration is to limit the availability of executive
privilege only to officials who stand proximate to the President, not only by reason of their
function, but also by reason of their positions in the Executive’s organizational structure. Thus,
respondent Committees’ fear that the scope of the privilege would be unnecessarily expanded
with the use of the operational proximity test is unfounded.
C. The President’s claim of executive privilege is not merely based on a generalized
interest; and in balancing respondent Committees’ and the President’s clashing interests,
the Court did not disregard the 1987 Constitutional provisions on government
transparency, accountability and disclosure of information.
Third, respondent Committees claim that the Court erred in upholding the President’s
invocation, through the Executive Secretary, of executive privilege because (a) between
respondent Committees’ specific and demonstrated need and the President’s generalized
interest in confidentiality, there is a need to strike the balance in favor of the former; and (b) in
the balancing of interest, the Court disregarded the provisions of the 1987 Philippine Constitution
on government transparency, accountability and disclosure of information, specifically, Article III,
Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section
10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37
It must be stressed that the President’s claim of executive privilege is not merely founded on her
generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive
Secretary Ermita specified presidential communications privilege in relation to diplomatic
and economic relations with another sovereign nation as the bases for the claim. Thus, the
Letter stated:
The context in which executive privilege is being invoked is that the information
sought to be disclosed might impair our diplomatic as well as economic
relations with the People’s Republic of China. Given the confidential nature in
which this information were conveyed to the President, he cannot provide the
Committee any further details of these conversations, without disclosing the very thing
the privilege is designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the
reasons for the claim with such particularity as to compel disclosure of the information which the
privilege is meant to protect. This is a matter of respect for a coordinate and co-equal
department.
It is easy to discern the danger that goes with the disclosure of the President’s communication
with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was
actually a product of the meeting of minds between officials of the Philippines and China.
Whatever the President says about the agreement - particularly while official negotiations are
ongoing - are matters which China will surely view with particular interest. There is danger in
such kind of exposure. It could adversely affect our diplomatic as well as economic relations with
the People’s Republic of China. We reiterate the importance of secrecy in matters involving
foreign negotiations as stated in United States v. Curtiss-Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution, and their success must often
depend on secrecy, and even when brought to a conclusion, a full disclosure of all the
measures, demands, or eventual concessions which may have been proposed or
contemplated would be extremely impolitic, for this might have a pernicious influence
on future negotiations or produce immediate inconveniences, perhaps danger and
mischief, in relation to other powers. The necessity of such caution and secrecy was
one cogent reason for vesting the power of making treaties in the President, with the
advice and consent of the Senate, the principle on which the body was formed
confining it to a small number of members. To admit, then, a right in the House of
Representatives to demand and to have as a matter of course all the papers
respecting a negotiation with a foreign power would be to establish a dangerous
precedent.
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers
relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan
Citizens Action Party, et al. v. Thomas G. Aquino, et al.39upheld the privileged character of
diplomatic negotiations. In Akbayan, the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the right to information, the Court
in Chavez v. PCGG held that "information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest." Even earlier, the same privilege was
upheld in People’s Movement for Press Freedom (PMPF) v. Manglapus wherein the
Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the
President’s representatives on the state of the then on-going negotiations of the RP-
US Military Bases Agreement. The Court denied the petition, stressing that "secrecy
of negotiations with foreign countries is not violative of the constitutional
provisions of freedom of speech or of the press nor of the freedom of access to
information." The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and
expedition of decision which are inherent in executive action. Another
essential characteristic of diplomacy is its confidential nature.Although
much has been said about "open" and "secret" diplomacy, with
disparagement of the latter, Secretaries of State Hughes and Stimson have
clearly analyzed and justified the practice. In the words of Mr. Stimson:
"A complicated negotiation …cannot be carried through
without many, many private talks and discussion, man to
man; many tentative suggestions and proposals. Delegates
from other countries come and tell you in confidence of their
troubles at home and of their differences with other countries
and with other delegates; they tell you of what they would do
under certain circumstances and would not do under other
circumstances… If these reports… should become public…
who would ever trust American Delegations in another
conference? (United States Department of State, Press
Releases, June 7, 1930, pp. 282-284)
xxxx
There is frequent criticism of the secrecy in which negotiation with
foreign powers on nearly all subjects is concerned. This, it is claimed,
is incompatible with the substance of democracy. As expressed by one
writer, "It can be said that there is no more rigid system of silence anywhere
in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott
Co., 1938) President Wilson in starting his efforts for the conclusion of the
World War declared that we must have "open covenants, openly arrived at."
He quickly abandoned his thought.
No one who has studied the question believes that such a method of
publicity is possible. In the moment that negotiations are started,
pressure groups attempt to "muscle in." An ill-timed speech by one of
the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to a widespread
propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for
discussion before it is approved. (The New American Government and
Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright
Export Corp. that the President is the sole organ of the nation in its negotiations with
foreign countries,viz:
"x x x In this vast external realm, with its important, complicated, delicate
and manifold problems, the President alone has the power to speak or listen
as a representative of the nation. He makes treaties with the advice and
consent of the Senate; but he alone negotiates. Into the field of negotiation
the Senate cannot intrude; and Congress itself is powerless to invade it. As
Marshall said in his great arguments of March 7, 1800, in the House of
Representatives, "The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations."
Annals, 6th Cong., col. 613… (Emphasis supplied; underscoring in the
original)
Considering that the information sought through the three (3) questions subject of this Petition
involves the President’s dealings with a foreign nation, with more reason, this Court is wary of
approving the view that Congress may peremptorily inquire into not only official, documented
acts of the President but even her confidential and informal discussions with her close advisors
on the pretext that said questions serve some vague legislative need. Regardless of who is in
office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive to
unrestricted congressional inquiries done with increased frequency and great publicity. No
Executive can effectively discharge constitutional functions in the face of intense and unchecked
legislative incursion into the core of the President’s decision-making process, which inevitably
would involve her conversations with a member of her Cabinet.
With respect to respondent Committees’ invocation of constitutional prescriptions regarding the
right of the people to information and public accountability and transparency, the Court finds
nothing in these arguments to support respondent Committees’ case.
There is no debate as to the importance of the constitutional right of the people to information
and the constitutional policies on public accountability and transparency. These are the twin
postulates vital to the effective functioning of a democratic government. The citizenry can
become prey to the whims and caprices of those to whom the power has been delegated if they
are denied access to information. And the policies on public accountability and democratic
government would certainly be mere empty words if access to such information of public
concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific
questions, did not in any way curb the public’s right to information or diminish the importance of
public accountability and transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of
legislation. There is nothing in the assailed Decision that prohibits respondent Committees from
inquiring into the NBN Project. They could continue the investigation and even call petitioner
Neri to testify again. He himself has repeatedly expressed his willingness to do so. Our Decision
merely excludes from the scope of respondents’ investigation the three (3) questions that elicit
answers covered by executive privilege and rules that petitioner cannot be compelled to appear
before respondents to answer the said questions. We have discussed the reasons why these
answers are covered by executive privilege. That there is a recognized public interest in the
confidentiality of such information is a recognized principle in other democratic States. To put it
simply, the right to information is not an absolute right.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an
absolute right to information. By their wording, the intention of the Framers to subject such right
to the regulation of the law is unmistakable. The highlighted portions of the following provisions
show the obvious limitations on the right to information, thus:
 Article III, Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and papers
pertaining to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its transactions involving
public interest. (Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no
specific laws prescribing the exact limitations within which the right may be exercised or the
correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to
such rights, among them: (1) national security matters, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential information. National security
matters include state secrets regarding military and diplomatic matters, as well as information on
inter-government exchanges prior to the conclusion of treaties and executive agreements. It was
further held that even where there is no need to protect such state secrets, they must be
"examined in strict confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of respondent Committees to obtain
information allegedly in aid of legislation, not the people’s right to public information. This is the
reason why we stressed in the assailed Decision the distinction between these two rights. As
laid down in Senate v. Ermita, "the demand of a citizen for the production of documents pursuant
to his right to information does not have the same obligatory force as a subpoena duces
tecum issued by Congress" and "neither does the right to information grant a citizen the power to
exact testimony from government officials." As pointed out, these rights belong to Congress, not
to the individual citizen. It is worth mentioning at this juncture that the parties here are
respondent Committees and petitioner Neri and that there was no prior request for information
on the part of any individual citizen. This Court will not be swayed by attempts to blur the
distinctions between the Legislature's right to information in a legitimate legislative inquiry and
the public's right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent
Committees from inquiring into the NBN Project. All that is expected from them is to
respect matters that are covered by executive privilege.
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy
discussion on the purported legislative nature of their entire inquiry, as opposed to an oversight
inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
Committees’ inquiry into the NBN Project. To reiterate, this Court recognizes respondent
Committees’ power to investigate the NBN Project in aid of legislation. However, this Court
cannot uphold the view that when a constitutionally guaranteed privilege or right is validly
invoked by a witness in the course of a legislative investigation, the legislative purpose of
respondent Committees’ questions can be sufficiently supported by the expedient of mentioning
statutes and/or pending bills to which their inquiry as a whole may have relevance. The
jurisprudential test laid down by this Court in past decisions on executive privilege is that the
presumption of privilege can only be overturned by a showing of compelling need for
disclosure of the information covered by executive privilege.
In the Decision, the majority held that "there is no adequate showing of a compelling need that
would justify the limitation of the privilege and of the unavailability of the information elsewhere
by an appropriate investigating authority." In the Motion for Reconsideration, respondent
Committees argue that the information elicited by the three (3) questions are necessary in the
discharge of their legislative functions, among them, (a) to consider the three (3) pending Senate
Bills, and (b) to curb graft and corruption.
We remain unpersuaded by respondents’ assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other
interests and it is necessary to resolve the competing interests in a manner that would preserve
the essential functions of each branch. There, the Court weighed between presidential privilege
and the legitimate claims of the judicial process. In giving more weight to the latter, the Court
ruled that the President's generalized assertion of privilege must yield to the demonstrated,
specific need for evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the
primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said
Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice
Puno's dissenting opinion, as follows:
"... this presumptive privilege must be considered in light of our historic commitment to
the rule of law. This is nowhere more profoundly manifest than in our view that 'the
twofold aim (of criminal justice) is that guild shall not escape or innocence suffer.'
Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ
an adversary system of criminal justice in which the parties contest all issues before a
court of law. The need to develop all relevant facts in the adversary system is
both fundamental and comprehensive. The ends of criminal justice would be
defeated if judgments were to be founded on a partial or speculative
presentation of the facts. The very integrity of the judicial system and public
confidence in the system depend on full disclosure of all the facts, within the
framework of the rules of evidence. To ensure that justice is done, it is
imperative to the function of courts that compulsory process be available for the
production of evidence needed either by the prosecution or by the defense.
xxx xxx xxx
The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a
criminal trial the right 'to be confronted with the witness against him' and 'to have
compulsory process for obtaining witnesses in his favor.' Moreover, the Fifth
Amendment also guarantees that no person shall be deprived of liberty without
due process of law. It is the manifest duty of the courts to vindicate those
guarantees, and to accomplish that it is essential that all relevant and admissible
evidence be produced.
In this case we must weigh the importance of the general privilege of
confidentiality of Presidential communications in performance of the
President's responsibilities against the inroads of such a privilege on the fair
administration of criminal justice. (emphasis supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that is demonstrably relevant in
a criminal trial would cut deeply into the guarantee of due process of law and
gravely impair the basic function of the courts. A President's acknowledged
need for confidentiality in the communications of his office is general in nature,
 whereas the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular criminal
case in the administration of justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The President's broad interest in
confidentiality of communication will not be vitiated by disclosure of a limited
number of conversations preliminarily shown to have some bearing on the
pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of due process
of law in the fair administration of criminal justice. The generalized assertion of
privilege must yield to the demonstrated, specific need for evidence in a
pending criminal trial. (emphasis supplied)
In the case at bar, we are not confronted with a court’s need for facts in order to adjudge liability
in a criminal case but rather with the Senate’s need for information in relation to its legislative
functions. This leads us to consider once again just how critical is the subject information in the
discharge of respondent Committees’ functions. The burden to show this is on the respondent
Committees, since they seek to intrude into the sphere of competence of the President in order
to gather information which, according to said respondents, would "aid" them in crafting
legislation.
Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the
nature of a legislative inquiry in aid of legislation in this wise:
The sufficiency of the Committee's showing of need has come to depend, therefore,
entirely on whether the subpoenaed materials are critical to the performance of its
legislative functions. There is a clear difference between Congress' legislative tasks
and the responsibility of a grand jury, or any institution engaged in like
functions. While fact-finding by a legislative committee is undeniably a part of its
task, legislative judgments normally depend more on the predicted
consequences of proposed legislative actions and their political acceptability,
than on precise reconstruction of past events; Congress frequently legislates on
the basis of conflicting information provided in its hearings. In contrast, the
responsibility of the grand jury turns entirely on its ability to determine whether there is
probable cause to believe that certain named individuals did or did not commit specific
crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning
the content of certain conversations, the grand jury's need for the most precise
evidence, the exact text of oral statements recorded in their original form, is
undeniable. We see no comparable need in the legislative process, at least not in
the circumstances of this case. Indeed, whatever force there might once have been
in the Committee's argument that the subpoenaed materials are necessary to its
legislative judgments has been substantially undermined by subsequent events.
(Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or
demonstratively critical and specific need for facts which is so essential to the judicial power to
adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be
lightly applied to the instant case, which unlike Arnault involves a conflict between two (2)
separate, co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the
Executive and the Legislative Branches is the recognized existence of the presumptive
presidential communications privilege. This is conceded even in the Dissenting Opinion of the
Honorable Chief Justice Puno, which states:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a
qualified presumption in favor of the Presidential communications privilege. As shown
in the previous discussion, U.S. v. Nixon, as well as the other related Nixon
cases Sirica and Senate Select Committee on Presidential Campaign Activities,
et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all
recognize that there is a presumptive privilege in favor of Presidential
communications. The Almonte case quoted U.S. v. Nixon and recognized a
presumption in favor of confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the burden on the respondent
Senate Committees to overturn the presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3) questions subject of this case, to enable
them to craft legislation. Here, there is simply a generalized assertion that the information is
pertinent to the exercise of the power to legislate and a broad and non-specific reference to
pending Senate bills. It is not clear what matters relating to these bills could not be determined
without the said information sought by the three (3) questions. As correctly pointed out by the
Honorable Justice Dante O. Tinga in his Separate Concurring Opinion:
…If respondents are operating under the premise that the president and/or her
executive officials have committed wrongdoings that need to be corrected or
prevented from recurring by remedial legislation, the answer to those three
questions will not necessarily bolster or inhibit respondents from proceeding
with such legislation. They could easily presume the worst of the president in
enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives
bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law.
Interestingly, during the Oral Argument before this Court, the counsel for respondent
Committees impliedly admitted that the Senate could still come up with legislations even without
petitioner answering the three (3) questions. In other words, the information being elicited is not
so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the lawmaking
function of the Senate. For instance, question Number 1 whether the
President followed up the NBN project. According to the other counsel this
question has already been asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the
Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
 For instance, with respect to the proposed Bill of Senator Miriam Santiago,
she would like to indorse a Bill to include Executive Agreements had been
used as a device to the circumventing the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at
this problem in its factual setting as counsel for petitioner has observed,
there are intimations of a bribery scandal involving high government
officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is
that critical to the lawmaking function of the Senate? Will it result to the
failure of the Senate to cobble a Bill without this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment
to the Procurement Law, Your Honor, because the petitioner had already
testified that he was offered a P200 Million bribe, so if he was offered a
P200 Million bribe it is possible that other government officials who had
something to do with the approval of the contract would be offered the same
amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go ahead and
approve the project after being told about the alleged bribe. How critical is
that to the lawmaking function of the Senate? And the question is may they
craft a Bill a remedial law without forcing petitioner Neri to answer this
question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound
legislation requires that a proposed Bill should have some basis in fact. 42
The failure of the counsel for respondent Committees to pinpoint the specific need for the
information sought or how the withholding of the information sought will hinder the
accomplishment of their legislative purpose is very evident in the above oral exchanges. Due to
the failure of the respondent Committees to successfully discharge this burden, the presumption
in favor of confidentiality of presidential communication stands. The implication of the said
presumption, like any other, is to dispense with the burden of proof as to whether the disclosure
will significantly impair the President’s performance of her function. Needless to state this is
assumed, by virtue of the presumption.
Anent respondent Committees’ bewailing that they would have to "speculate" regarding the
questions covered by the privilege, this does not evince a compelling need for the information
sought. Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon43 held
that while fact-finding by a legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted consequences of proposed legislative actions
and their political acceptability than on a precise reconstruction of past events. It added that,
normally, Congress legislates on the basis of conflicting information provided in its hearings. We
cannot subscribe to the respondent Committees’ self-defeating proposition that without the
answers to the three (3) questions objected to as privileged, the distinguished members of the
respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent Committees’
need for information in the exercise of this function is not as compelling as in instances when the
purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is
merely an oversight function of Congress.44 And if this is the primary objective of respondent
Committees in asking the three (3) questions covered by privilege, it may even contradict their
claim that their purpose is legislative in nature and not oversight. In any event, whether or not
investigating graft and corruption is a legislative or oversight function of Congress, respondent
Committees’ investigation cannot transgress bounds set by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, "the political
question doctrine neither interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has been given to this
Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although
said provision by no means does away with the applicability of the principle in
appropriate cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee
is not really ‘in aid of legislation’ because it is not related to a purpose within the jurisdiction
of Congress, since the aim of the investigation is to find out whether or not the relatives
of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-
Graft and Corrupt Practices Act, a matter that appears more within the province of the
courts rather than of the Legislature."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the
Office of the President.48While it may be a worthy endeavor to investigate the potential
culpability of high government officials, including the President, in a given government
transaction, it is simply not a task for the Senate to perform. The role of the Legislature is to
make laws, not to determine anyone’s guilt of a crime or wrongdoing. Our Constitution has not
bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can
the Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a
"search for truth," which in respondent Committees’ view appears to be equated with the search
for persons responsible for "anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they cannot assume the
power reposed upon our prosecutorial bodies and courts. The determination of who is/are liable
for a crime or illegal activity, the investigation of the role played by each official, the
determination of who should be haled to court for prosecution and the task of coming up with
conclusions and finding of facts regarding anomalies, especially the determination of criminal
guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency.
Moreover, it bears stressing that no inquiry is an end in itself; it must be related to, and in
furtherance of, a legitimate task of the Congress, i.e. legislation. Investigations conducted solely
to gather incriminatory evidence and "punish" those investigated are indefensible. There is no
Congressional power to expose for the sake of exposure. 49 In this regard, the pronouncement
in Barenblatt v. United States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. Since Congress
may only investigate into the areas in which it may potentially legislate or appropriate,
it cannot inquire into matters which are within the exclusive province of one of the
other branches of the government. Lacking the judicial power given to the Judiciary, it
cannot inquire into matters that are exclusively the concern of the Judiciary. Neither
can it supplant the Executive in what exclusively belongs to the Executive. (Emphasis
supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have already
been filed against President Arroyo and other personalities before the Office of the Ombudsman.
Under our Constitution, it is the Ombudsman who has the duty "to investigate any act or
omission of any public official, employee, office or agency when such act or omission
appears to be illegal, unjust, improper, or inefficient."51 The Office of the Ombudsman is the
body properly equipped by the Constitution and our laws to preliminarily determine whether or
not the allegations of anomaly are true and who are liable therefor. The same holds true for our
courts upon which the Constitution reposes the duty to determine criminal guilt with finality.
Indeed, the rules of procedure in the Office of the Ombudsman and the courts are well-
defined and ensure that the constitutionally guaranteed rights of all persons, parties and
witnesses alike, are protected and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of
their investigation, they have the constitutional duty to refer the matter to the appropriate agency
or branch of government. Thus, the Legislature’s need for information in an investigation of graft
and corruption cannot be deemed compelling enough to pierce the confidentiality of information
validly covered by executive privilege. As discussed above, the Legislature can still legislate on
graft and corruption even without the information covered by the three (3) questions subject of
the petition.
Corollarily, respondent Committees justify their rejection of petitioner’s claim of executive
privilege on the ground that there is no privilege when the information sought might involve a
crime or illegal activity, despite the absence of an administrative or judicial determination to
that effect. Significantly, however, in Nixon v. Sirica,52 the showing required to overcome the
presumption favoring confidentiality turned, not on the nature of the presidential conduct that
the subpoenaed material might reveal, but, instead, on the nature and appropriateness of
the function in the performance of which the material was sought, and the degree to
which the material was necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign
Activities v. Nixon does not apply to the case at bar because, unlike in the said case, no
impeachment proceeding has been initiated at present. The Court is not persuaded. While it is
true that no impeachment proceeding has been initiated, however, complaints relating to the
NBN Project have already been filed against President Arroyo and other personalities before the
Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of
government are the bodies equipped and mandated by the Constitution and our laws to
determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who
should be prosecuted and penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of
evidence essential to arrive at accurate factual findings to which to apply the law. Hence,
Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides
that "technical rules of evidence applicable to judicial proceedings which do not affect
substantive rights need not be observed by the Committee." Court rules which prohibit leading,
hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do
not apply to a legislative inquiry. Every person, from the highest public official to the most
ordinary citizen, has the right to be presumed innocent until proven guilty in proper proceedings
by a competent court or body.
IV
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the
contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not
violate the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in
accordance with their internal Rules; (4) they did not violate the requirement under Article VI,
Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of
the contempt order is not arbitrary or precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed in the preceding
pages, we see no reason to discuss it once again.
Respondent Committees’ second argument rests on the view that the ruling in Senate v. Ermita,
requiring invitations or subpoenas to contain the "possible needed statute which prompted the
need for the inquiry" along with the "usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof" is not provided for by the Constitution and is merely an
obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these
requirements.
An unconstrained congressional investigative power, like an unchecked Executive, generates its
own abuses. Consequently, claims that the investigative power of Congress has been abused
(or has the potential for abuse) have been raised many times.53 Constant exposure to
congressional subpoena takes its toll on the ability of the Executive to function effectively. The
requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly limit
Congress’ power. The legislative inquiry must be confined to permissible areas and thus,
prevent the "roving commissions" referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise,
witnesses have their constitutional right to due process. They should be adequately informed
what matters are to be covered by the inquiry. It will also allow them to prepare the pertinent
information and documents. To our mind, these requirements concede too little political costs or
burdens on the part of Congress when viewed vis-à-vis the immensity of its power of inquiry.
The logic of these requirements is well articulated in the study conducted by William P.
Marshall,55 to wit:
A second concern that might be addressed is that the current system allows
committees to continually investigate the Executive without constraint. One process
solution addressing this concern is to require each investigation be tied to a
clearly stated purpose. At present, the charters of some congressional committees
are so broad that virtually any matter involving the Executive can be construed to fall
within their province. Accordingly, investigations can proceed without articulation of
specific need or purpose. A requirement for a more precise charge in order to begin
an inquiry should immediately work to limit the initial scope of the investigation and
should also serve to contain the investigation once it is instituted. Additionally, to the
extent clear statements of rules cause legislatures to pause and seriously
consider the constitutional implications of proposed courses of action in other
 areas, they would serve that goal in the context of congressional investigations
as well.
The key to this reform is in its details. A system that allows a standing
committee to simply articulate its reasons to investigate pro forma does no
more than imposes minimal drafting burdens. Rather, the system must be
designed in a manner that imposes actual burdens on the committee to
articulate its need for investigation and allows for meaningful debate about the
merits of proceeding with the investigation.(Emphasis supplied)
Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable
demand that should have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific
reference to any pending Senate bill. It did not also inform petitioner of the questions to be
asked. As it were, the subpoena merely commanded him to "testify on what he knows relative to
the subject matter under inquiry."
Anent the third argument, respondent Committees contend that their Rules of Procedure
Governing Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it
is true that this Court must refrain from reviewing the internal processes of Congress, as a co-
equal branch of government, however, when a constitutional requirement exists, the Court has
the duty to look into Congress’ compliance therewith. We cannot turn a blind eye to possible
violations of the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo
v. De Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of expression, all deny to the courts
the power to inquire into allegations that, in enacting a law, a House of Congress
failed to comply with its own rules, in the absence of showing that there was a
violation of a constitutional provision or the rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution
empowers each House to determine its rules of proceedings. It may not by its rules
ignore constitutional restraints or violate fundamental rights, and there should
be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained."
In the present case, the Court’s exercise of its power of judicial review is warranted because
there appears to be a clear abuse of the power of contempt on the part of respondent
Committees. Section 18 of the Rules provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt
any witness before it who disobey any order of the Committee or refuses to be sworn
or to testify or to answer proper questions by the Committee or any of its
members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt
order because during the deliberation of the three (3) respondent Committees, only seven (7)
Senators were present. This number could hardly fulfill the majority requirement needed by
respondent Committee on Accountability of Public Officers and Investigations which has a
membership of seventeen (17) Senators and respondent Committee on National Defense and
Security which has a membership of eighteen (18) Senators. With respect to
respondent Committee on Trade and Commerce which has a membership of nine (9) Senators,
only three (3) members were present.57 These facts prompted us to quote in the Decision the
exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the
former raised the issue of lack of the required majority to deliberate and vote on the contempt
order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator
Francis Pangilinan stated that any defect in the committee voting had been cured because two-
thirds of the Senators effectively signed for the Senate in plenary session. 58
Obviously the deliberation of the respondent Committees that led to the issuance of the
contempt order is flawed. Instead of being submitted to a full debate by all the members of the
respondent Committees, the contempt order was prepared and thereafter presented to the other
members for signing. As a result, the contempt order which was issued on January 30, 2008
was not a faithful representation of the proceedings that took place on said date. Records clearly
show that not all of those who signed the contempt order were present during the January 30,
2008 deliberation when the matter was taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of person appearing in or affected by such inquiries shall
be respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the witness’ settled
expectation. If the limitations are not observed, the witness’ settled expectation is shattered.
Here, how could there be a majority vote when the members in attendance are not enough to
arrive at such majority? Petitioner has the right to expect that he can be cited in contempt only
through a majority vote in a proceeding in which the matter has been fully deliberated upon.
There is a greater measure of protection for the witness when the concerns and objections of the
members are fully articulated in such proceeding. We do not believe that respondent
Committees have the discretion to set aside their rules anytime they wish. This is especially true
here where what is involved is the contempt power. It must be stressed that the Rules are not
promulgated for their benefit. More than anybody else, it is the witness who has the highest
stake in the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent Committees’ fourth
argument. Respondent Committees argue that the Senate does not have to publish its Rules
because the same was published in 1995 and in 2006. Further, they claim that the Senate is a
continuing body; thus, it is not required to republish the Rules, unless the same is repealed or
amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing", as it is not
dissolved as an entity with each national election or change in the composition of its members.
However, in the conduct of its day-to-day business the Senate of each Congress acts separately
and independently of the Senate of the Congress before it. The Rules of the Senate itself
confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next
session in the same status.
All pending matters and proceedings shall terminate upon the expiration of one
(1) Congress, but may be taken by the succeeding Congress as if present for the first
time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and
even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional on the
Senate of the succeeding Congress to take up such unfinished matters, not in the same status,
but as if presented for the first time. The logic and practicality of such a rule is readily apparent
considering that the Senate of the succeeding Congress (which will typically have a different
composition as that of the previous Congress) should not be bound by the acts and deliberations
of the Senate of which they had no part. If the Senate is a continuing body even with respect to
the conduct of its business, then pending matters will not be deemed terminated with the
expiration of one Congress but will, as a matter of course, continue into the next Congress with
the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the
conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate’s main
rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion which should be presented at
least one day before its consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain
in force until they are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the
Senate after an election and the possibility of the amendment or revision of the Rules at the start
of each session in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be valid
from the date of their adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general circulation." 59 The latter does
not explicitly provide for the continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would continue into the next Congress. The
Senate of the next Congress may easily adopt different rules for its legislative inquiries which
come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted
in accordance with the duly published rules of procedure is categorical. It is incumbent upon
the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make
the published rules clearly state that the same shall be effective in subsequent Congresses or
until they are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its
main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or
proceedings conducted pursuant to the subject Rules are null and void. Only those that result in
violation of the rights of witnesses should be considered null and void, considering that the
rationale for the publication is to protect the rights of witnesses as expressed in Section 21,
Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid
and effective.
Respondent Committees’ last argument is that their issuance of the contempt order is not
precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in their
argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion
of respondent Committees, petitioner did not assume that they no longer had any other
questions for him. He repeatedly manifested his willingness to attend subsequent hearings and
respond to new matters. His only request was that he be furnished a copy of the new questions
in advance to enable him to adequately prepare as a resource person. He did not attend the
November 20, 2007 hearing because Executive Secretary Ermita requested respondent
Committees to dispense with his testimony on the ground of executive privilege. Note that
petitioner is an executive official under the direct control and supervision of the Chief
Executive. Why punish petitioner for contempt when he was merely directed by his superior?
Besides, save for the three (3) questions, he was very cooperative during the September 26,
2007 hearing.
On the part of respondent Committees, this Court observes their haste and impatience. Instead
of ruling on Executive Secretary Ermita’s claim of executive privilege, they curtly dismissed it as
unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their
ruling and given him time to decide whether to accede or file a motion for reconsideration. After
all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of
government. He is an alter ego of the President. The same haste and impatience marked the
issuance of the contempt order, despite the absence of the majority of the members of the
respondent Committees, and their subsequent disregard of petitioner’s motion for
reconsideration alleging the pendency of his petition for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are
political branches of government. In a free and democratic society, the interests of these
branches inevitably clash, but each must treat the other with official courtesy and respect. This
Court wholeheartedly concurs with the proposition that it is imperative for the continued health of
our democratic institutions that we preserve the constitutionally mandated checks and balances
among the different branches of government.
In the present case, it is respondent Committees’ contention that their determination on the
validity of executive privilege should be binding on the Executive and the Courts. It is their
assertion that their internal procedures and deliberations cannot be inquired into by this Court
supposedly in accordance with the principle of respect between co-equal branches of
government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the
Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It
moves this Court to wonder: In respondent Committees’ paradigm of checks and balances, what
are the checks to the Legislature’s all-encompassing, awesome power of investigation? It is a
power, like any other, that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees’ well-intentioned efforts to ferret out
corruption, even in the highest echelons of government, such lofty intentions do not validate or
accord to Congress powers denied to it by the Constitution and granted instead to the other
branches of government.
There is no question that any story of government malfeasance deserves an inquiry into its
veracity. As respondent Committees contend, this is founded on the constitutional command of
transparency and public accountability. The recent clamor for a "search for truth" by the general
public, the religious community and the academe is an indication of a concerned citizenry, a
nation that demands an accounting of an entrusted power. However, the best venue for this
noble undertaking is not in the political branches of government. The customary partisanship
and the absence of generally accepted rules on evidence are too great an obstacle in arriving at
the truth or achieving justice that meets the test of the constitutional guarantee of due process of
law. We believe the people deserve a more exacting "search for truth" than the process here in
question, if that is its objective.

WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is

hereby DENIED.

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales,

Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Brion, JJ., concur.
 EN BANC JPEPA, RICARDO V. PARAS, in his capacity as Chief State
Counsel of the Department of Justice (DOJ) and lead negotiator
for Dispute Avoidance and Settlement of the JPEPA, ADONIS
SULIT, in his capacity as lead negotiator for the General
AKBAYAN CITIZENS ACTION PARTY (AKBAYAN), G.R. No. 170516 and Final Provisions of the JPEPA, EDUARDO R. ERMITA, in
PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA his capacity as Executive Secretary, and ALBERTO ROMULO,
KANAYUNAN (PKSK), ALLIANCE OF PROGRESSIVE LABOR in his capacity as Secretary of the DFA,* Promulgated:
(APL), VICENTE A. FABE, ANGELITO R. MENDOZA, MANUEL P.
QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES, CONG. Present: Respondents.
LORENZO R. TANADA III, CONG. MARIO JOYO AGUJA, CONG.
LORETA ANN P. ROSALES, CONG. ANA THERESIA PUNO, C.J.,
HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL JOEL J.
VILLANUEVA, QUISUMBING, July 16, 2008
Petitioners, YNARES-SANTIAGO,

CARPIO,
- versus AUSTRIA-MARTINEZ,

CORONA,
THOMAS G. AQUINO, in his capacity as Undersecretary of the CARPIO MORALES,
Department of Trade and Industry (DTI) and Chairman and
Chief Delegate of the Philippine Coordinating Committee (PCC)
AZCUNA,
for the Japan-Philippines Economic Partnership Agreement,
EDSEL T. CUSTODIO, in his capacity as Undersecretary of the
TINGA,
Department of Foreign Affairs (DFA) and Co-Chair of the PCC
for the JPEPA, EDGARDO ABON, in his capacity as Chairman
of the Tariff Commission and lead negotiator for Competition CHICO-NAZARIO,
Policy and Emergency Measures of the JPEPA, MARGARITA
SONGCO, in her capacity as Assistant Director-General of the VELASCO, JR.,
National Economic Development Authority (NEDA) and lead
negotiator for Trade in Services and Cooperation of the JPEPA, NACHURA,
MALOU MONTERO, in her capacity as Foreign Service Officer I,
Office of the Undersecretary for International Economic REYES,
Relations of the DFA and lead negotiator for the General and
Final Provisions of the JPEPA, ERLINDA ARCELLANA, in her LEONARDO-DE CASTRO, &
capacity as Director of the Board of Investments and lead
negotiator for Trade in Goods (General Rules) of the JPEPA, BRION, JJ.
RAQUEL ECHAGUE, in her capacity as lead negotiator for
Rules of Origin of the JPEPA, GALLANT SORIANO, in his
official capacity as Deputy Commissioner of the Bureau of
Customs and lead negotiator for Customs Procedures and
Paperless Trading of the JPEPA, MA. LUISA GIGETTE
IMPERIAL, in her capacity as Director of the Bureau of Local
Employment of the Department of Labor and Employment
(DOLE) and lead negotiator for Movement of Natural Persons of
the JPEPA, PASCUAL DE GUZMAN, in his capacity as Director
of the Board of Investments and lead negotiator for Investment
of the JPEPA, JESUS MOTOOMULL, in his capacity as Director
for the Bureau of Product Standards of the DTI and lead
negotiator for Mutual Recognition of the JPEPA, LOUIE
CALVARIO, in his capacity as lead negotiator for Intellectual
Property of the JPEPA, ELMER H. DORADO, in his capacity as
Officer-in-Charge of the Government Procurement Policy Board
Technical Support Office, the government agency that is
leading the negotiations on Government Procurement of the

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Petitioners non-government organizations, Congresspersons, citizens and taxpayers seek via
the present petition for mandamus and prohibition to obtain from respondents the full text of the
Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine and
Japanese offers submitted during the negotiation process and all pertinent attachments and
annexes thereto.
Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January
25, 2005 House Resolution No. 551 calling for an inquiry into the bilateral trade agreements then
being negotiated by the Philippine government, particularly the JPEPA. The Resolution became
the basis of an inquiry subsequently conducted by the House Special Committee on
Globalization (the House Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent Undersecretary
Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating Committee created
under Executive Order No. 213 (CREATION OF A PHILIPPINE COORDINATING COMMITTEE
TO STUDY THE FEASIBILITY OF THE JAPAN-PHILIPPINES ECONOMIC PARTNERSHIP
AGREEMENT)[1] to study and negotiate the proposed JPEPA, and to furnish the Committee with
a copy of the latest draft of the JPEPA. Usec. Aquino did not heed the request, however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by letter
of November 2, 2005, replied that the Congressman shall be provided with a copy thereof once
the negotiations are completed and as soon as a thorough legal review of the proposed
agreement has been conducted.
In a separate move, the House Committee, through Congressman Herminio G. Teves,
requested Executive Secretary Eduardo Ermita to furnish it with all documents on the subject
including the latest draft of the proposed agreement, the requests and offers etc. [2] Acting on the
request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of]
F[oreign] A[ffairs] explains that the Committees request to be furnished
all documents on the JPEPA may be difficult to accomplish at this
time, since the proposed Agreement has been a work in progress for
about three years. A copy of the draft JPEPA will however be forwarded to
the Committee as soon as the text thereof is settled and complete.
(Emphasis supplied)
Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff
Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the
JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission
does not have a copy of the documents being requested, albeit he was certain
that Usec. Aquino would provide the Congressman with a copy once the negotiation is
completed. And by letter of July 18, 2005, NEDA Assistant Director-General Margarita
R. Songco informed the Congressman that his request addressed to Director-General Neri had
been forwarded to Usec. Aquino who would be in the best position to respond to the request.
In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a
subpoena for the most recent draft of the JPEPA, but the same was not pursued because by
Committee Chairman Congressman Teves information, then House Speaker Jose
de Venecia had requested him to hold in abeyance the issuance of the subpoena until the
President gives her consent to the disclosure of the documents. [3]
Amid speculations that the JPEPA might be signed by the Philippine government within
December 2005, the present petition was filed on December 9, 2005.[4] The agreement was to
be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese
Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the President endorsed it
to the Senate for its concurrence pursuant to Article VII, Section 21 of the Constitution. To date,
the JPEPA is still being deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by the
Philippines with another country in the event the Senate grants its consent to it, covers a broad
range of topics which respondents enumerate as follows: trade in goods, rules of origin, customs
procedures, paperless trading, trade in services, investment, intellectual property rights,
government procurement, movement of natural persons, cooperation, competition policy, mutual
recognition, dispute avoidance and settlement, improvement of the business environment, and
general and final provisions.[5]
While the final text of the JPEPA has now been made accessible to the public since September
11, 2006,[6] respondents do not dispute that, at the time the petition was filed up to the filing of
petitioners Reply when the JPEPA was still being negotiated the initial drafts thereof were kept
from public view.
Before delving on the substantive grounds relied upon by petitioners in support of the petition,
the Court finds it necessary to first resolve some material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it must be instituted
by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which
unlawfully excludes said party from the enjoyment of a legal right. [7] Respondents deny that
petitioners have such standing to sue. [I]n the interest of a speedy and definitive resolution of the
substantive issues raised, however, respondents consider it sufficient to cite a portion of the
ruling in Pimentel v. Office of Executive Secretary[8]which emphasizes the need for a personal
stake in the outcome of the controversy on questions of standing.
In a petition anchored upon the right of the people to information on matters of public concern,
which is a public right by its very nature, petitioners need not show that they have any legal or
special interest in the result, it being sufficient to show that they are citizens and, therefore, part
of the general public which possesses the right.[9] As the present petition is anchored on the right
to information and petitioners are all suing in their capacity as citizens and groups of citizens
including petitioners-members of the House of Representatives who additionally are suing in
their capacity as such, the standing of petitioners to file the present suit is grounded in
jurisprudence.
Mootness
Considering, however, that [t]he principal relief petitioners are praying for is the disclosure of the
contents of the JPEPA prior to its finalization between the two States parties,[10] public disclosure
of the text of the JPEPA after its signing by the President, during the pendency of the present
petition, has been largely rendered moot and academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now stands
cannot yet be considered as final and binding between the two States. Article 164 of the JPEPA
itself provides that the agreement does not take effect immediately upon the signing thereof. For
it must still go through the procedures required by the laws of each country for its entry into
force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on
which the Governments of the Parties exchange diplomatic notes informing
each other that their respective legal procedures necessary for entry
into force of this Agreement have been completed. It shall remain in
force unless terminated as provided for in Article 165.[11] (Emphasis
supplied)
President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of the legal
procedures which must be met prior to the agreements entry into force.
The text of the JPEPA having then been made accessible to the public, the petition has become
moot and academic to the extent that it seeks the disclosure of the full text thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not
merely the text of the JPEPA, but also the Philippine and Japanese offers in the course of the
negotiations.[12]
A discussion of the substantive issues, insofar as they impinge on petitioners demand for access
to the Philippine and Japanese offers, is thus in order.

Grounds relied upon by petitioners
Petitioners assert, first, that the refusal of the government to disclose the documents bearing on
the JPEPA negotiations violates their right to information
on matters of publicconcern[13] and contravenes other constitutional provisions on transparency,
such as that on the policy of full public disclosure of all transactions involving public
interest.[14]Second, they contend that non-disclosure of the same documents undermines their
right to effective and reasonable participation in all levels of social, political, and economic
decision-making.[15] Lastly, they proffer that divulging the contents of the JPEPA only after the
agreement has been concluded will effectively make the Senate into a mere rubber stamp of the
Executive, in violation of the principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the
JPEPA are, except for the last, the same as those cited for the disclosure of the Philippine and
Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of respondents claim of
privilege shall be discussed. The last, being purely speculatory given that the Senate is still
deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the threshold
requirement that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil
Service Commission:
In determining whether or not a particular information is of public concern
there is no rigid test which can be applied. Public concern like public interest
is a term that eludes exact definition.Both terms embrace a broad spectrum
of subjects which the public may want to know, either because these directly
affect their lives, or simply because such matters naturally arouse the
interest of an ordinary citizen. In the final analysis, it is for the courts to
determine on a case by case basis whether the matter at issue is of interest
or importance, as it relates to or affects the public.[16] (Underscoring
supplied)
From the nature of the JPEPA as an international trade agreement, it is evident that the
Philippine and Japanese offers submitted during the negotiations towards its execution are
matters of public concern. This, respondents do not dispute. They only claim that diplomatic
negotiations are covered by the doctrine of executive privilege, thus constituting an exception
to the right to information and the policy of full public disclosure.
Respondents claim of privilege
It is well-established in jurisprudence that neither the right to information nor the policy of full
public disclosure is absolute, there being matters which, albeit of public concern or public
interest, are recognized as privileged in nature. The types of information which may be
considered privileged have been elucidated in Almonte v. Vasquez,[17] Chavez v.
PCGG,[18] Chavez v. Public Estates Authority,[19] and most recently in Senate v. Ermita[20] where
the Court reaffirmed the validity of the doctrine of executive privilege in this jurisdiction and dwelt
on its scope.
Whether a claim of executive privilege is valid depends on the ground invoked to justify it and
the context in which it is made.[21] In the present case, the ground for respondents claim of
privilege is set forth in their Comment, viz:
x x x The categories of information that may be considered privileged
includes matters of diplomatic character and under negotiation and
review. In this case, the privileged character of the diplomatic
negotiations has been categorically invoked and clearly explained by
respondents particularly respondent DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject
to negotiations and legal review by the parties fall under the exceptions to
the right of access to information on matters of public concern and policy of
public disclosure. They come within the coverage of executive privilege. At
the time when the Committee was requesting for copies of such documents,
the negotiations were ongoing as they are still now and the text of the
proposed JPEPA is still uncertain and subject to change. Considering the
status and nature of such documents then and now, these are evidently
covered by executive privilege consistent with existing legal provisions and
settled jurisprudence.
Practical and strategic considerations likewise counsel against the
disclosure of the rolling texts which may undergo radical change or portions
of which may be totally abandoned. Furthermore, the negotiations of the
representatives of the Philippines as well as of Japan must be allowed
to explore alternatives in the course of the negotiations in the same
manner as judicial deliberations and working drafts of opinions are
accorded strict confidentiality.[22] (Emphasis and underscoring supplied)

The ground relied upon by respondents is thus not simply that the information sought involves a
diplomatic matter, but that it pertains to diplomatic negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In
discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that
information on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest. [23] Even
earlier, the same privilege was upheld in Peoples Movement for Press Freedom (PMPF)
v. Manglapus[24] wherein the Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents
representatives on the state of the then on-going negotiations of the RP-US Military Bases
Agreement.[25] The Court denied the petition, stressing that secrecy of negotiations with
foreign countries is not violative of the constitutional provisions of freedom of speech or of the
press nor of the freedom of access to information. The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and
expedition of decision which are inherent in executive action. Another
essential characteristic of diplomacy is its confidential
nature. Although much has been said about open and secret diplomacy,
with disparagement of the latter, Secretaries of State Hughes
and Stimson have clearly analyzed and justified the practice. In the words of
Mr. Stimson:
A complicated negotiation . . . cannot be carried
through without many, many private talks and
discussion, man to man; many tentative
suggestions and proposals.Delegates from other
countries come and tell you in confidence of their
troubles at home and of their differences with other
countries and with other delegates; they tell you
of what they would do under certain circumstances
and would not do under other circumstances. . . If
these reports . . . should become public . . . who
would ever trust American Delegations in another
conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284.).
xxxx
There is frequent criticism of the secrecy in which negotiation with
foreign powers on nearly all subjects is concerned. This, it is claimed,
is incompatible with the substance of democracy. As expressed by one
writer, It can be said that there is no more rigid system of silence anywhere
in the world. (E.J. Young, Looking Behind the Censorship, J.
B. Lippincott Co., 1938) President Wilson in starting his efforts for the
conclusion of the World War declared that we must have open covenants,
openly arrived at. He quickly abandoned his thought.
No one who has studied the question believes that such a method of
publicity is possible. In the moment that negotiations are started,
pressure groups attempt to muscle in. An ill-timed speech by one of
the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to widespread
propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for
discussion before it is approved. (The New American Government and
Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring
supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright
Export Corp.[26] that the President is the sole organ of the nation in its negotiations with foreign
countries, viz:
x x x In this vast external realm, with its important, complicated, delicate and
manifold problems, the President alone has the power to speak or listen as
a representative of the nation. He makestreaties with the advice and
consent of the Senate; but he alone negotiates. Into the field of negotiation
the Senate cannot intrude; and Congress itself is powerless to invade
it. As Marshall said in his great argument of March 7, 1800, in the House of
Representatives, The President is the sole organ of the nation in its
external relations, and its sole representative with foreign
nations. Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring in
the original)
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the
JPEPA may not be kept perpetually confidential since there should be ample opportunity for
discussion before [a treaty] is approved the offers exchanged by the parties during the
negotiations continue to be privileged even after the JPEPA is published. It is reasonable to
conclude that the Japanese representatives submitted their offers with the understanding
that historic confidentiality[27] would govern the same. Disclosing these offers could impair the
ability of the Philippines to deal not only with Japan but with other foreign governments in
future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would
discourage future Philippine representatives from frankly expressing their views during
negotiations. While, on first impression, it appears wise to deter Philippine representatives from
entering into compromises, it bears noting that treaty negotiations, or any negotiation for that
matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be
willing to grant concessions in an area of lesser importance in order to obtain more
favorable terms in an area of greater national interest. Apropos are the following
observations of Benjamin S. Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in
agreement that publicity leads to grandstanding, tends to freeze
negotiating positions, and inhibits the give-and-take essential to
successful negotiation. As Sissela Bok points out, if negotiators have
more to gain from being approved by their own sides than by making a
reasoned agreement with competitors or adversaries, then they are inclined
to 'play to the gallery . . .'' In fact, the public reaction may leave them little
option. It would be a brave, or foolish, Arab leader who expressed publicly
a willingness for peace with Israel that did not involve the return of the entire
West Bank, or Israeli leader who stated publicly a willingness to remove
Israel's existing settlements from Judea and Samaria in return for
peace.[28] (Emphasis supplied)
Indeed, by hampering the ability of our representatives to compromise, we may be
jeopardizing higher national goals for the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA
negotiations constituting no exception. It bears emphasis, however, that such privilege is
only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged
does not mean that it will be considered privileged in all instances.Only after a consideration of
the context in which the claim is made may it be determined if there is a public interest that calls
for the disclosure of the desired information, strong enough to overcome its traditionally
privileged status.
Whether petitioners have established the presence of such a public interest shall be discussed
later. For now, the Court shall first pass upon the arguments raised by petitioners against the
application of PMPF v. Manglapus to the present case.
Arguments proffered by petitioners against the application of PMPF v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there
being substantial factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of the treaty
involved. They stress that PMPF v. Manglapus involved the Military Bases Agreement which
necessarily pertained to matters affecting national security; whereas the present case
involves an economic treaty that seeks to regulate trade and commerce between
the Philippines and Japan, matters which, unlike those covered by the Military Bases
Agreement, are not so vital to national security to disallow their disclosure.
Petitioners argument betrays a faulty assumption that information, to be considered privileged,
must involve national security. The recognition in Senate v. Ermita[29] that executive privilege has
encompassed claims of varying kinds, such that it may even be more accurate to speak of
executive privileges, cautions against such generalization.
While there certainly are privileges grounded on the necessity of safeguarding national security
such as those involving military secrets, not all are founded thereon. One example is the
informers privilege, or the privilege of the Government not to disclose the identity of a person
or persons who furnish information of violations of law to officers charged with the enforcement
of that law.[30] The suspect involved need not be so notorious as to be a threat to national
security for this privilege to apply in any given instance.Otherwise, the privilege would be
inapplicable in all but the most high-profile cases, in which case not only would this be contrary
to long-standing practice. It would also be highly prejudicial to law enforcement efforts in
general.
Also illustrative is the privilege accorded to presidential communications, which are
presumed privileged without distinguishing between those which involve matters of national
security and those which do not, the rationale for the privilege being that
x x x [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-makingof those tasked to exercise
Presidential, Legislative and Judicial power. x x x[31] (Emphasis supplied)
In the same way that the privilege for judicial deliberations does not depend on the nature of the
case deliberated upon, so presidential communications are privileged whether they involve
matters of national security.
It bears emphasis, however, that the privilege accorded to presidential communications is not
absolute, one significant qualification being that the Executive cannot, any more than the other
branches of government, invoke a general confidentiality privilege to shield its officials and
employees from investigations by the proper governmental institutions into possible criminal
wrongdoing. [32] This qualification applies whether the privilege is being invoked in the context of
a judicial trial or a congressional investigation conducted in aid of legislation. [33]
Closely related to the presidential communications privilege is the deliberative process
privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v.
Sears, Roebuck & Co,[34] deliberative process covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. Notably, the privileged status of such documents
rests, not on the need to protect national security but, on the obvious realization that officials
will not communicate candidly among themselves if each remark is a potential item of discovery
and front page news, the objective of the privilege being to enhance the quality of agency
decisions. [35]
The diplomatic negotiations privilege bears a close resemblance to the deliberative process
and presidential communications privilege. It may be readily perceived that the rationale for the
confidential character of diplomatic negotiations, deliberative process, and presidential
communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the privilege for diplomatic
negotiations is meant to encourage a frank exchange of exploratory ideas between the
negotiating parties by shielding such negotiations from public view. Similar to the privilege for
presidential communications, the diplomatic negotiations privilege seeks, through the same
means, to protect the independence in decision-making of the President, particularly in its
capacity as the sole organ of the nation in its external relations, and its sole representative with
foreign nations. And, as with the deliberative process privilege, the privilege accorded to
diplomatic negotiations arises, not on account of the content of the information per se, but
because the information is part of a process of deliberation which, in pursuit of the public
interest, must be presumed confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v.
Department of the Treasury[37] enlightens on the close relation between diplomatic negotiations
and deliberative process privileges. The plaintiffs in that case sought access to notes taken by a
member of the U.S. negotiating team during the U.S.-French taxtreaty negotiations. Among the
points noted therein were the issues to be discussed, positions which the French
and U.S. teams took on some points, the draft language agreed on, and articles which needed to
be amended. Upholding the confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true
example of a deliberative process. Much give-and-take must occur for
the countries to reach an accord. A description of the negotiations at any
one point would not provide an onlooker a summary of the discussions
which could later be relied on as law. It would not be working law as the
points discussed and positions agreed on would be subject to change at any
date until the treaty was signed by the President and ratified by the Senate.
The policies behind the deliberative process privilege support non-
disclosure. Much harm could accrue to the negotiations process if
these notes were revealed. Exposure of the pre-agreement positions of
the French negotiators might well offend foreign governments and
would lead to less candor by the U. S. in recording the events of the
negotiations process. As several months pass in between negotiations,
this lack of record could hinder readily the U. S. negotiating team. Further
disclosure would reveal prematurely adopted policies. If these policies
should be changed, public confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be
comparable to releasing drafts of the treaty, particularly when the
notes state the tentative provisions and language agreed on. As drafts
of regulations typically are protected by the deliberative process
privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-
705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the
same protection. (Emphasis and underscoring supplied)
Clearly, the privilege accorded to diplomatic negotiations follows as a logical
consequence from the privileged character of the deliberative process.
The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v.
Office of U.S. Trade Representative[38] where the plaintiffs sought information relating to the
just-completed negotiation of a United States-Chile Free Trade Agreement the same district
court, this time under Judge Friedman, consciously refrained from applying the doctrine
in Fulbright and ordered the disclosure of the information being sought.
Since the factual milieu in CIEL seemed to call for the straight application of the doctrine
in Fulbright, a discussion of why the district court did not apply the same would help illumine
this Courts own reasons for deciding the present case along the lines of Fulbright.
In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding
information, namely, Exemption 5 of the Freedom of Information Act (FOIA).[39] In order to
qualify for protection under Exemption 5, a document must satisfy two conditions: (1) it must be
either inter-agency or intra-agency in nature, and (2) it must be bothpre-decisional and part
of the agency's deliberative or decision-making process.[40]
Judge Friedman, in CIEL, himself cognizant of a superficial similarity of context between the
two cases, based his decision on what he perceived to be a significant distinction: he found the
negotiators notes that were sought in Fulbright to be clearly internal, whereas the documents
being sought in CIEL were those produced by or exchanged with an outside party, i.e.
Chile. The documents subject of Fulbright being clearly internal in character, the question of
disclosure therein turned not on the threshold requirement of Exemption 5 that the document
be inter-agency, but on whether the documents were part of the agency's pre-decisional
deliberative process. On this basis, Judge Friedman found that Judge Green's discussion
[in Fulbright] of the harm that could result from disclosure therefore is irrelevant, since the
documents at issue [in CIEL] are not inter-agency, and the Court does not reach the
question of deliberative process. (Emphasis supplied)
In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant
in light of its distinct factual setting. Whether this conclusion was valid a question on which this
Court would not pass the ruling in Fulbright that [n]egotiations between two countries to draft a
treaty represent a true example of a deliberative process was left standing, since the CIEL court
explicitly stated that it did not reach the question of deliberative process.
 Going back to the present case, the Court recognizes that the information sought by
petitioners includes documents produced and communicated by a party external to the
Philippine government, namely, the Japanese representatives in the JPEPA negotiations, and
to that extent this case is closer to the factual circumstances of CIEL than those ofFulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle
articulated in Fulbright that the public policy underlying the deliberative process privilege
requires that diplomatic negotiations should also be accorded privileged status, even if the
documents subject of the present case cannot be described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure of information based on
its finding that the first requirement of FOIA Exemption 5 that the documents be inter-agency
was not met. In determining whether the government may validly refuse disclosure of the
exchanges between the U.S. and Chile, it necessarily had to deal with this requirement, it being
laid down by a statute binding on them.
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory
requirement similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when
assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on the
issue of whether the privilege being claimed is indeed supported by public policy, without
having to consider as the CIEL court did if these negotiations fulfill a formal requirement of
being inter-agency. Important though that requirement may be in the context of domestic
negotiations, it need not be accorded the same significance when dealing with international
negotiations.
There being a public policy supporting a privilege for diplomatic negotiations for the reasons
explained above, the Court sees no reason to modify, much less abandon, the doctrine
in PMPF v. Manglapus.
A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the
present case is the fact that the petitioners therein consisted entirely of members of the mass
media, while petitioners in the present case include members of the House of Representatives
who invoke their right to information not just as citizens but as members of Congress.
Petitioners thus conclude that the present case involves the right of members of Congress to
demand information on negotiations of international trade agreements from the Executive
branch, a matter which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass
media, it would be incorrect to claim that the doctrine laid down therein has no bearing on a
controversy such as the present, where the demand for information has come from members of
Congress, not only from private citizens.
The privileged character accorded to diplomatic negotiations does not ipso facto lose all
force and effect simply because the same privilege is now being claimed under different
circumstances. The probability of the claim succeeding in the new context might differ, but to
say that the privilege, as such, has no validity at all in that context is another matter altogether.
The Courts statement in Senate v. Ermita that presidential refusals to furnish information may be
actuated by any of at least three distinct kinds of considerations [state secrets privilege,
informers privilege, and a generic privilege for internal deliberations], and may be asserted, with
differing degrees of success, in the context of either judicial or legislative
investigations,[41] implies that a privilege, once recognized, may be invoked under different
procedural settings. That this principle holds true particularly with respect to diplomatic
negotiations may be inferred from PMPF v. Manglapus itself, where the Court held that it is the
President alone who negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only against
citizens demands for information, but also in the context of legislative investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic
negotiations cannot be considered irrelevant in resolving the present case, the contextual
differences between the two cases notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in this
case, petitioners proffer that the socio-political and historical contexts of the two cases are
worlds apart. They claim that the constitutional traditions and concepts prevailing at the
time PMPF v. Manglapus came about, particularly the school of thought that the requirements of
foreign policy and the ideals of transparency were incompatible with each other or the
incompatibility hypothesis, while valid when international relations were still governed by power,
politics and wars, are no longer so in this age of international cooperation.[42]
Without delving into petitioners assertions respecting the incompatibility hypothesis, the Court
notes that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty
negotiations as such than on a particular socio-political school of thought. If petitioners are
suggesting that the nature of treaty negotiations have so changed that [a]n ill-timed speech by
one of the parties or a frank declaration of the concession which are exacted or offered on both
sides no longer lead[s] to widespread propaganda to block the negotiations, or that parties in
treaty negotiations no longer expect their communications to be governed by historic
confidentiality, the burden is on them to substantiate the same. This petitioners failed to
discharge.

Whether the privilege applies only at certain stages of the negotiation process
Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a reasonable amount
of confidentiality so as not to jeopardize the diplomatic process. They argue, however, that the
same is privileged only at certain stages of the negotiating process, after which such information
must necessarily be revealed to the public.[43] They add that the duty to disclose this information
was vested in the government when the negotiations moved from the formulation and
exploratory stage to the firming up of definite propositions or official recommendations,
citing Chavez v. PCGG[44] and Chavez v. PEA.[45]
The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both
that case and Chavez v. PCGG with regard to the duty to disclose definite propositions of the
government does not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official
information on on-going negotiations before a final contract. The
information, however, must constitutedefinite propositions by the
government and should not cover recognized exceptions like
privileged information, military and diplomatic secrets and similar
matters affecting national security and public order. x x x[46] (Emphasis
and underscoring supplied)
It follows from this ruling that even definite propositions of the government may not be disclosed
if they fall under recognized exceptions. The privilege for diplomatic negotiations is clearly
among the recognized exceptions, for the footnote to the immediately quoted ruling cites PMPF
v. Manglapus itself as an authority.
Whether there is sufficient public interest to overcome the claim of privilege
It being established that diplomatic negotiations enjoy a presumptive privilege against
disclosure, even against the demands of members of Congress for information, the Court shall
now determine whether petitioners have shown the existence of a public interest sufficient to
overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be taken into
account. One is the presumed public interest in favor of keeping the subject information
confidential, which is the reason for the privilege in the first place, and the other is the public
interest in favor of disclosure, the existence of which must be shown by the party asking for
information. [47]
The criteria to be employed in determining whether there is a sufficient public interest in favor of
disclosure may be gathered from cases such as U.S. v. Nixon,[48] Senate Select Committee on
Presidential Campaign Activities v. Nixon,[49] and In re Sealed Case.[50]
U.S. v. Nixon, which involved a claim of the presidential communications privilege against the
subpoena duces tecum of a district court in a criminal case, emphasized the need to balance
such claim of privilege against the constitutional duty of courts to ensure a fair administration
of criminal justice.
x x x the allowance of the privilege to withhold evidence that
is demonstrably relevant in a criminal trial would cut deeply into the
guarantee of due process of law and gravely impair the basic function
of the courts. A Presidents acknowledged need for confidentiality in
the communications of his office is general in nature, whereas
the constitutional need for production of relevant evidence in a
criminal proceeding is specific and central to the fair adjudication of a
particular criminal case in the administration of justice. Without access
to specific facts a criminal prosecution may be totally frustrated. The
Presidents broad interest in confidentiality of communications will not be
vitiated by disclosure of a limited number of conversations preliminarily
shown to have some bearing on the pending criminal cases. (Emphasis,
italics and underscoring supplied)
Similarly, Senate Select Committee v. Nixon,[51] which involved a claim of the
presidential communications privilege against the subpoena duces tecum of a Senate
committee, spoke of the need to balance such claim with the duty of Congress to perform
its legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed
to ensure that the President and those upon whom he directly relies in the
performance of his duties could continue to work under a general assurance
that their deliberations would remain confidential. So long as the
presumption that the public interest favors confidentiality can be
defeated only by a strong showing of need by another institution of
government- a showing that the responsibilities of that institution
cannot responsibly be fulfilled without access to records of the
President's deliberations- we believed in Nixon v. Sirica, and continue to
believe, that the effective functioning of the presidential office will not be
impaired. x x x
 xxxx
The sufficiency of the Committee's showing of need has come to
depend, therefore, entirely on whether the subpoenaed materials
are critical to the performance of its legislative
functions. x x x (Emphasis and underscoring supplied)
In re Sealed Case[52] involved a claim of the deliberative process and presidential
communications privileges against a subpoena duces tecum of a grand jury. On the claim of
deliberative process privilege, the court stated:
The deliberative process privilege is a qualified privilege and can
be overcome by a sufficient showing of need. This need determination
is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the
deliberative process privilege] is asserted the district court must undertake a
fresh balancing of the competing interests," taking into account factors
such as "the relevance of the evidence," "the availability of other
evidence," "the seriousness of the litigation," "the role of the
government," and the "possibility of future timidity by government
employees. x x x (Emphasis, italics and underscoring supplied)
Petitioners have failed to present the strong and sufficient showing of need referred to in the
immediately cited cases. The arguments they proffer to establish their entitlement to the subject
documents fall short of this standard.
Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA
negotiation process effectively results in the bargaining away of their economic and property
rights without their knowledge and participation, in violation of the due process clause of the
Constitution. They claim, moreover, that it is essential for the people to have access to the initial
offers exchanged during the negotiations since only through such disclosure can their
constitutional right to effectively participate in decision-making be brought to life in the context of
international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the JPEPA
negotiations is a question of fact which this Court need not resolve. Suffice it to state that
respondents had presented documents purporting to show that public consultations were
conducted on the JPEPA. Parenthetically, petitioners consider these alleged consultations as
woefully selective and inadequate.[53]
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and
Japanese representatives have not been disclosed to the public, the Court shall pass upon the
issue of whether access to the documents bearing on them is, as petitioners claim, essential to
their right to participate in decision-making.
The case for petitioners has, of course, been immensely weakened by the disclosure of the full
text of the JPEPA to the public since September 11, 2006, even as it is still being deliberated
upon by the Senate and, therefore, not yet binding on the Philippines. Were the Senate to
concur with the validity of the JPEPA at this moment, there has already been, in the words
of PMPF v. Manglapus, ample opportunity for discussion before [the treaty] is approved.
The text of the JPEPA having been published, petitioners have failed to convince this Court that
they will not be able to meaningfully exercise their right to participate in decision-making unless
the initial offers are also published.
It is of public knowledge that various non-government sectors and private citizens have already
publicly expressed their views on the JPEPA, their comments not being limited to general
observations thereon but on its specific provisions. Numerous articles and statements critical of
the JPEPA have been posted on the Internet.[54] Given these developments, there is no basis for
petitioners claim that access to the Philippine and Japanese offers is essential to the exercise of
their right to participate in decision-making.
Petitioner-members of the House of Representatives additionally anchor their claim to
have a right to the subject documents on the basis of Congress inherent power to regulate
commerce, be it domestic or international. They allege that Congress cannot meaningfully
exercise the power to regulate international trade agreements such as the JPEPA without being
given copies of the initial offers exchanged during the negotiations thereof. In the same vein,
they argue that the President cannot exclude Congress from the JPEPA negotiations since
whatever power and authority the President has to negotiate international trade agreements is
derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution
and Sections 401 and 402 of Presidential Decree No. 1464.[55]
The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate
treaties and international agreements, but the power to fix tariff rates, import and export quotas,
and other taxes. Thus it provides:
(2) The Congress may, by law, authorize the President to fix within specified
limits, and subject to such limitations and restrictions as it may impose, tariff
rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts within the framework of the national development program
of the Government.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII
the article on the Executive Department which states:
No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President,
being the sole organ of the nation in its external relations, was echoed in BAYAN v. Executive
Secretary[56] where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the
President, as head of State, is the sole organ and authority in the
external affairs of the country. In many ways, the President is the chief
architect of the nation's foreign policy; his "dominance in the field of
foreign relations is (then) conceded." Wielding vast powers and
influence, his conduct in the external affairs of the nation,
as Jefferson describes, is executive altogether.
As regards the power to enter into treaties or international
agreements, the Constitution vests the same in the President, subject
only to the concurrence of at least two thirds vote of all the members
of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic
powers granted him no less than by the fundamental law itself. Into the
field of negotiation the Senate cannot intrude, and Congress itself is
powerless to invade it. x x x (Italics in the original; emphasis and
underscoring supplied)
The same doctrine was reiterated even more recently in Pimentel v.
Secretary[57] where the Court ruled:
In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the
country's sole representative with foreign nations. As the chief architect
of foreign policy, the President acts as the country's mouthpiece with
respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-
making, the President has the sole authority to negotiate with other
states.
Nonetheless, while the President has the sole authority to negotiate
and enter into treaties, the Constitution provides a limitation to his
power by requiring the concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into by him. x x x (Emphasis
and underscoring supplied)
While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is
exercised by the President only by delegation of that body, it has long been recognized that the
power to enter into treaties is vested directly and exclusively in the President, subject only to the
concurrence of at least two-thirds of all the Members of the Senate for the validity of the
treaty. In this light, the authority of the President to enter into trade agreements with foreign
nations provided under P.D. 1464[58] may be interpreted as an acknowledgment of a power
already inherent in its office. It may not be used as basis to hold the President or its
representatives accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the Presidents power to enter into treaties is unlimited but for
the requirement of Senate concurrence, since the President must still ensure that all treaties
will substantively conform to all the relevant provisions of the Constitution.
It follows from the above discussion that Congress, while possessing vast legislative
powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides
for Senate concurrence, such pertains only to the validity of the treaty under consideration, not
to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a
whole that has been given the authority to concur as a means of checking the treaty-making
power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members
of the House of Representatives fail to present a sufficient showing of need that the information
sought is critical to the performance of the functions of Congress, functions that do not include
treaty-negotiation.
Executive
Respondents alleged failure to timely claim executive privilege
On respondents invocation of executive privilege, petitioners find the same defective, not having
been done seasonably as it was raised only in their Comment to the present petition and not
during the House Committee hearings.
 That respondents invoked the privilege for the first time only in their Comment to the
present petition does not mean that the claim of privilege should not be credited.Petitioners
position presupposes that an assertion of the privilege should have been made during the Response to the Dissenting Opinion of the Chief Justice
House Committee investigations, failing which respondents are deemed to have waived it.

When the House Committee and petitioner-Congressman Aguja requested respondents for
copies of the documents subject of this case, respondents replied that the negotiations were still
on-going and that the draft of the JPEPA would be released once the text thereof is settled and
complete. There was no intimation that the requested copies are confidential in nature by reason
of public policy. The response may not thus be deemed a claim of privilege by the standards
of Senate v. Ermita, which recognizes as claims of privilege only those which are accompanied
by precise and certain reasons for preserving the confidentiality of the information being
sought.
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to
protect our peoples right to information against any abuse of executive privilege. It is a zeal that
We fully share.
The Court, however, in its endeavor to guard against the abuse of executive privilege,
should be careful not to veer towards the opposite extreme, to the point that it would strike down
as invalid even a legitimate exercise thereof.

Respondents failure to claim the privilege during the House Committee hearings may not,
however, be construed as a waiver thereof by the Executive branch. As the immediately
preceding paragraph indicates, what respondents received from the House Committee and
petitioner-Congressman Aguja were mere requests for information. And as priorlystated, the
House Committee itself refrained from pursuing its earlier resolution to issue a
subpoena duces tecum on account of then Speaker Jose de Venecias alleged request to
Committee Chairperson Congressman Teves to hold the same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to
executive officials out of respect for their office until resort to it becomes necessary, the fact
remains that such requests are not a compulsory process. Being mere requests, they do not
strictly call for an assertion of executive privilege.
The privilege is an exemption to Congress power of inquiry.[59] So long as Congress
itself finds no cause to enforce such power, there is no strict necessity to assert the privilege. In
this light, respondents failure to invoke the privilege during the House Committee investigations
did not amount to a waiver thereof.
We respond only to the salient arguments of the Dissenting Opinion which have not
yet been sufficiently addressed above.
1. After its historical discussion on the allocation of power over international trade agreements in
the United States, the dissent concludes that it will be turning somersaults with history to
contend that the President is the sole organ for external relations in that jurisdiction. With regard
to this opinion, We make only the following observations:
There is, at least, a core meaning of the phrase sole organ of the nation in its external relations
which is not being disputed, namely, that the power to directly negotiate treaties and
international agreements is vested by our Constitution only in the Executive. Thus, the dissent
states that Congress has the power to regulate commerce with foreign nations but
does not have the power to negotiate international agreements directly.[62]

What is disputed is how this principle applies to the case at bar.

The Court observes, however, that the claim of privilege appearing in respondents Comment to
this petition fails to satisfy in full the requirement laid down in Senate v. Ermitathat the claim
should be invoked by the President or through the Executive Secretary by order of the
The dissent opines that petitioner-members of the House of Representatives, by asking for the
President.[60] Respondents claim of privilege is being sustained, however, its flaw
subject JPEPA documents, are not seeking to directly participate in the negotiations of the
notwithstanding, because of circumstances peculiar to the case.
JPEPA, hence, they cannot be prevented from gaining access to these documents.

The assertion of executive privilege by the Executive Secretary, who is one of the respondents
On the other hand, We hold that this is one occasion where the following ruling in Agan v.
herein, without him adding the phrase by order of the President, shall be considered as partially
PIATCO[63] and in other cases both before and since should be applied:
complying with the requirement laid down in Senate v. Ermita. The requirement that the phrase
by order of the President should accompany the Executive Secretarys claim of privilege is a new
rule laid down for the first time in Senate v. Ermita, which was not yet final and executory at the
time respondents filed their Comment to the petition.[61] A strict application of this requirement
would thus be unwarranted in this case. This Court has long and consistently adhered to the legal maxim that
those that cannot be done directly cannot be done indirectly. To
declare the PIATCO contracts valid despite the clear statutory prohibition
against a direct government guarantee would not only make a mockery of
 what the BOT Law seeks to prevent -- which is to expose the government
to the risk of incurring a monetary obligation resulting from a contract of loan
between the project proponent and its lenders and to which the Government
is not a party to -- but would also render the BOT Law useless for what
it seeks to achieve - to make use of the resources of the private sector in
the financing, operation and maintenance of infrastructure and development
projects which are necessary for national growth and development but
which the government, unfortunately, could ill-afford to finance at this point
in time.[64]
Similarly, while herein petitioners-members of the House of Representatives may not have been
aiming to participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny
even to the point of giving them access to the offers exchanged between the Japanese and
Philippine delegations would have made a mockery of what the Constitution sought to prevent
and rendered it useless for what it sought to achieve when it vested the power of direct
negotiation solely with the President.
What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making
power of the President, which our Constitution similarly defines, may be gathered
from Hamiltons explanation of why the U.S. Constitution excludes the House of Representatives
from the treaty-making process:
x x x The fluctuating, and taking its future increase into account, the
multitudinous composition of that body, forbid us to expect in it those
qualities which are essential to the proper execution of such a
trust. Accurate and comprehensive knowledge of foreign politics; a steady
and systematic adherence to the same views; a nice and uniform sensibility
to national character, decision,secrecy and dispatch; are incompatible with
a body so variable and so numerous. The very complication of the business
by introducing a necessity of the concurrence of so many different bodies,
would of itself afford a solid objection. The greater frequency of the calls
upon the house of representatives, and the greater length of time which it
would often be necessary to keep them together when convened, to obtain
their sanction in the progressive stages of a treaty, would be source of so
great inconvenience and expense, as alone ought to condemn the
project.[65]
These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike
that of the U.S., does not even grant the Senate the power to advise the Executive in the
making of treaties, but only vests in that body the power to concur in the validity of the treaty
after negotiations have been concluded.[66] Much less, therefore, should it be inferred that the
House of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access to the subject
JPEPA documents would set a precedent for future negotiations, leading to the contravention of
the public interests articulated above which the Constitution sought to protect, the subject
documents should not be disclosed.
2. The dissent also asserts that respondents can no longer claim the diplomatic
secrets privilege over the subject JPEPA documents now that negotiations have been
concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita,
and later in their Comment, necessarily apply only for as long as the negotiations were still
pending;
In their Comment, respondents contend that the negotiations of the representatives of
the Philippines as well as of Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working drafts of opinions are
accorded strict confidentiality. That respondents liken the documents involved in the JPEPA
negotiations to judicial deliberations and working drafts of opinions evinces, by itself,
that they were claiming confidentiality not only until, but even after, the conclusion of the
negotiations.
Judicial deliberations do not lose their confidential character once a decision has been
promulgated by the courts. The same holds true with respect to working drafts of opinions, which
are comparable to intra-agency recommendations. Such intra-agency recommendations are
privileged even after the position under consideration by the agency has developed into a
definite proposition, hence, the rule in this jurisdiction that agencies have the duty to
disclose only definite propositions, and not the inter-agency and intra-agency communications
during the stage when common assertions are still being formulated.[67]
3. The dissent claims that petitioner-members of the House of Representatives have
sufficiently shown their need for the same documents to overcome the privilege. Again, We
disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue its earlier
intention to subpoena the documents. This strongly undermines the assertion that access to the
same documents by the House Committee is critical to the performance of its legislative
functions. If the documents were indeed critical, the House Committee should have, at the very
least, issued a subpoena duces tecum or, like what the Senate did in Senate v. Ermita, filed the
present petition as a legislative body, rather than leaving it to the discretion of individual
Congressmen whether to pursue an action or not. Such acts would have served as strong indicia
that Congress itself finds the subject information to be critical to its legislative functions.
Further, given that respondents have claimed executive privilege, petitioner-members of the
House of Representatives should have, at least, shown how its lack of access to the Philippine
and Japanese offers would hinder the intelligent crafting of legislation. Mere assertion that the
JPEPA covers a subject matter over which Congress has the power to legislate would not
suffice. As Senate Select Committee v. Nixon[68] held, the showing required to overcome the
presumption favoring confidentiality turns, not only on the nature and appropriateness of the
function in the performance of which the material was sought, but also the degree to which the
material was necessary to its fulfillment.This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and attachments
was published, petitioner-members of the House of Representatives have been free to use it for
any legislative purpose they may see fit. Since such publication, petitioners need, if
any, specifically for the Philippine and Japanese offers leading to the final version of the JPEPA,
has become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents,
the dissent contends that the Executive has failed to show how disclosing them afterthe
conclusion of negotiations would impair the performance of its functions. The contention, with
due respect, misplaces the onus probandi. While, in keeping with the general presumption of
transparency, the burden is initially on the Executive to provide precise and certain reasons for
upholding its claim of privilege, once the Executive is able to show that the documents being
sought are covered by a recognized privilege, the burden shifts to the party seeking information
to overcome the privilege by a strong showing of need.
When it was thus established that the JPEPA documents are covered by the privilege for
diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that their
disclosure would impair the performance of executive functions. It was then incumbent on
petitioner- requesting parties to show that they have a strong need for the information sufficient
to overcome the privilege. They have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the
privilege by order of the President, the same may not be strictly applied to the privilege claim
subject of this case.
When the Court in Senate v. Ermita limited the power of invoking the privilege to the President
alone, it was laying down a new rule for which there is no counterpart even in the United
States from which the concept of executive privilege was adopted. As held in the 2004 case
of Judicial Watch, Inc. v. Department of Justice,[69] citing In re Sealed Case,[70] the issue of
whether a President must personally invoke the [presidential communications] privilege remains
an open question. U.S. v. Reynolds,[71] on the other hand, held that [t]here 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 rule was thus laid down by this Court, not in adherence to any established precedent, but
with the aim of preventing the abuse of the privilege in light of its highly exceptional nature. The
Courts recognition that the Executive Secretary also bears the power to invoke the privilege,
provided he does so by order of the President, is meant to avoid laying down too rigid a rule, the
Court being aware that it was laying down a new restriction on executive privilege. It is with the
same spirit that the Court should not be overly strict with applying the same rule in this peculiar
instance, where the claim of executive privilege occurred before the judgment in Senate
v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies
that the Court therein erred in citing US v. Curtiss Wright[72] and the book entitled The New
American Government and Its Work[73] since these authorities, so the dissent claims, may not be
used to calibrate the importance of the right to information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the executive and
legislative branches of government, the factual setting thereof was different from that of PMPF
v. Manglapus which involved a collision between governmental power over the conduct of
foreign affairs and the citizens right to information.
That the Court could freely cite Curtiss-Wright a case that upholds the secrecy of
diplomatic negotiations against congressional demands for information in the course of laying
down a ruling on the public right to information only serves to underscore the principle
mentioned earlier that the privileged character accorded to diplomatic negotiations does not ipso
facto lose all force and effect simply because the same privilege is now being claimed under
different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private citizens and not an
executive-legislative conflict, but so did Chavez v. PEA[74] which held that the [publics] right to
information . . . does not extend to matters recognized as privileged information under the
separation of powers. What counts as privileged information in an executive-legislative conflict is
thus also recognized as such in cases involving the publics right to information.
Chavez v. PCGG[75] also involved the publics right to information, yet the Court
recognized as a valid limitation to that right the same privileged information based on separation
of powers closed-door Cabinet meetings, executive sessions of either house of Congress, and
the internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether in the context
of an executive-legislative conflict or a citizens demand for information, as closely intertwined,
such that the principles applicable to one are also applicable to the other.
The reason is obvious. If the validity of claims of privilege were to be assessed by entirely
different criteria in each context, this may give rise to the absurd result where Congress would
be denied access to a particular information because of a claim of executive privilege, but the
general public would have access to the same information, the claim of privilege
notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court adopts the clear and present
danger test for the assessment of claims of privilege against citizens demands for information. If
executive information, when demanded by a citizen, is privileged only when there is a clear and
present danger of a substantive evil that the State has a right to prevent, it would be very difficult
for the Executive to establish the validity of its claim in each instance. In contrast, if the demand
comes from Congress, the Executive merely has to show that the information is covered by a
recognized privilege in order to shift the burden on Congress to present a strong showing of
need. This would lead to a situation where it would be more difficult for Congress to
access executive information than it would be for private citizens.
We maintain then that when the Executive has already shown that an information is covered by
executive privilege, the party demanding the information must present a strong showing of
need, whether that party is Congress or a private citizen.
The rule that the same showing of need test applies in both these contexts, however, should not
be construed as a denial of the importance of analyzing the context in which an executive
privilege controversy may happen to be placed. Rather, it affirms it, for it means that
the specific need being shown by the party seeking information in every particularinstance is
highly significant in determining whether to uphold a claim of privilege. This need is, precisely,
part of the context in light of which every claim of privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied to executive
privilege controversies across different contexts, the Court in PMPF v. Manglapusdid not err
when it cited the Curtiss-Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American Government
and Its Work could not have taken into account the expanded statutory right to information in the
FOIA assumes that the observations in that book in support of the confidentiality of treaty
negotiations would be different had it been written after the FOIA.Such assumption is, with due
respect, at best, speculative.
As to the claim in the dissent that [i]t is more doubtful if the same book be used to calibrate the
importance of the right of access to information in the Philippine setting considering its elevation
as a constitutional right, we submit that the elevation of such right as a constitutional right did not
set it free from the legitimate restrictions of executive privilege which is itself constitutionally-
based.[76] Hence, the comments in that book which were cited in PMPF v. Manglapus remain
valid doctrine.
6. The dissent further asserts that the Court has never used need as a test to uphold or allow
inroads into rights guaranteed under the Constitution. With due respect, we assert
otherwise. The Court has done so before, albeit without using the term need.
In executive privilege controversies, the requirement that parties present a sufficient showing of
need only means, in substance, that they should show a public interest in favor of
disclosure sufficient in degree to overcome the claim of privilege.[77] Verily, the Court in such
cases engages in a balancing of interests. Such a balancing of interests is certainly not new in
constitutional adjudication involving fundamental rights. Secretary of Justice v. Lantion,[78] which
was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the clear and present danger
test to the present controversy, but the balancing test, there seems to be no substantial dispute
between the position laid down in this ponencia and that reflected in the dissent as to what test
to apply. It would appear that the only disagreement is on the results of applying that test in this
instance.
The dissent, nonetheless, maintains that it suffices that information is of public concern for it to
be covered by the right, regardless of the publics need for the information, and that the same
would hold true even if they simply want to know it because it interests them. As has been stated
earlier, however, there is no dispute that the information subject of this case is a matter of public
concern. The Court has earlier concluded that it is a matter of public concern, not on the basis of
any specific need shown by petitioners, but from the very nature of the JPEPA as an
international trade agreement.
However, when the Executive has as in this case invoked the privilege, and it has been
established that the subject information is indeed covered by the privilege being claimed, can a
party overcome the same by merely asserting that the information being demanded is a matter
of public concern, without any further showing required? Certainly not, for that would render the
doctrine of executive privilege of no force and effect whatsoever as a limitation on the right to
information, because then the sole test in such controversies would be whether an information is
a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the
documents of the JPEPA negotiations, the Philippine government runs the grave risk of
betraying the trust reposed in it by the Japanese representatives, indeed, by the Japanese
government itself. How would the Philippine government then explain itself when that
happens? Surely, it cannot bear to say that it just had to release the information because certain
persons simply wanted to know it because it interests them.
Thus, the Court holds that, in determining whether an information is covered by the
right to information, a specific showing of need for such information is not a relevant
consideration, but only whether the same is a matter of public concern. When, however, the
government has claimed executive privilege, and it has established that the information is indeed
covered by the same, then the party demanding it, if it is to overcome the privilege, must show
that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to
effectively and reasonably participate in social, political, and economic decision-making.[79]
7. The dissent maintains that [t]he treaty has thus entered the ultimate stage where the people
can exercise their right to participate in the discussion whether the Senate should concur in its
ratification or not. (Emphasis supplied) It adds that this right will be diluted unless the people can
have access to the subject JPEPA documents. What, to the dissent, is a dilution of the right to
participate in decision-making is, to Us, simply a recognition of the qualified nature of the publics
right to information. It is beyond dispute that the right to information is not absolute and that the
doctrine of executive privilege is a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-making would be
diluted, We reiterate that our people have been exercising their right to participate in the
discussion on the issue of the JPEPA, and they have been able to articulate their different
opinions without need of access to the JPEPA negotiation documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
To recapitulate, petitioners demand to be furnished with a copy of the full text of the JPEPA has
become moot and academic, it having been made accessible to the public since September 11,
2006. As for their demand for copies of the Philippine and Japanese offers submitted during the
JPEPA negotiations, the same must be denied, respondents claim of executive privilege being
valid.

8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select
Committee case, and In re Sealed Case, are similarly applicable to the present controversy, the
dissent cites the caveat in the Nixon case that the U.S. Court was there addressing only the
Presidents assertion of privilege in the context of a criminal trial, not a civil litigation nor a
congressional demand for information. What this caveat means, however, is only that courts
must be careful not to hastily apply the ruling therein to other contexts. It does not, however,
absolutely mean that the principles applied in that case may never be applied in such contexts.
Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF
v. Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction and the
reasons proffered by petitioners against the application of the ruling therein to the present case
have not persuaded the Court. Moreover, petitioners both private citizens and members of the
House of Representatives have failed to present a sufficient showing of need to overcome the
claim of privilege in this case.

Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive
privilege in contexts other than a criminal trial, as in the case of Nixon v. Administrator of
General Services[80] which involved former President Nixons invocation of executive privilege to
challenge the constitutionality of the Presidential Recordings and Materials Preservation
Act[81] and the above-mentioned In re Sealed Case which involved a claim of privilege against
a subpoena duces tecum issued in a grand jury investigation.
That the privilege was asserted for the first time in respondents Comment to the present petition,
and not during the hearings of the House Special Committee on Globalization, is of no moment,
since it cannot be interpreted as a waiver of the privilege on the part of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as departing from
the ruling in Senate v. Ermita that executive privilege should be invoked by the President or
through the Executive Secretary by order of the President.

Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other
cases already mentioned, We are merely affirming what the Chief Justice stated in his
Dissenting Opinion in Neri v. Senate Committee on Accountability[82] a case involving an
executive-legislative conflict over executive privilege. That dissenting opinion stated that, WHEREFORE, the petition is DISMISSED.
while Nixon was not concerned with the balance between the Presidents generalized interest in
confidentiality and congressional demands for information, [n]onetheless the [U.S.] Court laid
down principles and procedures that can serve as torch lights to illumine us on the scope
and use of Presidential communication privilege in the case at bar.[83] While the Court was SO ORDERED.
divided in Neri, this opinion of the Chief Justice was not among the points of disagreement, and
We similarly hold now that the Nixon case is a useful guide in the proper resolution of the
present controversy, notwithstanding the difference in context.

Verily, while the Court should guard against the abuse of executive privilege, it should
also give full recognition to the validity of the privilege whenever it is claimed within the
proper bounds of executive power, as in this case. Otherwise, the Court would undermine its
own credibility, for it would be perceived as no longer aiming to strike a balance, but seeking
merely to water down executive privilege to the point of irrelevance.

Conclusion
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 168613 March 5, 2013
ATTY. MA. ROSARIO MANALANG-DEMIGILLO, Petitioner,
vs.
TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES
(TIDCORP), and its BOARD OF DIRECTORS, Respondents.
x-----------------------x
G.R. No. 185571
TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE
PHILIPPINES, Petitioner,
vs.
MA. ROSARIO S. MANALANG-DEMIGILLO, Respondent.
DECISION
BERSAMIN, J.:
A reorganization undertaken pursuant to a specific statutory authority by the Board of Directors
of a government-owned and government-controlled corporation is valid.
Antecedents
On February 12, 1998, the Philippine Export and Foreign Loan Guarantee was renamed Trade
and Investment Development Corporation of the Philippines (TIDCORP) pursuant to Republic
Act No. 8494 entitled An Act Further Amending Presidential Decree No. 1080, As Amended, by
Reorganizing And Renaming the Philippine Export and Foreign Loan Guarantee Corporation,
Expanding Its Primary Purpose, and for Other Purposes.
Republic Act No. 8494 reorganized the structure of TIDCORP. The issuance of appointments in
accordance with the reorganization ensued. Petitioner Rosario Manalang-Demigillo (Demigillo)
was appointed as Senior Vice President (PG 15) with permanent status, and was assigned to
the Legal and Corporate Services Department (LCSD) of TIDCORP.
In 2002, TIDCORP President Joel C. Valdes sought an opinion from the Office of the
Government Corporate Counsel (OGCC) relative to TIDCORP’s authority to undertake a
reorganization under the law, whose Section 7 and Section 8 provide as follows:
Section 7. The Board of Directors shall provide for an organizational structure and staffing
pattern for officers and employees of the Trade and Investment Development Corporation of the
Philippines (TIDCORP) and upon recommendation of its President, appoint and fix their
remuneration, emoluments and fringe benefits: Provided, That the Board shall have exclusive
and final authority to appoint, promote, transfer, assign and re-assign personnel of the
TIDCORP, any provision of existing law to the contrary notwithstanding. x x x
Section 8. All incumbent personnel of the Philippine Export and Foreign Loan Guarantee
Corporation shall continue to exercise their duties and functions as personnel of the TIDCORP
until reorganization is fully implemented but not to exceed one (1) year from the approval of this
Act. The Board of Directors is authorized to provide for separation benefits for those who cannot
be accommodated in the new structure. All those who shall retire or are separated from the
service on account of the reorganization under the preceding Section shall be entitled to such
incentives, as are authorized by the Corporation, which shall be in addition to all gratuities and
benefits to which they may be entitled under existing laws.
In Opinion No. 221 dated September 13, 2002,1 then Government Corporate Counsel Amado D.
Valdez opined as follows:
There is no question on the power of the PhilEXIM (also known as TIDCORP) Board of Directors
to undertake a reorganization of the corporation’s present organizational set-up. In fact, the
authority to provide for the corporation’s organizational structure is among the express powers
granted to PhilEXIM through its Board.
As to the one-year period to implement a reorganization mentioned in Section 8 of RA 8494, it is
our considered opinion that the same provision refers to the initial reorganization to effect
transition from the Philippine Export and Foreign Loan Guarantee Corporation (Philguarantee) to
what is now known as the Trade and Investment Corporation of the Philippines (TIDCORP). The
one-year period does not, however, operate as a limitation that any subsequent changes in the
organizational set-up pursuant to the authority of the Board to determine the corporation’s
organizational structure under Section 7 of RA 8494, which is designed to make the corporation
more attuned to the needs of the people or, in this case, the sector of the Philippine economy
that it serves, can only be made during the same one-year period.
On the basis of OGCC Opinion No. 221, the Board of Directors passed Resolution No. 1365,
Series of 2002, on October 22, 2002 to approve a so-called Organizational
Refinement/Restructuring Plan to implement a new organizational structure and staffing pattern,
a position classification system, and a new set of qualification standards.
During the implementation of the Organizational Refinement/Restructuring Plan, the LCSD was
abolished. According to the List of Appointed Employees under the New Organizational
Structure of TIDCORP as of November 1, 2002, Demigillo, albeit retaining her position as a
Senior Vice President, was assigned to head the Remedial and Credit Management Support
Sector (RCMSS). On the same date, President Valdes issued her appointment as head of
RCMSS, such appointment being in nature a reappointment under the reorganization plan.
On December 13, 2002, President Valdes issued a memorandum informing all officers and
employees of TIDCORP that the Board of Directors had approved on December 11, 2002 the
appointments issued pursuant to the newly approved positions under the Organizational
Refinement/Restructuring Plan.
In her letter dated December 23, 2002 that she sent to TIDCORP Chairman Jose Isidro
Camacho, however, Demigillo challenged before the Board of Directors the validity of Resolution
No. 1365 and of her assignment to the RCMSS. She averred that she had been thereby illegally
removed from her position of Senior Vice President in the LCSD to which she had been
previously assigned during the reorganization of July 1998. She insisted that contrary to OGCC
Opinion No. 221 dated September 13, 2002 the Board of Directors had not been authorized to
undertake the reorganization and corporate restructuring.
On January 31, 2003, pending determination of her challenge by the Board of Directors,
Demigillo appealed to the Civil Service Commission (CSC), raising the same issues.
TIDCORP assailed the propriety of Demigillo’s appeal to the CSC, alleging that her elevation of
the case to the CSC without the Board of Directors having yet decided her challenge had been
improper and a clear case of forum-shopping.
Later on, however, TIDCORP furnished to the CSC a copy of Board Decision No. 03-002
dismissing Demigillo’s appeal for its lack of merit, thereby rendering the question about the
propriety of Demigillo’s appeal moot and academic. Board Decision No. 03-002 pertinently reads
as follows:
Atty. Demigillo failed to show to the Board that she was prejudiced in the implementation of the
TIDCORP organizational refinements/restructuring. She was reappointed to the same position
she was holding before the reorganization. She was not demoted in terms of salary, rank and
status. There was a (sic) substantial compliance with the requirements of RA 6656, particularly
on transparency. More importantly, the said organizational refinements done and adoption of a
new compensation structure were made in accordance with what is mandated under the Charter
of the Corporation.
WHEREFORE, foregoing premises considered, the Board decided as it hereby decides to
DISMISS the appeal of Atty. Ma Rosario Demigillo for lack of merit.2
In the meanwhile, by letter dated April 14, 2003, President Valdes informed Demigillo of her poor
performance rating for the period from January 1, 2002 to December 31, 2002, to wit:
After a thorough evaluation/assessment of your job performance for the rating period January 1
to December 21, 2002, it appears that your over-all performance is ‘Poor’.
Records show that you consistently behaved as an obstructionist in the implementation of the
Corporate Business Plan. You failed to demonstrate cooperation, respect and concern towards
authority and other members of the company. You also failed to abide by Civil Service and
company policies, rules and regulation. You miserably failed to adapt and respond to changes.
You were very resentful to new approaches as shown by your vehement objection to new
improved policies and programs. Instead of helping raise the morale of subordinate at high
levels (sic) and promote career and professional growth of subordinates, you tried to block such
efforts towards this end.
In view of the foregoing and your failure to prove that you have effectively and efficiently
performed the duties, functions and responsibility (sic) of your position, I am constrained to give
you a rating of "Poor" for your 2002 performance.3
On April 28, 2003, Demigillo formally communicated to Atty. Florencio P. Gabriel Jr., Executive
Vice President of the Operations Group, appealing the "poor rating" given her by President
Valdes.
In a memorandum dated May 6, 2003, Atty. Gabriel informed Demigillo that he could not act on
her appeal because of her "failure to state facts and arguments constituting the grounds for the
appeal and submit any evidence to support the same."4
On May 6, 2003, President Valdes issued a memorandum to Demigillo stating that he found no
justification to change the poor rating given to her for the year 2002.
On August 12, 2003, Demigillo received a memorandum from President Valdes stating that her
performance rating for the period from January 1, 2003 to June 2003 "needs improvement,"
attaching the pertinent Performance Evaluation Report Form that she was instructed to return
"within 24 hours from receipt."5
Not in conformity with the performance rating, Demigillo scribbled on the right corner of the
memorandum the following comments: "I do not agree and accept. I am questioning the same.
This is pure harassment."
She then appealed the poor performance rating on August 14, 2003, calling the rating a part of
Valdes’ "unremitting harassment and oppression on her."6
On August 19, 2003, Demigillo reported for work upon the expiration of the 90-day preventive
suspension imposed by the Board of Directors in a separate administrative case for grave
misconduct, conduct prejudicial to the best interest of the service, insubordination and gross
discourtesy. In her memorandum of that date, she informed Atty. Gabriel Jr. of her readiness to
resume her duties and responsibilities, but requested to be allowed to reproduce documents in
connection with the appeal of her performance rating. She further requested that the relevant
grievance process should commence.
It appears that the Board of Directors rendered Decision No. 03-003 dated August 15, 2003
unanimously dropping Demigillo from the rolls.7 Demigillo received the copy of Decision No. 03-
003 on August 25, 2003.
Decision of the CSC
On October 14, 2004, the CSC ruled through Resolution No. 0410928 that the 2002
Organizational Refinements or Restructuring Plan of TIDCORP had been valid for being
authorized by Republic Act. No. 6656; that Section 7 of Republic Act No. 8498 granted a
continuing power to TIDCORP’s Board of Directors to prescribe the agency’s organizational
structure, staffing pattern and compensation packages; and that such grant continued until
declared invalid by a court of competent jurisdiction or revoked by Congress.
The CSC held, however, that TIDCORP’s implementation of its reorganization did not comply
with Section 6 of Republic Act No. 6656;9 that although there was no diminution in Demigillo’s
rank, salary and status, there was nonetheless a demotion in her functions and authority,
considering that the 2002 reorganization reduced her authority and functions from being the
highest ranking legal officer in charge of all the legal and corporate affairs of TIDCORP to being
the head of the RCMSS reporting to the Executive Vice President and having only two
departments under her supervision; and that the functions of Demigillo’s office were in fact
transferred to the Operations Group.
The CSC further held that the dropping from the rolls of Demigillo did not comply with the
mandatory requirement under Section 2, particularly 2.2 Rule XII of the Revised Omnibus Rules
on Appointments and Other Personnel Actions Memorandum Circular No. 40, Series of 1998.
Subsequently, TIDCORP reinstated Demigillo to the position of Senior Vice President in
RCMSS, a position she accepted without prejudice to her right to appeal the decision of the
CSC.
Ruling of the CA
Both Demigillo and TIDCORP appealed the decision of the CSC to the Court of Appeals (CA).
Demigillo’s appeal was docketed as CA-G.R. SP No. 87285. On the other hand, TIDCORP’s
appeal was docketed as CA-G.R. SP No. 87295.
In CA-G.R. SP No. 87285, Demigillo partially assailed the CSC’s decision, claiming that the CSC
erred: (1) in holding that Section 7 of Republic Act No. 8494 granted the Board of Directors of
TIDCORP a continuing power to reorganize; (2) in holding that the 2002 TIDCORP
reorganization had been authorized by law; and (3) in not holding that the 2002 TIDCORP
reorganization was void ab initio because it was not authorized by law and because the
reorganization did not comply with Republic Act No. 6656. 10
In CA-G.R. SP No. 87295, TIDCORP contended that the CSC erred: (1) in ruling that Demigillo
had been demoted as a result of the 2002 TIDCORP reorganization; and (2) in ruling that
TIDCORP had failed to observe the provisions of Section 2, particularly 2.2 Rule XII of the
Revised Omnibus Rules on Appointments and Other Personnel Actions (Memorandum Circular
No. 40, Series of 1998) on dropping from the rolls, to the prejudice of Demigillo’s right to due
process.11
On June 27, 2005, the CA’s Fourth Division promulgated its decision in CA–G.R. SP No.
87285,12 which, albeit affirming the ruling of the CSC, rendered a legal basis different from that
given by the CSC, to wit:
In numerous cases citing Section 20 and Section 31, Book III of Executive Order No. 292,
otherwise known as the Administrative Code of 1987, the Supreme Court ruled in the affirmative
that the President of the Philippines has the continuing authority to reorganize the administrative
structure of the Office of the President.
Hence, being the alter ego of the President of the Philippines, the Board of Directors of the
private respondent-appellee is authorized by law to have a continuous power to reorganize its
agency.13
Anent Demigillo’s contention that the 2002 reorganization effected was invalid, the CA ruled:
x x x. In this jurisdiction, reorganizations have been regarded as valid provided they are pursued
in good faith. Reorganization is carried out in good faith if it is for the purpose of economy or to
make bureaucracy more efficient.
In the case at bench, it is our considered opinion that except for her allegations, the petitioner-
appellant (Demigillo) failed to present sufficient evidence that the reorganization effected in 2002
did not bear the earmarks of economy and efficiency. Good faith is always presumed. 14
The CA held that Demigillo could not be reinstated to her previous position of Senior Vice
President of the LCSD in view of the legality of the 2002 reorganization being upheld. 15
With respect to CA-G.R. SP No. 87295, the CA’s Special Former Thirteenth Division
promulgated a decision on November 28, 2008,16 denying TIDCORP’s appeal, and holding that
Demigillo had been demoted and invalidly dropped from the rolls by TIDCORP, explaining:
We do not need to stretch Our imagination that respondent Demigillo, one of the highest ranking
officers of the corporation, was indeed demoted when she was designated to be the head of
merely one sector. She may have retained her title as SVP, but she was deprived of the
authority she previously enjoyed and stripped of the duties and responsibilities assigned to her
under the Legal and Corporate Services. In utter disregard of respondent Demigillo’s right to
security of tenure, petitioner TIDCORP demoted her in the guise of "reorganization."
xxxx
Next, petitioner TIDCORP asserts that respondent Demigillo was legally dropped from the rolls.
This is a delirious supposition which does not deserve merit at all.
xxxx
Petitioner TIDCORP did not bother to adduce proof that it complied with the rudiments of due
process before dropping Demigillo from the rolls. She was not given the chance to present
evidence refuting the contentious ratings as her employer refused to discuss how it arrived at
such assessment. Her unceremonious dismissal was made even more apparent as she was
never advised of the possibility that she may be separated from service if her rating would not
improve for the next evaluation period.17
Issues
Demigillo filed before this Court a petition for review on certiorari assailing the CA decision in
CA-G.R. SP No. 87285 (G.R. No. 168613), asserting that the CA gravely erred: (1) in holding
that the Board of Directors of TIDCORP was an alter ego of the President who had the
continuing authority to reorganize TIDCORP; and (2) in holding that the reorganization of
TIDCORP effected in 2002 was valid considering her alleged failure to present evidence
sufficiently showing that the reorganization did not bear the earmarks of economy and
efficiency.18 Corollarily, she sought her reinstatement to a position comparable to her former
position as Senior Vice President in the LCSD.19
Likewise, TIDCORP appealed through a petition for review on certiorari, praying for the reversal
of the decision promulgated in CA-G.R. SP No. 87295 (G.R. No. 185571), contending that the
CA erred: (1) in ruling that Demigillo had been demoted as a result of the TIDCORP 2002
reorganization; and (2) in ruling that Demigillo had not been legally dropped from the rolls.20
On March 8, 2011, the Court En Banc consolidated G.R. No. 168613 and G.R. No. 185571. 21
Ruling of the Court
We deny the petition for review of Demigillo (G.R. No. 168613) for its lack of merit, but grant the
petition for review of TIDCORP (G.R. No. 185571).
G.R. No. 168613
In its comment in G.R. No. 168613,22 TIDCORP argues for the application of the doctrine of
qualified political agency, contending that the acts of the Board of Directors of TIDCORP, an
attached agency of the Department of Finance whose head, the Secretary of Finance, was an
alter ego of the President, were also the acts of the President.
TIDCORP’s argument is unfounded.
The doctrine of qualified political agency, also known as the alter ego doctrine, was introduced in
the landmark case of Villena v. The Secretary of Interior.23 In said case, the Department of
Justice, upon the request of the Secretary of Interior, investigated Makati Mayor Jose D. Villena
and found him guilty of bribery, extortion, and abuse of authority. The Secretary of Interior then
recommended to the President the suspension from office of Mayor Villena. Upon approval by
the President of the recommendation, the Secretary of Interior suspended Mayor Villena.
Unyielding, Mayor Villena challenged his suspension, asserting that the Secretary of Interior had
no authority to suspend him from office because there was no specific law granting such power
to the Secretary of Interior; and that it was the President alone who was empowered to suspend
local government officials. The Court disagreed with Mayor Villena and upheld his suspension,
holding that the doctrine of qualified political agency warranted the suspension by the Secretary
of Interior. Justice Laurel, writing for the Court, opined:
After serious reflection, we have decided to sustain the contention of the government in this case
on the broad proposition, albeit not suggested, that under the presidential type of government
which we have adopted and considering the departmental organization established and
continued in force by paragraph 1, section 12, Article VII, of our Constitution, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except in cases
where the Chief Executive is required by the Constitution or the law to act in person or the
exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive
departments, and the acts of the secretaries of such departments, performed and promulgated
in the regular course of business, are, unless disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive. (Runkle vs. United States [1887], 122 U. S., 543;
30 Law. ed., 1167; 7 Sup. Ct. Rep., 1141; see also U. S. vs. Eliason [1839], 16 Pet., 291; 10
Law. ed., 968; Jones vs. U. S. [1890], 137 U. S., 202; 34 Law. ed., 691; 11 Sup. Ct., Rep., 80;
Wolsey vs. Chapman [1880], 101 U. S., 755; 25 Law. ed., 915; Wilcox vs. Jackson [1836], 13
Pet., 498; 10 Law. ed., 264.)
Fear is expressed by more than one member of this court that the acceptance of the principle of
qualified political agency in this and similar cases would result in the assumption of responsibility
by the President of the Philippines for acts of any member of his cabinet, however illegal,
irregular or improper may be these acts. The implications, it is said, are serious. Fear, however,
is no valid argument against the system once adopted, established and operated. Familiarity
with the essential background of the type of Government established under our Constitution, in
the light of certain well-known principles and practices that go with the system, should offer the
necessary explanation. With reference to the Executive Department of the government, there is
one purpose which is crystal-clear and is readily visible without the projection of judicial
searchlight, and that is the establishment of a single, not plural, Executive. The first section of
Article VII of the Constitution, dealing with the Executive Department, begins with the
enunciation of the principle that "The executive power shall be vested in a President of the
Philippines." This means that the President of the Philippines is the Executive of the
Government of the Philippines, and no other. The heads of the executive departments occupy
political positions and hold office in an advisory capacity, and, in the language of Thomas
Jefferson, "should be of the President’s bosom confidence" (7 Writings, Ford ed., 498), and in
the language of Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the
direction of the President." Without minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of that of the President. Stated
otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United
States, "each head of a department is, and must be, the President's alter ego in the matters of
that department where the President is required by law to exercise authority." (Myers vs. United
States, 47 Sup. Ct. Rep., 21 at 30; 272 U.S. 52 at 133; 71 Law. Ed., 160). x x x.
The doctrine of qualified political agency essentially postulates that the heads of the various
executive departments are the alter egos of the President, and, thus, the actions taken by such
heads in the performance of their official duties are deemed the acts of the President unless the
President himself should disapprove such acts. This doctrine is in recognition of the fact that in
our presidential form of government, all executive organizations are adjuncts of a single Chief
Executive; that the heads of the Executive Departments are assistants and agents of the Chief
Executive; and that the multiple executive functions of the President as the Chief Executive are
performed through the Executive Departments. The doctrine has been adopted here out of
practical necessity, considering that the President cannot be expected to personally perform the
multifarious functions of the executive office.
But the doctrine of qualified political agency could not be extended to the acts of the Board of
Directors of TIDCORP despite some of its members being themselves the appointees of the
President to the Cabinet. Under Section 10 of Presidential Decree No. 1080, as further amended
by Section 6 of Republic Act No. 8494,24 the five ex officio members were the Secretary of
Finance, the Secretary of Trade and Industry, the Governor of the Bangko Sentral ng Pilipinas,
the Director-General of the National Economic and Development Authority, and the Chairman of
the Philippine Overseas Construction Board, while the four other members of the Board were the
three from the private sector (at least one of whom should come from the export community),
who were elected by the ex officio members of the Board for a term of not more than two
consecutive years, and the President of TIDCORP who was concurrently the Vice-Chairman of
the Board. Such Cabinet members sat on the Board of Directors of TIDCORP ex officio, or by
reason of their office or function, not because of their direct appointment to the Board by the
President. Evidently, it was the law, not the President, that sat them in the Board.
Under the circumstances, when the members of the Board of Directors effected the assailed
2002 reorganization, they were acting as the responsible members of the Board of Directors of
TIDCORP constituted pursuant to Presidential Decree No. 1080, as amended by Republic Act
No. 8494, not as the alter egos of the President. We cannot stretch the application of a doctrine
that already delegates an enormous amount of power. Also, it is settled that the delegation of
power is not to be lightly inferred.25
Nonetheless, we uphold the 2002 reorganization and declare it valid for being done in
accordance with the exclusive and final authority expressly granted under Republic Act No.
8494, further amending Presidential Decree No. 1080, the law creating TIDCORP itself, to wit:
Section 7. The Board of Directors shall provide for an organizational structure and staffing
pattern for officers and employees of the Trade and Investment Development Corporation of the
Philippines (TIDCORP) and upon recommendation of its President, appoint and fix their
remuneration, emoluments and fringe benefits: Provided, That the Board shall have exclusive
and final authority to appoint, promote, transfer, assign and re-assign personnel of the
TIDCORP, any provision of existing law to the contrary notwithstanding.
In this connection, too, we reiterate that we cannot disturb but must respect the ruling of the
CSC that deals with specific cases coming within its area of technical knowledge and
expertise,26 absent a clear showing of grave abuse of discretion on its part. That clear showing
was not made herein. Such deference proceeds from our recognition of the important role of the
CSC as the central personnel agency of the Government having the familiarity with and
expertise on the matters relating to the career service.
Worthy to stress, lastly, is that the reorganization was not arbitrary and whimsical. It had been
formulated following lengthy consultations and close coordination with the affected offices within
TIDCORP in order for them to come up with various functional statements relating to the new
organizational setup. In fact, the Board of Directors decided on the need to reorganize in 2002 to
achieve several worthy objectives, as follows:
(1) To make the organization more viable in terms of economy, efficiency,
effectiveness and make it more responsive to the needs of its clientèles by eliminating
or minimizing any overlaps and duplication of powers and functions;
(2) To come up with an organizational structure which is geared towards the
strengthening of the Corporation's overall financial and business operations through
resource allocation shift; and
(3) To rationalize corporate operations to maximize resources and achieve optimum
sustainable corporate performance vis-a-vis revised corporate policies, objectives and
directions by focusing the Corporation's efforts and resources to its vital and core
functions.27
The result of the lengthy consultations and close coordination was the comprehensive
reorganization plan that included a new organizational structure, position classification and
staffing pattern, qualification standards, rules and regulations to implement the reorganization,
separation incentive packages and timetable of implementation. Undoubtedly, TIDCORP
effected the reorganization within legal bounds and in response to the perceived need to make
the agency more attuned to the changing times.
Having found the 2002 reorganization to be valid and made pursuant to Republic Act No. 8494,
we declare that there are no legal and practical bases for reinstating Demigillo to her former
position as Senior Vice President in the LCSD. To be sure, the reorganization plan abolished the
LCSD, and put in place a set-up completely different from the previous one, including a new
staffing pattern in which Demigillo would be heading the RCMSS, still as a Senior Vice President
of TIDCORP. With that abolition, reinstating her as Senior Vice President in the LCSD became
legally and physically impossible.
Demigillo’s contention that she was specifically appointed to the position of Senior Vice
President in the LCSD was bereft of factual basis. The records indicate that her permanent
appointment pertained only to the position of Senior Vice President.28 Her appointment did not
indicate at all that she was to hold that specific post in the LCSD. Hence, her re-assignment to
the RCMSS was by no means a diminution in rank and status considering that she maintained
the same rank of Senior Vice President with an accompanying increase in pay grade.
The assignment to the RCMSS did not also violate Demigillo’s security of tenure as protected by
Republic Act No. 6656. We have already upheld reassignments In the Civil Service resulting
from valid reorganizations.29 Nor could she claim that her reassignment was invalid because it
caused the reduction in her rank, status or salary. On the contrary, she was reappointed as
Senior Vice President, a position that was even upgraded like all the other similar positions to
Pay Grade 16, Step 4, Level II.30 In every sense, the position to which she was reappointed
under the 2002 reorganization was comparable with, if not similar to her previous position.
That the RCMSS was a unit smaller than the LCSD did not necessarily result in or cause a
demotion for Demigillo. Her new position was but the consequence of the valid reorganization,
the authority to implement which was vested in the Board of Directors by Republic Act No. 8494.
Indeed, we do not consider to be a violation of the civil servant’s right to security of tenure the
exercise by the agency where she works of the essential prerogative to change the work
assignment or to transfer the civil servant to an assignment where she would be most useful and
effective. More succinctly put, that prerogative inheres with the employer, 31 whether public or
private.
G.R. No. 185571
As earlier stated, TIDCORP’s petition for review in G.R. No. 185571 is meritorious.
Anent the first issue in G.R. No. 185571, we have already explained that Demigillo was not
demoted because she did not suffer any diminution in her rank, status and salary under the
reorganization. Her reassignment to the RCMSS, a smaller unit compared to the LCSD,
maintained for her the same rank of Senior Vice-President with a corresponding increase in pay
grade. The reassignment resulted from the valid reorganization.
With respect to the second issue, Demigillo was validly dropped from the rolls by TIDCORP as
the consequence of the application of the rules governing her employment. Section 2 (2.2), Rule
XII of the Revised Omnibus Rules on Appointments and Other Personnel Actions (Memorandum
Circular No. 40, Series of 1998) provides:
xxxx
2.2 Unsatisfactory or Poor Performance
a. An official or employee who is given two (2) consecutive unsatisfactory ratings may
be dropped from the rolls after due notice. Notice shall mean that the officer or
employee concerned is informed in writing of his unsatisfactory performance for a
semester and is sufficiently warned that a succeeding unsatisfactory performance
shall warrant his separation from the service. Such notice shall be given not later than
30 days from the end of the semester and shall contain sufficient information which
shall enable the employee to prepare an explanation.
b. An official or employee, who for one evaluation period is rated poor in performance,
may be dropped from the rolls after due notice. Notice shall mean that the officer or
employee is informed in writing of the status of his performance not later than the 4th
month of that rating period with sufficient warning that failure to improve his
performance within the remaining period of the semester shall warrant his separation
from the service. Such notice shall also contain sufficient information which shall
enable the employee to prepare an explanation.
Under Section (b), supra, an official or employee may be dropped from the rolls provided the
following requisites are present, namely: (1) the official or employee was rated poor in
performance for one evaluation period; (2) the official or employee was notified in writing of the
status of her performance not later than the 4th month of the rating period with sufficient warning
that failure to improve her performance within the remaining period of the semester shall warrant
her separation from the service; and (3) such notice contained adequate information that would
enable her to prepare an explanation.
All of the requisites were duly established herein.
As to the first requisite, there is no dispute that President Valdes gave Demigillo a poor
performance rating for the annual rating period from January 1, 2002 to December 31, 2002.
The second requisite speaks of a sixth-month or per semester rating period. Although
Demigillo’s poor rating was made on an annual basis, that was allowed by the implementing
rules of Executive Order No. 292.32 Regarding the need to give her the written notice of her
performance status not later than the 4th month of the rating period, or at the half of the
semester, the requirement did not apply here because her rating was made on an annual basis.
By analogy, however, the written notice for an annual rating period could be sent on the 6th
month or in the middle of the year. Nevertheless, this was not expressly provided for in the Civil
Service rules.1âwphi1 In any case, it is emphasized that the purpose of the written notice being
sent to the affected officer or employee not later than the 4th month of the rating period has
been to give her the sufficient time to improve her performance and thereby avert her separation
from the service. That purpose is the very essence of due process.
In Demigillo’s case, therefore, what was crucial was whether she had been allowed to enhance
her performance within a sufficient time from her receipt of the written notice of the poor
performance rating up to her receipt of the written notice of her dropping from the rolls. The
records show that she was, indeed, given enough time for her to show improvement. She
received on April 21, 2003 a letter from President Valdes that indicated her poor performance
rating for the period of January 1, 2002 to December 31, 2002.33 The Board of Directors issued
on August 15, 2003 the decision dropping her from rolls.34 She received a copy of the decision
on August 25, 2003.35Thereby, she was given almost four months to improve her performance
before she was finally dropped from the rolls.
The second requisite further mentions that the written notice must contain sufficient warning that
failure to improve her performance within the remaining period of the semester shall warrant
separation from the service. Although the letter informing Demigillo of her poor performance
rating did not expressly state such a warning to her, it stated her gross failures in the
performance of her duties.36 The Performance Evaluation Report Form corresponding to her,
which was attached to the memorandum given to her, reflected her poor performance.36 She
was notified in writing of the denial of her appeal of the poor rating. 37 It cannot be denied that the
letter of poor rating, the Performance Evaluation Repmi Form, and the denial of her appeal all
signified to her that she could be removed from the service unless she would improve her
performance. Thereby, she was given ample warning to improve, or else be separated from the
service. In that regard, she was certainly not a witless person who could have missed the
significance of such events. She was not only a lawyer. 38 She was also a mid-level ranking
government official who had been in the government corporate sector for almost 20 years. 39 Her
familiarity with the dire consequences of a failure to improve a poor rating under Civil Service
rules was justifiably assumed.
Anent the third requisite, the letter of President Valdes plainly stated the reasons for her poor
rating. Her Performance Evaluation Repmi Form, which was attached to the letter, enumerated
several criteria used in measuring her management skills and the corresponding rating per
criterion. The letter even suggested that in order for her to enhance her performance she should
undergo extensive training on business management, a comprehensive lecture program on Civil
Service rules and regulations, and a training on effective public relations. The letter indicated
that the contents of the Performance Evaluation Report had been discussed with her. Moreover,
Demigillo formally appealed the poor performance rating, except that TIDCORP denied her
appeal.40All these circumstances show that she was given more than enough information about
the bases for her poor performance rating, enabling her to appeal properly.

WHEREFORE, we DENY the petition for review on certiorari in G.R. No. 168613; AFFIRM the
decision promulgated on June 27, 2005 by the Court of Appeals in its CA-G.R. No. 87285;
GRANT the petition for review on certiorari in G.R. No. 185571; SET ASIDE the decision
promulgated on November 28, 2008 by the Court of Appeals in its CA-G.R. No. 87295; and
ORDER Atty. MA. ROSARIO MANALANG-DEMIGILLO to pay the costs of suit.

SO ORDERED.
 Republic of the Philippines Secretary, THE DIRECTOR GENERAL OF THE
PHILIPPINE INFORMATION AGENCY and THE NATIONAL
Supreme Court TREASURER,

Baguio City Respondents.

EN BANC

SYLVIA BANDA, CONSORICIA O. PENSON, G.R. No. 166620

O V. PADRIGANO, JEAN R. DE MESA, LEAH P.
CRUZ, ANDY V. MACASAQUIT, SENEN B.
OBA, ALBERT BRILLANTES, GLORIA BISDA,
A V. CONCEPCION, TERESITA G. CARVAJAL,
NNA T. MALIWANAG, RICHARD ODERON, CECILIA
NON, BENEDICTO CABRAL, MA. VICTORIA E.
O, CESAR ANDRA, FELICISIMO GALACIO, ELSA
LMA, FILOMENA A. GALANG, JEAN PAUL
RITO, CLARO G. SANTIAGO, JR., EDUARDO
REYNALDO O. ANDAL, NEPHTALIE IMPERIO,
BALAGTAS, VICTOR R. ORTIZ, FRANCISCO P.
, JR., ELISEO M. BALAGOT, JR., JOSE C.
Present:
ALVE, JR., ARTURO ADSUARA, F.C. LADRERO,
ELSON PADUA, MARCELA C. SAYAO, ANGELITO
KAS, GLORIA RAMENTO, JULIANA SUPLEO,
EL MENDRIQUE, E. TAYLAN, CARMELA BOBIS,
O VARGAS, ROY-LEO C. PABLO, ALLAN
NUEVA, VICENTE R. VELASCO, JR., IMELDA
, FLORIZA M. CATIIS, RANIEL R. BASCO, E. PUNO, C.J.,
LI, MARIO C. CARAAN, DOLORES M. AVIADO,
EL P. LAPLANA, GUILLERMO G. SORIANO, ALICE CARPIO,
JO, ARTHUR G. NARNE, LETICIA SORIANO,
ICO RAMOS, JR., PETERSON CAAMPUED, CORONA,
IO L. GOMEZ, ANTONIO D. GARCIA, JR.,
IO GALO, A. SANCHEZ, SOL E. TAMAYO, CARPIO MORALES,
HINE A.M. COCJIN, DAMIAN QUINTO, JR., EDLYN
NO, M.A. MALANUM, ALFREDO S. ESTRELLA, VELASCO, JR.,
SUS MEL SAYO,
NACHURA,
Petitioners,
LEONARDO-DE CASTRO,

BRION,

PERALTA,
- versus -
BERSAMIN,

DEL CASTILLO,

ABAD,*
DO R. ERMITA, in his capacity as Executive
 VILLARAMA, JR.,

PEREZ, and The NPO was formed on July 25, 1987, during the term of former President Corazon
C. Aquino (President Aquino), by virtue of Executive Order No. 285[1] which provided, among
MENDOZA, JJ. others, the creation of the NPO from the merger of the Government Printing Office and the
relevant printing units of the Philippine Information Agency (PIA).Section 6 of Executive Order
No. 285 reads:

SECTION 6. Creation of the National Printing Office. There is

hereby created a National Printing Office out of the merger of the
Government Printing Office and the relevant printing units of the Philippine
Information Agency. The Office shall have exclusive printing jurisdiction
over the following:

a. Printing, binding and distribution of all standard and

accountable forms of national, provincial, city and municipal governments,
including government corporations;

Promulgated: b. Printing of officials ballots;

c. Printing of public documents such as the Official

Gazette, General Appropriations Act, Philippine Reports, and development
information materials of the Philippine Information Agency.

April 20, 2010

The Office may also accept other government printing jobs,
x--------------------------------------------------x
including government publications, aside from those enumerated above,
but not in an exclusive basis.

DECISION
The details of the organization, powers, functions, authorities,
and related management aspects of the Office shall be provided in the
implementing details which shall be prepared and promulgated in
accordance with Section II of this Executive Order.

LEONARDO-DE CASTRO, J.:

The Office shall be attached to the Philippine Information

Agency.

The present controversy arose from a Petition for Certiorari and prohibition challenging the
constitutionality of Executive Order No. 378 dated October 25, 2004, issued by President Gloria
Macapagal Arroyo (President Arroyo). Petitioners characterize their action as a class suit filed
on their own behalf and on behalf of all their co-employees at the National Printing Office On October 25, 2004, President Arroyo issued the herein assailed Executive Order
(NPO). No. 378, amending Section 6 of Executive Order No. 285 by, inter alia, removing the exclusive
jurisdiction of the NPO over the printing services requirements of government agencies and
instrumentalities. The pertinent portions of Executive Order No. 378, in turn, provide:
SECTION 1. The NPO shall continue to provide printing
services to government agencies and instrumentalities as mandated
by law. However, it shall no longer enjoy exclusive jurisdiction over
the printing services requirements of the government over standard
and accountable forms. It shall have to compete with the private
sector, except in the printing of election paraphernalia which could be
shared with the Bangko Sentral ng Pilipinas, upon the discretion of the
Commission on Elections consistent with the provisions of the Election
Code of 1987.
SECTION 2. Government agencies/instrumentalities may source
printing services outside NPO provided that:
2.1 The printing services to be provided by the private sector is
superior in quality and at a lower cost than what is offered by the NPO; and
2.2 The private printing provider is flexible in terms of meeting
the target completion time of the government agency.
SECTION 3. In the exercise of its functions, the amount to be
appropriated for the programs, projects and activities of the NPO in
the General Appropriations Act (GAA) shall be limited to its income
without additional financial support from the government. (Emphases
and underscoring supplied.)
Pursuant to Executive Order No. 378, government agencies and instrumentalities are
allowed to source their printing services from the private sector through competitive bidding,
subject to the condition that the services offered by the private supplier be of superior quality
and lower in cost compared to what was offered by the NPO. Executive Order No.
378 also limited NPOs appropriation in the General Appropriations Act to its income.
Perceiving Executive Order No. 378 as a threat to their security of tenure as
employees of the NPO, petitioners now challenge its constitutionality, contending that: (1) it is
beyond the executive powers of President Arroyo to amend or repeal Executive Order No.
285 issued by former President Aquino when the latter still exercised legislative powers; and (2)
Executive Order No. 378 violates petitioners security of tenure, because it paves the way for the
gradual abolition of the NPO.
We dismiss the petition.
Before proceeding to resolve the substantive issues, the Court must first delve into a
procedural matter. Since petitioners instituted this case as a class suit, the Court, thus, must
first determine if the petition indeed qualifies as one. In Board of Optometry v. Colet,[2] we held
that [c]ourts must exercise utmost caution before allowing a class suit, which is the exception to
the requirement of joinder of all indispensable parties. For while no difficulty may arise if the
decision secured is favorable to the plaintiffs, a quandary would result if the decision were
otherwise as those who were deemed impleaded by their self-appointed representatives would
certainly claim denial of due process.
Section 12, Rule 3 of the Rules of Court defines a class suit, as follows:
Sec. 12. Class suit. When the subject matter of the controversy
is one of common or general interest to many persons so numerous that it
is impracticable to join all as parties, a number of them which the court
finds to be sufficiently numerous and representative as to fully protect the
interests of all concerned may sue or defend for the benefit of all. Any party
in interest shall have the right to intervene to protect his individual interest.
From the foregoing definition, the requisites of a class suit are: 1) the subject matter
of controversy is one of common or general interest to many persons; 2) the parties affected are
so numerous that it is impracticable to bring them all to court; and 3) the parties bringing the
class suit are sufficiently numerous or representative of the class and can fully protect the
interests of all concerned.
In Mathay v. The Consolidated Bank and Trust Company,[3] the Court held that:
An action does not become a class suit merely because it is designated as
such in the pleadings. Whether the suit is or is not a class suit depends
upon the attending facts, and the complaint, or other pleading initiating
the class action should allege the existence of the necessary facts, to wit,
the existence of a subject matter of common interest, and the existence of a
class and the number of persons in the alleged class, in order that the
court might be enabled to determine whether the members of the class
are so numerous as to make it impracticable to bring them all before
the court, to contrast the number appearing on the record with the
number in the class and to determine whether claimants on record
adequately represent the class and the subject matter of general or
common interest. (Emphases ours.)
 Constitution;[11] thus, only Congress through legislation can validly amend Executive Order No.
285.
Here, the petition failed to state the number of NPO employees who would be
affected by the assailed Executive Order and who were allegedly represented by petitioners.It
was the Solicitor General, as counsel for respondents, who pointed out that there were about
549 employees in the NPO.[4] The 67 petitioners undeniably comprised a small fraction of the Second, petitioners maintain that the issuance of Executive Order No. 378 would
NPO employees whom they claimed to represent. Subsequently, 32 of the original petitioners lead to the eventual abolition of the NPO and would violate the security of tenure of NPO
executed an Affidavit of Desistance, while one signed a letter denying ever signing the employees.
petition,[5] ostensibly reducing the number of petitioners to 34. We note that counsel for the
petitioners challenged the validity of the desistance or withdrawal of some of the petitioners and
insinuated that such desistance was due to pressure from people close to the seat of
power.[6] Still, even if we were to disregard the affidavit of desistance filed by some of the Anent the first ground raised in the petition, we find the same patently without merit.
petitioners, it is highly doubtful that a sufficient, representative number of NPO employees have
instituted this purported class suit. A perusal of the petition itself would show that of the 67
petitioners who signed the Verification/Certification of Non-Forum Shopping, only 20 petitioners
were in fact mentioned in the jurat as having duly subscribed the petition before the notary It is a well-settled principle in jurisprudence that the President has the power to
public. In other words, only 20 petitioners effectively instituted the present case.
reorganize the offices and agencies in the executive department in line with the Presidents
constitutionally granted power of control over executive offices and by virtue of previous
Indeed, in MVRS Publications, Inc. v. Islamic Dawah Council of the Philippines, delegation of the legislative power to reorganize executive offices under existing statutes.
Inc.,[7] we observed that an element of a class suit or representative suit is the adequacy of
representation. In determining the question of fair and adequate representation of members of
a class, the court must consider (a) whether the interest of the named party is coextensive with
the interest of the other members of the class; (b) the proportion of those made a party, as it so
In Buklod ng Kawaning EIIB v. Zamora,[12] the Court pointed out that Executive Order
bears, to the total membership of the class; and (c) any other factor bearing on the ability of the
No. 292 or the Administrative Code of 1987 gives the President continuing authority to
named party to speak for the rest of the class.
reorganize and redefine the functions of the Office of the President. Section 31, Chapter 10,
Title III, Book III of the said Code, is explicit:

Previously, we held in Ibaes v. Roman Catholic Church[8] that where the interests of
the plaintiffs and the other members of the class they seek to represent are diametrically
Sec. 31. Continuing Authority of the President to Reorganize his
opposed, the class suit will not prosper.
Office. The President, subject to the policy in the Executive Office and
in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the following
It is worth mentioning that a Manifestation of Desistance,[9] to which the previously actions:
mentioned Affidavit of Desistance[10] was attached, was filed by the President of the National
Printing Office Workers Association (NAPOWA). The said manifestation expressed NAPOWAs
opposition to the filing of the instant petition in any court. Even if we take into account the
contention of petitioners counsel that the NAPOWA President had no legal standing to file such
(1) Restructure the internal organization
manifestation, the said pleading is a clear indication that there is a divergence of opinions and
of the Office of the President Proper, including the
views among the members of the class sought to be represented, and not all are in favor of
immediate Offices, the President Special
filing the present suit. There is here an apparent conflict between petitioners interests and those
Assistants/Advisers System and the Common Staff
of the persons whom they claim to represent. Since it cannot be said that petitioners sufficiently
Support System, by abolishing, consolidating or
represent the interests of the entire class, the instant case cannot be properly treated as a class
merging units thereof or transferring functions
suit.
from one unit to another;

As to the merits of the case, the petition raises two main grounds to assail the
(2) Transfer any function under the
constitutionality of Executive Order No. 378:
Office of the President to any other Department or
Agency as well as transfer functions to the Office
of the President from other Departments and
Agencies; and
First, it is contended that President Arroyo cannot amend or repeal Executive Order
No. 285 by the mere issuance of another executive order (Executive Order No. 378).Petitioners
maintain that former President Aquinos Executive Order No. 285 is a legislative enactment, as
the same was issued while President Aquino still had legislative powers under the Freedom
 (3) Transfer any agency under the Office
of the President to any other department or
agency as well as transfer agencies to the Office of
the President from other Departments or agencies.
(Emphases ours.)
Interpreting the foregoing provision, we held in Buklod ng Kawaning EIIB, thus:
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does not
have to end here. We must not lose sight of the very source of the power
that which constitutes an express grant of power. Under Section 31, Book
III of Executive Order No. 292 (otherwise known as the Administrative
Code of 1987), the President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have the
continuing authority to reorganize the administrative structure of the Office
of the President. For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. In Canonizado v.
Aguirre [323 SCRA 312 (2000)], we ruled that reorganization involves
the reduction of personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of functions. It takes
place when there is an alteration of the existing structure of
government offices or units therein, including the lines of control,
authority and responsibility between them. The EIIB is a bureau
attached to the Department of Finance. It falls under the Office of the
President. Hence, it is subject to the Presidents continuing authority to
reorganize.[13] (Emphasis ours.)
It is undisputed that the NPO, as an agency that is part of the Office of the Press
Secretary (which in various times has been an agency directly attached to the Office of the
Press Secretary or as an agency under the Philippine Information Agency), is part of the Office
of the President.[14]
Pertinent to the case at bar, Section 31 of the Administrative Code of 1987 quoted
above authorizes the President (a) to restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the President Special Assistants/Advisers
System and the Common Staff Support System, by abolishing, consolidating or merging units
thereof or transferring functions from one unit to another, and (b) to transfer functions or offices
from the Office of the President to any other Department or Agency in the Executive Branch, and
vice versa.
Concomitant to such power to abolish, merge or consolidate offices in the Office of the
President Proper and to transfer functions/offices not only among the offices in the Office of
President Proper but also the rest of the Office of the President and the Executive Branch, the
President implicitly has the power to effect less radical or less substantive changes to the
functional and internal structure of the Office of the President, including the modification of
functions of such executive agencies as the exigencies of the service may require.
In the case at bar, there was neither an abolition of the NPO nor a removal of any of
its functions to be transferred to another agency. Under the assailed Executive Order No. 378,
the NPO remains the main printing arm of the government for all kinds of government forms and
publications but in the interest of greater economy and encouraging efficiency and profitability, it
must now compete with the private sector for certain government printing jobs, with the
exception of election paraphernalia which remains the exclusive responsibility of the NPO,
together with the Bangko Sentral ng Pilipinas, as the Commission on Elections may
determine. At most, there was a mere alteration of the main function of the NPO by limiting the
exclusivity of its printing responsibility to election forms.[15]
There is a view that the reorganization actions that the President may take with
respect to agencies in the Office of the President are strictly limited to transfer of functions and
offices as seemingly provided in Section 31 of the Administrative Code of 1987.
However, Section 20, Chapter 7, Title I, Book III of the same Code significantly
provides:
Sec. 20. Residual Powers. Unless Congress provides otherwise,
the President shall exercise such other powers and functions vested in
the President which are provided for under the laws and which are not
specifically enumerated above, or which are not delegated by the President
in accordance with law. (Emphasis ours.)
Pursuant to Section 20, the power of the President to reorganize the Executive Branch
under Section 31 includes such powers and functions that may be provided for under other
laws. To be sure, an inclusive and broad interpretation of the Presidents power to reorganize
executive offices has been consistently supported by specific provisions in general
appropriations laws.
In the oft-cited Larin v. Executive Secretary,[16] the Court likewise adverted to certain
provisions of Republic Act No. 7645, the general appropriations law for 1993, as among the
statutory bases for the Presidents power to reorganize executive agencies, to wit:
Section 48 of R.A. 7645 provides that:
 Sec. 48. Scaling Down and Phase Out of
Activities of Agencies Within the Executive Branch. The
heads of departments, bureaus and offices and
agencies are hereby directed to identify their respective
activities which are no longer essential in the delivery of
public services and which may be scaled down, phased
out or abolished, subject to civil [service] rules and
regulations. x x x. Actual scaling down, phasing out or
abolition of the activities shall be effected pursuant to
Circulars or Orders issued for the purpose by the Office
of the President.
Said provision clearly mentions the acts of "scaling down, phasing out
and abolition" of offices only and does not cover the creation of
offices or transfer of functions. Nevertheless, the act of creating and
decentralizing is included in the subsequent provision of Section 62,
which provides that:
Sec. 62. Unauthorized organizational
changes. Unless otherwise created by law or directed
by the President of the Philippines, no organizational
unit or changes in key positions in any department or
agency shall be authorized in their respective
organization structures and be funded from
appropriations by this Act.
The foregoing provision evidently shows that the President is
authorized to effect organizational changes including the creation of
offices in the department or agency concerned.
The contention of petitioner that the two provisions are riders deserves
scant consideration. Well settled is the rule that every law has in its favor
the presumption of constitutionality. Unless and until a specific provision of
the law is declared invalid and unconstitutional, the same is valid and
binding for all intents and purposes.[17] (Emphases ours)
Buklod ng Kawaning EIIB v. Zamora,[18] where the Court upheld as valid then
President Joseph Estradas Executive Order No. 191 deactivating the Economic Intelligence and
Investigation Bureau (EIIB) of the Department of Finance, hewed closely to the reasoning
in Larin. The Court, among others, also traced from the General Appropriations Act [19] the
Presidents authority to effect organizational changes in the department or agency under the
executive structure, thus:
We adhere to the precedent or ruling in Larin that this provision recognizes
the authority of the President to effect organizational changes in the
department or agency under the executive structure. Such a ruling further
finds support in Section 78 of Republic Act No. 8760. Under this law, the
heads of departments, bureaus, offices and agencies and other entities in the
Executive Branch are directed (a) to conduct a comprehensive review of their
respective mandates, missions, objectives, functions, programs, projects,
activities and systems and procedures; (b) identify activities which are no
longer essential in the delivery of public services and which may be scaled
down, phased-out or abolished; and (c) adopt measures that will result in
the streamlined organization and improved overall performance of their
respective agencies. Section 78 ends up with the mandate that the actual
streamlining and productivity improvement in agency organization and
operation shall be effected pursuant to Circulars or Orders issued for the
purpose by the Office of the President. x x x.[20] (Emphasis ours)
Notably, in the present case, the 2003 General Appropriations Act, which was
reenacted in 2004 (the year of the issuance of Executive Order No. 378), likewise gave the
President the authority to effect a wide variety of organizational changes in any department or
agency in the Executive Branch. Sections 77 and 78 of said Act provides:
Section 77. Organized Changes. Unless otherwise provided
by law or directed by the President of the Philippines, no changes in
key positions or organizational units in any department or agency shall be
authorized in their respective organizational structures and funded from
appropriations provided by this Act.
Section 78. Institutional Strengthening and Productivity
Improvement in Agency Organization and Operations and Implementation
of Organization/Reorganization Mandated by Law.The Government shall
adopt institutional strengthening and productivity
improvement measures to improve service delivery and enhance
productivity in the government, as directed by the President of
the Philippines. The heads of departments, bureaus, offices, agencies, and
other entities of the Executive Branch shall accordingly conduct a
comprehensive review of their respective mandates, missions, objectives,
functions, programs, projects, activities and systems and procedures;
identify areas where improvements are necessary; and implement
corresponding structural, functional and operational adjustments that
will result in streamlined organization and operations and improved
performance and productivity: PROVIDED, That actual streamlining and
productivity improvements in agency organization and operations, as
authorized by the President of the Philippines for the purpose, including the
utilization of savings generated from such activities, shall be in accordance
with the rules and regulations to be issued by the DBM, upon consultation
with the Presidential Committee on Effective Governance: PROVIDED,
FURTHER, That in the implementation of
organizations/reorganizations, or specific changes in agency
structure, functions and operations as a result of institutional
strengthening or as mandated by law, the appropriation, including the
functions, projects, purposes and activities of agencies concerned
may be realigned as may be necessary: PROVIDED, FINALLY, That any
unexpended balances or savings in appropriations may be made available
for payment of retirement gratuities and separation benefits to affected
personnel, as authorized under existing laws. (Emphases and
underscoring ours.)
 reorganize agencies under the executive department by executive or administrative order is
constitutionally and statutorily recognized. We held in that case:
Implicitly, the aforequoted provisions in the appropriations law recognize the power of
the President to reorganize even executive offices already funded by the said appropriations act,
including the power to implement structural, functional, and operational adjustments in the
executive bureaucracy and, in so doing, modify or realign appropriations of funds as may be
necessary under such reorganization. Thus, insofar as petitioners protest the limitation of the
NPOs appropriations to its own income under Executive Order No. 378, the same is statutorily
authorized by the above provisions.
In the 2003 case of Bagaoisan v. National Tobacco Administration,[21] we upheld the
streamlining of the National Tobacco Administration through a reduction of its personnel and
deemed the same as included in the power of the President to reorganize executive offices
granted under the laws, notwithstanding that such streamlining neither involved an abolition nor
a transfer of functions of an office. To quote the relevant portion of that decision:
In the recent case of Rosa Ligaya C. Domingo, et al. vs. Hon. Ronaldo D.
Zamora, in his capacity as the Executive Secretary, et al., this Court has
had occasion to also delve on the Presidents power to reorganize the Office
of the President under Section 31(2) and (3) of Executive Order No. 292
and the power to reorganize the Office of the President Proper. x x x
xxxx
The first sentence of the law is an express grant to the President of
a continuing authority to reorganize the administrative structure of the Office
of the President. The succeeding numbered paragraphs are not in the
nature of provisos that unduly limit the aim and scope of the grant to
the President of the power to reorganize but are to be viewed in
consonance therewith. Section 31(1) of Executive Order No. 292
specifically refers to the Presidents power to restructure the internal
organization of the Office of the President Proper, by abolishing,
consolidating or merging units hereof or transferring functions from one unit
to another, while Section 31(2) and (3) concern executive offices outside the
Office of the President Properallowing the President to transfer any function
under the Office of the President to any other Department or Agency
and vice-versa, and the transfer of any agency under the Office of the
President to any other department or agency and vice-versa.
In the present instance, involving neither an abolition nor
transfer of offices, the assailed action is a mere reorganization under
the general provisions of the law consisting mainly of streamlining the
NTA in the interest of simplicity, economy and efficiency. It is an act
well within the authority of the President motivated and carried out,
according to the findings of the appellate court, in good faith, a factual
assessment that this Court could only but accept. [22] (Emphases and
underscoring supplied.)
In the more recent case of Tondo Medical Center Employees Association v. Court of
Appeals,[23] which involved a structural and functional reorganization of the Department of
Health under an executive order, we reiterated the principle that the power of the President to
This Court has already ruled in a number of cases that the
President may, by executive or administrative order, direct the
reorganization of government entities under the Executive
Department. This is also sanctioned under the Constitution, as well as
other statutes.
Section 17, Article VII of the 1987 Constitution, clearly
states: [T]he president shall have control of all executive departments,
bureaus and offices. Section 31, Book III, Chapter 10 of Executive Order
No. 292, also known as the Administrative Code of 1987 reads:
SEC. 31. Continuing Authority of the
President to Reorganize his Office - The President,
subject to the policy in the Executive Office and in order
to achieve simplicity, economy and efficiency, shall
have continuing authority to reorganize the
administrative structure of the Office of the
President. For this purpose, he may take any of the
following actions:
xxxx
In Domingo v. Zamora [445 Phil. 7 (2003)], this Court explained
the rationale behind the Presidents continuing authority under the
Administrative Code to reorganize the administrative structure of the Office
of the President. The law grants the President the power to reorganize
the Office of the President in recognition of the recurring need of every
President to reorganize his or her office to achieve simplicity,
economy and efficiency. To remain effective and efficient, it must be
capable of being shaped and reshaped by the President in the manner the
Chief Executive deems fit to carry out presidential directives and policies.
The Administrative Code provides that the Office of the President consists
of the Office of the President Proper and the agencies under it. The
agencies under the Office of the President are identified in Section 23,
Chapter 8, Title II of the Administrative Code:
Sec. 23. The Agencies under the Office of the
President.The agencies under the Office of the
President refer to those offices placed under the
 chairmanship of the President, those under the
supervision and control of the President, those
under the administrative supervision of the Office of the
President, those attached to it for policy and program
coordination, and those that are not placed by law or
order creating them under any specific department.
xxxx
The power of the President to reorganize the executive department
is likewise recognized in general appropriations laws. x x x.
xxxx
Clearly, Executive Order No. 102 is well within the constitutional power of
the President to issue. The President did not usurp any legislative
prerogative in issuing Executive Order No. 102. It is an exercise of the
Presidents constitutional power of control over the executive
department, supported by the provisions of the Administrative Code,
recognized by other statutes, and consistently affirmed by this
Court.[24] (Emphases supplied.)
Subsequently, we ruled in Anak Mindanao Party-List Group v. Executive Secretary[25] that:
The Constitutions express grant of the power of control in the President
justifies an executive action to carry out reorganization measures under a
broad authority of law.
In enacting a statute, the legislature is presumed to have deliberated
with full knowledge of all existing laws and jurisprudence on the subject. It
is thus reasonable to conclude that in passing a statute which places an
agency under the Office of the President, it was in accordance with existing
laws and jurisprudence on the Presidents power to reorganize.
In establishing an executive department, bureau or office, the
legislature necessarily ordains an executive agencys position in the scheme
of administrative structure. Such determination is primary, but subject to the
Presidents continuing authority to reorganize the administrative
structure. As far as bureaus, agencies or offices in the executive department
are concerned, the power of control may justify the President to deactivate
the functions of a particular office. Or a law may expressly grant the
President the broad authority to carry out reorganization measures. The
Administrative Code of 1987 is one such law.[26]
The issuance of Executive Order No. 378 by President Arroyo is an exercise of a
delegated legislative power granted by the aforementioned Section 31, Chapter 10, Title III,
Book III of the Administrative Code of 1987, which provides for the continuing authority of the
President to reorganize the Office of the President, in order to achieve simplicity, economy and
efficiency. This is a matter already well-entrenched in jurisprudence. The reorganization of such
an office through executive or administrative order is also recognized in the Administrative Code
of 1987. Sections 2 and 3, Chapter 2, Title I, Book III of the said Code provide:
Sec. 2. Executive Orders. - Acts of the President providing for rules of a
general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated
in executive orders.
Sec. 3. Administrative Orders. - Acts of the President which relate to
particular aspects of governmental operations in pursuance of his duties
as administrative head shall be promulgated in administrative orders.
(Emphases supplied.)
To reiterate, we find nothing objectionable in the provision in Executive Order No. 378
limiting the appropriation of the NPO to its own income. Beginning with Larin and in subsequent
cases, the Court has noted certain provisions in the general appropriations laws as likewise
reflecting the power of the President to reorganize executive offices or agencies even to the
extent of modifying and realigning appropriations for that purpose.
Petitioners contention that the issuance of Executive Order No. 378 is an invalid
exercise of legislative power on the part of the President has no legal leg to stand on.
In all, Executive Order No. 378, which purports to institute necessary reforms in
government in order to improve and upgrade efficiency in the delivery of public services by
redefining the functions of the NPO and limiting its funding to its own income and to transform it
into a self-reliant agency able to compete with the private sector, is well within the prerogative of
President Arroyo under her continuing delegated legislative power to reorganize her own
office. As pointed out in the separate concurring opinion of our learned colleague, Associate
Justice Antonio T. Carpio, the objective behind Executive Order No. 378 is wholly consistent
with the state policy contained in Republic Act No. 9184 or the Government Procurement
Reform Act to encourage competitiveness by extending equal opportunity to private contracting
parties who are eligible and qualified.[27]
To be very clear, this delegated legislative power to reorganize pertains only to the
Office of the President and the departments, offices and agencies of the executive branch and
does not include the Judiciary, the Legislature or the constitutionally-created or mandated
bodies. Moreover, it must be stressed that the exercise by the President of the power to
reorganize the executive department must be in accordance with the Constitution, relevant laws
and prevailing jurisprudence.
A careful review of the records will show that petitioners utterly failed to substantiate
their claim. They failed to allege, much less prove, sufficient facts to show that the limitation of
the NPOs budget to its own income would indeed lead to the abolition of the position, or
removal from office, of any employee. Neither did petitioners present any shred of proof of their
assertion that the changes in the functions of the NPO were for political considerations that had
nothing to do with improving the efficiency of, or encouraging operational economy in, the said
agency.

In sum, the Court finds that the petition failed to show any constitutional infirmity or
grave abuse of discretion amounting to lack or excess of jurisdiction in President Arroyos
In this regard, we are mindful of the previous pronouncement of this Court in Dario v. issuance of Executive Order No. 378.
Mison[28] that:

Reorganizations in this jurisdiction have been regarded as

valid provided they are pursued in good faith. As a general rule, a WHEREFORE, the petition is hereby DISMISSED and the prayer for a Temporary
reorganization is carried out in good faith if it is for the purpose of economy Restraining Order and/or a Writ of Preliminary Injunction is hereby DENIED. No costs.
or to make bureaucracy more efficient. In that event, no dismissal (in case
of a dismissal) or separation actually occurs because the position itself
ceases to exist. And in that case, security of tenure would not be a Chinese
wall. Be that as it may, if the abolition, which is nothing else but a separation SO ORDERED.
or removal, is done for political reasons or purposely to defeat security of
tenure, or otherwise not in good faith, no valid abolition takes place and
whatever abolition is done, is void ab initio. There is an invalid abolition as
where there is merely a change of nomenclature of positions, or where
claims of economy are belied by the existence of ample funds. (Emphasis
ours.)

Stated alternatively, the presidential power to reorganize agencies and offices in

the executive branch of government is subject to the condition that such reorganization is
carried out in good faith.

If the reorganization is done in good faith, the abolition of positions, which results in
loss of security of tenure of affected government employees, would be valid. In Buklod ng
Kawaning EIIB v. Zamora,[29] we even observed that there was no such thing as an absolute
right to hold office. Except those who hold constitutional offices, which provide for special
immunity as regards salary and tenure, no one can be said to have any vested right to an office
or salary.[30]

This brings us to the second ground raised in the petition that Executive Order No.
378, in allowing government agencies to secure their printing requirements from the private
sector and in limiting the budget of the NPO to its income, will purportedly lead to the gradual
abolition of the NPO and the loss of security of tenure of its present employees. In other words,
petitioners avow that the reorganization of the NPO under Executive Order No. 378 is tainted
with bad faith. The basic evidentiary rule is that he who asserts a fact or the affirmative of an
issue has the burden of proving it.[31]
 EN BANC
[G.R. No. 142801-802. July 10, 2001]
BUKLOD NG KAWANING EIIB, CESAR POSADA, REMEDIOS G. PRINCESA, BENJAMIN
KHO, BENIGNO MANGA, LULU MENDOZA, petitioners, vs. HON. EXECUTIVE
SECRETARY RONALDO B. ZAMORA, HON. SECRETARY JOSE PARDO,
DEPARTMENT OF FINANCE, HON. SECRETARY BENJAMIN DIOKNO,
DEPARTMENT OF BUDGET AND MANAGEMENT, HON. SECRETARY ARTEMIO
TUQUERO, DEPARTMENT OF JUSTICE, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
In this petition for certiorari, prohibition and mandamus, petitioners Buklod Ng Kawaning
EIIB, Cesar Posada, Remedios Princesa, Benjamin Kho, Benigno Manga and Lulu Mendoza, for
themselves and in behalf of others with whom they share a common or general interest, seek
the nullification of Executive Order No. 191[1] and Executive Order No. 223[2] on the ground
that they were issued by the Office of the President with grave abuse of discretion and in
violation of their constitutional right to security of tenure.
The facts are undisputed:
On June 30, 1987, former President Corazon C. Aquino, issued Executive Order No.
127[3] establishing the Economic Intelligence and Investigation Bureau (EIIB) as part of the
structural organization of the Ministry of Finance.[4] The EIIB was designated to perform the
following functions:
(a) Receive, gather and evaluate intelligence reports and information and evidence on the
nature, modes and extent of illegal activities affecting the national economy, such as, but
not limited to, economic sabotage, smuggling, tax evasion, and dollar-salting, investigate
the same and aid in the prosecution of cases;
(b) Coordinate with external agencies in monitoring the financial and economic activities of
persons or entities, whether domestic or foreign, which may adversely affect national
financial interest with the goal of regulating, controlling or preventing said activities;
(c) Provide all intelligence units of operating Bureaus or Offices under the Ministry with the
general framework and guidelines in the conduct of intelligence and investigating works;
(d) Supervise, monitor and coordinate all the intelligence and investigation operations of
the operating Bureaus and Offices under the Ministry;
(e) Investigate, hear and file, upon clearance by the Minister, anti-graft and corruption
cases against personnel of the Ministry and its constituents units;
(f) Perform such other appropriate functions as may be assigned by the Minister or his
deputies.[5]
In a desire to achieve harmony of efforts and to prevent possible conflicts among agencies
in the course of their anti-smuggling operations, President Aquino issued Memorandum Order
No. 225 on March 17, 1989, providing, among others, that the EIIB shall be the agency of
primary responsibility for anti-smuggling operations in all land areas and inland waters and
waterways outside the areas of sole jurisdiction of the Bureau of Customs. [6]
Eleven years after, or on January 7, 2000, President Joseph Estrada issued Executive
Order No. 191 entitled Deactivation of the Economic Intelligence and Investigation
Bureau.[7] Motivated by the fact that the designated functions of the EIIB are also being
performed by the other existing agencies of the government and that there is a need to
constantly monitor the overlapping of functions among these agencies, former President Estrada
ordered the deactivation of EIIB and the transfer of its functions to the Bureau of Customs and
the National Bureau of Investigation.
Meanwhile, President Estrada issued Executive Order No. 196[8] creating the Presidential
Anti-Smuggling Task Force Aduana.[9]
Then the day feared by the EIIB employees came. On March 29, 2000, President Estrada
issued Executive Order No. 223[10] providing that all EIIB personnel occupying positions
specified therein shall be deemed separated from the service effective April 30, 2000, pursuant
to a bona fide reorganization resulting to abolition, redundancy, merger, division, or
consolidation of positions.[11]
Agonizing over the loss of their employment, petitioners now come before this Court
invoking our power of judicial review of Executive Order Nos. 191 and 223. They anchor their
petition on the following arguments:
A
Executive Order Nos. 191 and 223 should be annulled as they are unconstitutional for
being violative of Section 2(3), Article IX-B of the Philippine Constitution and/or for having
been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
B.
The abolition of the EIIB is a hoax. Similarly, if Executive Order Nos. 191 and 223 are
considered to effect a reorganization of the EIIB, such reorganization was made in bad
faith.
C.
The President has no authority to abolish the EIIB.
Petitioners contend that the issuance of the afore-mentioned executive orders is: (a) a
violation of their right to security of tenure; (b) tainted with bad faith as they were not actually
intended to make the bureaucracy more efficient but to give way to Task Force Aduana, the
functions of which are essentially and substantially the same as that of EIIB; and (c) a
usurpation of the power of Congress to decide whether or not to abolish the EIIB.
Arguing in behalf of respondents, the Solicitor General maintains that: (a) the President
enjoys the totality of the executive power provided under Sections 1 and 7, Article VII of the
Constitution, thus, he has the authority to issue Executive Order Nos. 191 and 223; (b) the said
executive orders were issued in the interest of national economy, to avoid duplicity of work and
to streamline the functions of the bureaucracy; and (c) the EIIB was not abolished, it was
only deactivated.
The petition is bereft of merit.
Despite the presence of some procedural flaws in the instant petition, such as, petitioners
disregard of the hierarchy of courts and the non-exhaustion of administrative remedies, we deem
it necessary to address the issues. It is in the interest of the State that questions relating to the
status and existence of a public office be settled without delay. We are not without
precedent. In Dario v. Mison,[12] we liberally decreed:
The Court disregards the questions raised as to procedure, failure to exhaust administrative
remedies, the standing of certain parties to sue, for two reasons, `[b]ecause of the demands of
public interest, including the need for stability in the public service,' and because of the
serious implications of these cases on the administration of the Philippine civil service and the
rights of public servants.
At first glance, it seems that the resolution of this case hinges on the question - Does the
deactivation of EIIB constitute abolition of an office? However, after coming to terms with the
prevailing law and jurisprudence, we are certain that the ultimate queries should be a) Does the
President have the authority to reorganize the executive department? and, b) How should the
reorganization be carried out?
Surely, there exists a distinction between the words deactivate and abolish.
To deactivate means to render inactive or ineffective or to break up by discharging or
reassigning personnel,[13] while to abolish means to do away with, to annul, abrogate or destroy
completely.[14] In essence, abolition denotes an intention to do away with the
office wholly and permanently.[15] Thus, while in abolition, the office ceases to exist, the same is
not true in deactivation where the office continues to exist, albeit remaining dormant or
inoperative. Be that as it may, deactivation and abolition are both reorganization measures.
The Solicitor General only invokes the above distinctions on the mistaken assumption that
the President has no power to abolish an office.
The general rule has always been that the power to abolish a public office is lodged with
the legislature.[16] This proceeds from the legal precept that the power to create includes the
power to destroy. A public office is either created by the Constitution, by statute, or by authority
of law.[17] Thus, except where the office was created by the Constitution itself, it may be
abolished by the same legislature that brought it into existence. [18]
The exception, however, is that as far as bureaus, agencies or offices in the executive
department are concerned, the Presidents power of control may justify him to inactivate the
functions of a particular office,[19] or certain laws may grant him the broad authority to carry out
reorganization measures.[20] The case in point is Larin v. Executive Secretary.[21] In this case, it
was argued that there is no law which empowers the President to reorganize the BIR. In
decreeing otherwise, this Court sustained the following legal basis, thus:
Initially, it is argued that there is no law yet which empowers the President to issue E.O. No. 132
or to reorganize the BIR.
We do not agree.
xxxxxx
Section 48 of R.A. 7645 provides that:
Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the Executive Branch.
The heads of departments, bureaus and offices and agencies are hereby directed to identify
their respective activities which are no longer essential in the delivery of public services and
which may be scaled down, phased out or abolished, subject to civil service rules and
regulations. X x x. Actual scaling down, phasing out or abolition of the activities shall be effected
pursuant to Circulars or Orders issued for the purpose by the Office of the President.
Said provision clearly mentions the acts of scaling down, phasing out and abolition of offices
only and does not cover the creation of offices or transfer of functions. Nevertheless, the act of
creating and decentralizing is included in the subsequent provision of Section 62 which provides
that:
Sec. 62. Unauthorized organizational charges.- Unless otherwise created by law or directed by
the President of the Philippines, no organizational unit or changes in key positions in any
department or agency shall be authorized in their respective organization structures and be
funded from appropriations by this Act. (italics ours)
The foregoing provision evidently shows that the President is authorized to effect
organizational changes including the creation of offices in the department or agency
concerned.
xxxxxx
Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:
Sec. 20. Residual Powers. Unless Congress provides otherwise, the President shall
exercise such other powers and functions vested in the President which are provided for under
the laws and which are not specifically enumerated above or which are not delegated by the
President in accordance with law. (italic ours)
This provision speaks of such other powers vested in the President under the law. What
law then gives him the power to reorganize? It is Presidential Decree No. 1772 which
amended Presidential Decree No. 1416. These decrees expressly grant the President of
the Philippines the continuing authority to reorganize the national government, which
includes the power to group, consolidate bureaus and agencies, to abolish offices, to
transfer functions, to create and classify functions, services and activities and to
standardize salaries and materials. The validity of these two decrees are unquestionable. The
1987 Constitution clearly provides that all laws, decrees, executive orders, proclamations, letters
of instructions and other executive issuances not inconsistent with this Constitution shall remain
operative until amended, repealed or revoked. So far, there is yet no law amending or repealing
said decrees. (Emphasis supplied)
Now, let us take a look at the assailed executive order.
In the whereas clause of E.O. No. 191, former President Estrada anchored his authority to
deactivate EIIB on Section 77 of Republic Act 8745 (FY 1999 General Appropriations Act), a
provision similar to Section 62 of R.A. 7645 quoted in Larin, thus;
Sec. 77. Organized Changes. Unless otherwise provided by law or directed by the President
of the Philippines, no changes in key positions or organizational units in any department or
agency shall be authorized in their respective organizational structures and funded from
appropriations provided by this Act.
We adhere to the precedent or ruling in Larin that this provision recognizes the authority of
the President to effect organizational changes in the department or agency under the executive
structure. Such a ruling further finds support in Section 78 of Republic Act No. 8760.[22] Under
this law, the heads of departments, bureaus, offices and agencies and other entities in the
Executive Branch are directed (a) to conduct a comprehensive review of their respective
mandates, missions, objectives, functions, programs, projects, activities and systems and
procedures; (b) identify activities which are no longer essential in the delivery of public services
and which may be scaled down, phased-out or abolished; and (c) adopt measures that will result
in the streamlined organization and improved overall performance of their respective
agencies.[23] Section 78 ends up with the mandate that the actual streamlining and productivity
improvement in agency organization and operation shall be effected pursuant to Circulars or
Orders issued for the purpose by the Office of the President.[24] The law has spoken
clearly. We are left only with the duty to sustain.
But of course, the list of legal basis authorizing the President to reorganize any
department or agency in the executive branch does not have to end here. We must not lose
sight of the very source of the power that which constitutes an express grant of power. Under
Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of
1987), the President, subject to the policy in the Executive Office and in order to
achieve simplicity, economy and efficiency, shall have the continuing authority to
reorganize the administrative structure of the Office of the President. For this purpose, he
may transfer the functions of other Departments or Agencies to the Office of the
President. In Canonizado v. Aguirre,[25] we ruled that reorganization involves the reduction of
personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions. It takes place when there is an alteration of the existing structure of
government offices or units therein, including the lines of control, authority and responsibility
between them. The EIIB is a bureau attached to the Department of Finance.[26] It falls under the
Office of the President. Hence, it is subject to the Presidents continuing authority to reorganize.
It having been duly established that the President has the authority to carry out
reorganization in any branch or agency of the executive department, what is then left for us to
resolve is whether or not the reorganization is valid. In this jurisdiction, reorganizations have
been regarded as valid provided they are pursued in good faith. Reorganization is carried out in
good faith if it is for the purpose of economy or to make bureaucracy more
efficient.[27] Pertinently, Republic Act No. 6656[28] provides for the circumstances which may be
considered as evidence of bad faith in the removal of civil service employees made as a result of
reorganization, to wit: (a) where there is a significant increase in the number of positions in the
new staffing pattern of the department or agency concerned; (b) where an office is abolished
and another performing substantially the same functions is created; (c) where incumbents are
replaced by those less qualified in terms of status of appointment, performance and
merit; (d) where there is a classification of offices in the department or agency concerned and
the reclassified offices perform substantially the same functions as the original offices,
and (e) where the removal violates the order of separation.[29]
Petitioners claim that the deactivation of EIIB was done in bad faith because four days
after its deactivation, President Estrada created the Task Force Aduana.
We are not convinced.
An examination of the pertinent Executive Orders[30] shows that the deactivation of EIIB
and the creation of Task Force Aduana were done in good faith. It was not for the purpose of
removing the EIIB employees, but to achieve the ultimate purpose of E.O. No. 191, which is
economy. While Task Force Aduana was created to take the place of EIIB, its creation does not
entail expense to the government.
Firstly, there is no employment of new personnel to man the Task Force. E.O. No.
196 provides that the technical, administrative and special staffs of EIIB are to be
composed of people who are already in the public service, they being employees of other
existing agencies. Their tenure with the Task Force would only be temporary, i.e., only
when the agency where they belong is called upon to assist the Task Force. Since their
employment with the Task force is only by way of detail or assignment, they retain their
employment with the existing agencies. And should the need for them cease, they would
be sent back to the agency concerned.
Secondly, the thrust of E.O. No. 196 is to have a small group of military men under the
direct control and supervision of the President as base of the governments anti-smuggling
campaign. Such a smaller base has the necessary powers 1) to enlist the assistance of any
department, bureau, or office and to use their respective personnel, facilities and resources;
and 2) to select and recruit personnel from within the PSG and ISAFP for assignment to the
Task Force. Obviously, the idea is to encourage the utilization of personnel, facilities and
resources of the already existing departments, agencies, bureaus, etc., instead of
maintaining an independent office with a whole set of personnel and facilities. The EIIB
had proven itself burdensome for the government because it maintained separate offices in
every region in the Philippines.
And thirdly, it is evident from the yearly budget appropriation of the government that the
creation of the Task Force Aduana was especially intended to lessen EIIBs expenses. Tracing
from the yearly General Appropriations Act, it appears that the allotted amount for the EIIBs
general administration, support, and operations for the year 1995, was P128,031,000;[31] for
1996, P182,156,000;[32] for 1998, P219,889,000;[33] and, for
1999, P238,743,000.[34] These amounts were far above the P50,000,000[35] allocation to the
Task Force Aduana for the year 2000.
While basically, the functions of the EIIB have devolved upon the Task Force Aduana, we
find the latter to have additional new powers. The Task Force Aduana, being composed of
elements from the Presidential Security Group (PSG) and Intelligence Service Armed Forces of
the Philippines (ISAFP),[36] has the essential power to effect searches, seizures and arrests. The
EIIB did not have this power. The Task Force Aduana has the power to enlist the assistance of
any department, bureau, office, or instrumentality of the government, including government-
owned or controlled corporations; and to use their personnel, facilities and resources. Again, the
EIIB did not have this power. And, the Task Force Aduana has the additional authority to
conduct investigation of cases involving ill-gotten wealth. This was not expressly granted to the
EIIB.
Consequently, it cannot be said that there is a feigned reorganization. In Blaquera v. Civil
Sevice Commission, [37] we ruled that a reorganization in good faith is one designed to trim the
fat off the bureaucracy and institute economy and greater efficiency in its operation.
Lastly, we hold that petitioners right to security of tenure is not violated. Nothing is better
settled in our law than that the abolition of an office within the competence of a legitimate body if
done in good faith suffers from no infirmity. Valid abolition of offices is neither removal nor
separation of the incumbents.[38] In the instructive words laid down by this Court in Dario v.
Mison,[39] through Justice Abraham F. Sarmiento:
Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in
good faith. As a general rule, a reorganization is carried out in good faith if it is for the purpose of
economy or to make bureaucracy more efficient. In that event, no dismissal (in case of
dismissal) or separation actually occurs because the position itself ceases to exist. And
in that case, security of tenure would not be a Chinese wall. Be that as it may, if the
abolition, which is nothing else but a separation or removal, is done for political reasons or
purposely to defeat security of tenure, otherwise not in good faith, no valid abolition takes and
whatever abolition is done, is void ab initio. There is an invalid abolition as where there is merely
a change of nomenclature of positions, or where claims of economy are belied by the existence
of ample funds.
Indeed, there is no such thing as an absolute right to hold office. Except constitutional
offices which provide for special immunity as regards salary and tenure, no one can be said to
have any vested right in an office or its salary.[40]
While we cast a commiserating look upon the plight of all the EIIB employees whose lives
perhaps are now torn with uncertainties, we cannot ignore the unfortunate reality that our
government is also battling the impact of a plummeting economy. Unless the government is
given the chance to recuperate by instituting economy and efficiency in its system, the EIIB will
not be the last agency to suffer the impact. We cannot frustrate valid measures which are
designed to rebuild the executive department.
WHEREFORE, the petition is hereby DENIED. No costs.
SO ORDERED.
 Republic of the Philippines Executive Secretary for Legal Affairs (ODESLA), more particularly to its newly-established
SUPREME COURT Investigative and Adjudicatory Division (IAD). The full text of the assailed executive order reads:
Manila
EXECUTIVE ORDER NO. 13
EN BANC
ABOLISHING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND TRANSFERRING ITS
G.R. No. 196425 July 24, 2012 INVESTIGATIVE, ADJUDICATORY AND RECOMMENDATORY FUNCTIONS TO THE OFFICE
OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, OFFICE OF THE
PROSPERO A. PICHAY, JR., Petitioner, PRESIDENT
vs.
OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS WHEREAS, this administration has a continuing mandate and advocacy to fight and eradicate
INVESTIGATIVE AND ADJUDICATORY DIVISION, HON. PAQUITO N. OCHOA, JR., in his corruption in the different departments, bureaus, offices and other government agencies and
capacity as Executive Secretary, and HON. CESAR V. PURISIMA, in his capacity as instrumentalities;
Secretary of Finance, and as an ex-officio member of the Monetary Board, Respondents.
WHEREAS, the government adopted a policy of streamlining the government bureaucracy to
DECISION promote economy and efficiency in government;

PERLAS-BERNABE, J.:
The Case
This is a Petition for Certiorari and Prohibition with a prayer for the issuance of a temporary
restraining order, seeking to declare as unconstitutional Executive Order No. 13, entitled,
"Abolishing the Presidential Anti-Graft Commission and Transferring Its Investigative,
Adjudicatory and Recommendatory Functions to the Office Of The Deputy Executive Secretary
For Legal Affairs, Office of the President",1 and to permanently prohibit respondents from
administratively proceeding against petitioner on the strength of the assailed executive order.
The Facts
On April 16, 2001, then President Gloria Macapagal-Arroyo issued Executive Order No. 12 (E.O.
12) creating the Presidential Anti-Graft Commission (PAGC) and vesting it with the power to
investigate or hear administrative cases or complaints for possible graft and corruption, among
others, against presidential appointees and to submit its report and recommendations to the
President. Pertinent portions of E.O. 12 provide:
WHEREAS, Section VII of the 1987 Philippine Constitution provides that the President shall
have control of all the executive departments, bureaus and offices;
WHEREAS, Section 31 Chapter 10, Title III, Book III of Executive Order 292 (Administrative
Code of 1987) provides for the continuing authority of the President to reorganize the
administrative structure of the Office of the President;
WHEREAS, Presidential Decree (PD) No. 1416 (Granting Continuing Authority to the President
of the Philippines to Reorganize the National Government), as amended by PD 1722, provides
that the President of the Philippines shall have continuing authority to reorganize the
administrative structure of the National Government and may, at his discretion, create, abolish,
group, consolidate, merge or integrate entities, agencies, instrumentalities and units of the
National Government, as well as, expand, amend, change or otherwise modify their powers,
functions and authorities;
WHEREAS, Section 78 of the General Provisions of Republic Act No. 9970 (General
Appropriations Act of 2010) authorizes the President of the Philippines to direct changes in the
organizational units or key positions in any department or agency;

Section 4. Jurisdiction, Powers and Functions. – NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the Philippines, by virtue of the
powers vested in me by law, do hereby order the following:
(a) x x x xxx xxx
SECTION 1. Declaration of Policy. It is the policy of the government to fight and eradicate graft
(b) The Commission, acting as a collegial body, shall have the authority to investigate or hear and corruption in the different departments, bureaus, offices and other government agencies and
administrative cases or complaints against all presidential appointees in the government and any instrumentalities.
of its agencies or instrumentalities xxx
The government adopted a policy of streamlining the government bureaucracy to promote
xxx xxx xxx economy and efficiency in the government.

xxx xxx xxx
Section 8. Submission of Report and Recommendations. – After completing its investigation or
hearing, the Commission en banc shall submit its report and recommendations to the President.
The report and recommendations shall state, among others, the factual findings and legal
conclusions, as well as the penalty recommend (sic) to be imposed or such other action that
may be taken."
On November 15, 2010, President Benigno Simeon Aquino III issued Executive Order No. 13
(E.O. 13), abolishing the PAGC and transferring its functions to the Office of the Deputy
SECTION 2. Abolition of Presidential Anti-Graft Commission (PAGC). To enable the Office of the
President (OP) to directly investigate graft and corrupt cases of Presidential appointees in the
Executive Department including heads of government-owned and controlled corporations, the
Presidential Anti-Graft Commission (PAGC) is hereby abolished and their vital functions and
other powers and functions inherent or incidental thereto, transferred to the Office of the Deputy
Executive Secretary for Legal Affairs (ODESLA), OP in accordance with the provisions of this
Executive Order.
SECTION 3. Restructuring of the Office of the Deputy Executive Secretary for Legal Affairs, OP.
In addition to the Legal and Legislative Divisions of the ODESLA, the Investigative and
Adjudicatory Division shall be created.
The newly created Investigative and Adjudicatory Division shall perform powers, functions and
duties mentioned in Section 2 hereof, of PAGC.
The Deputy Executive Secretary for Legal Affairs (DESLA) will be the recommending authority to
the President, thru the Executive Secretary, for approval, adoption or modification of the report
and recommendations of the Investigative and Adjudicatory Division of ODESLA.
SECTION 4. Personnel Who May Be Affected By the Abolition of PAGC. The personnel who
may be affected by the abolition of the PAGC shall be allowed to avail of the benefits provided
under existing laws if applicable. The Department of Budget and Management (DBM) is hereby
ordered to release the necessary funds for the benefits of the employees.
SECTION 5. Winding Up of the Operation and Disposition of the Functions, Positions,
Personnel, Assets and Liabilities of PAGC. The winding up of the operations of PAGC including
the final disposition or transfer of their functions, positions, personnel, assets and liabilities as
may be necessary, shall be in accordance with the applicable provision(s) of the Rules and
Regulations Implementing EO 72 (Rationalizing the Agencies Under or Attached to the Office of
the President) dated March 15, 2002. The winding up shall be implemented not later than 31
December 2010.
The Office of the Executive Secretary, with the assistance of the Department of Budget and
Management, shall ensure the smooth and efficient implementation of the dispositive actions
and winding-up of the activities of PAGC.
SECTION 6. Repealing Clause. All executive orders, rules, regulations and other issuances or
parts thereof, which are inconsistent with the provisions of this Executive Order, are hereby
revoked or modified accordingly.
SECTION 7. Effectivity. This Executive Order shall take effect immediately after its publication in
a newspaper of general circulation.
On April 6, 2011, respondent Finance Secretary Cesar V. Purisima filed before the IAD-ODESLA
a complaint affidavit2 for grave misconduct against petitioner Prospero A. Pichay, Jr., Chairman
of the Board of Trustees of the Local Water Utilities Administration (LWUA), as well as the
incumbent members of the LWUA Board of Trustees, namely, Renato Velasco, Susana Dumlao
Vargas, Bonifacio Mario M. Pena, Sr. and Daniel Landingin, which arose from the purchase by
the LWUA of Four Hundred Forty-Five Thousand Three Hundred Seventy Seven (445,377)
shares of stock of Express Savings Bank, Inc.
On April 14, 2011, petitioner received an Order3 signed by Executive Secretary Paquito N.
Ochoa, Jr. requiring him and his co-respondents to submit their respective written explanations
under oath. In compliance therewith, petitioner filed a Motion to Dismiss Ex Abundante Ad
Cautelam manifesting that a case involving the same transaction and charge of grave
misconduct entitled, "Rustico B. Tutol, et al. v. Prospero Pichay, et al.", and docketed as OMB-
C-A-10-0426-I, is already pending before the Office of the Ombudsman.
Now alleging that no other plain, speedy and adequate remedy is available to him in the ordinary
course of law, petitioner has resorted to the instant petition for certiorari and prohibition upon the
following grounds:
I. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF THE
LEGISLATURE TO CREATE A PUBLIC OFFICE.
II. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF THE
LEGISLATURE TO APPROPRIATE FUNDS.
III. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF
CONGRESS TO DELEGATE QUASI-JUDICIAL POWERS TO ADMINISTRATIVE
AGENCIES.
IV. E.O. 13 IS UNCONSTITUTIONAL FOR ENCROACHING UPON THE POWERS
OF THE OMBUDSMAN.
V. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE GUARANTEE OF DUE
PROCESS.
VI. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE EQUAL PROTECTION
CLAUSE.
Our Ruling
In assailing the constitutionality of E.O. 13, petitioner asseverates that the President is not
authorized under any existing law to create the Investigative and Adjudicatory Division, Office of
the Deputy Executive Secretary for Legal Affairs (IAD-ODESLA) and that by creating a new,
additional and distinct office tasked with quasi-judicial functions, the President has not only
usurped the powers of congress to create a public office, appropriate funds and delegate quasi-
judicial functions to administrative agencies but has also encroached upon the powers of the
Ombudsman. Petitioner avers that the unconstitutionality of E.O. 13 is also evident when
weighed against the due process requirement and equal protection clause under the 1987
Constitution.
The contentions are unavailing.
The President has Continuing Authority to Reorganize the Executive Department under E.O.
292.
Section 31 of Executive Order No. 292 (E.O. 292), otherwise known as the Administrative Code
of 1987, vests in the President the continuing authority to reorganize the offices under him in
order to achieve simplicity, economy and efficiency. E.O. 292 sanctions the following actions
undertaken for such purpose:
(1)Restructure the internal organization of the Office of the President Proper, including
the immediate Offices, the Presidential Special Assistants/Advisers System and the
Common Staff Support System, by abolishing, consolidating, or merging units thereof
or transferring functions from one unit to another;
(2)Transfer any function under the Office of the President to any other Department or
Agency as well as transfer functions to the Office of the President from other
Departments and Agencies; and
(3)Transfer any agency under the Office of the President to any other Department or
Agency as well as transfer agencies to the Office of the President from other
departments or agencies.4
In the case of Buklod ng Kawaning EIIB v. Zamora5 the Court affirmed that the President's
authority to carry out a reorganization in any branch or agency of the executive department is an
express grant by the legislature by virtue of E.O. 292, thus:
But of course, the list of legal basis authorizing the President to reorganize any department or
agency in the executive branch does not have to end here. We must not lose sight of the very
source of the power – that which constitutes an express grant of power. Under Section 31, Book
III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the
President, subject to the policy of the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have the continuing authority to reorganize the administrative
structure of the Office of the President." For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. (Emphasis supplied)
And in Domingo v. Zamora,6 the Court gave the rationale behind the President's continuing
authority in this wise:
The law grants the President this power in recognition of the recurring need of every President to
reorganize his office "to achieve simplicity, economy and efficiency." The Office of the President
is the nerve center of the Executive Branch. To remain effective and efficient, the Office of the
President must be capable of being shaped and reshaped by the President in the manner he
deems fit to carry out his directives and policies. After all, the Office of the President is the
command post of the President. (Emphasis supplied)
Clearly, the abolition of the PAGC and the transfer of its functions to a division specially created
within the ODESLA is properly within the prerogative of the President under his continuing
"delegated legislative authority to reorganize" his own office pursuant to E.O. 292.
Generally, this authority to implement organizational changes is limited to transferring either an
office or a function from the Office of the President to another Department or Agency, and the
other way around.7
Only Section 31(1) gives the President a virtual freehand in dealing with the internal structure of
the Office of the President Proper by allowing him to take actions as extreme as abolition,
consolidation or merger of units, apart from the less drastic move of transferring functions and
offices from one unit to another. Again, in Domingo v. Zamora8 the Court noted:
However, the President's power to reorganize the Office of the President under Section 31 (2)
and (3) of EO 292 should be distinguished from his power to reorganize the Office of the
President Proper. Under Section 31 (1) of EO 292, the President can reorganize the Office of the
President Proper by abolishing, consolidating or merging units, or by transferring functions from
one unit to another. In contrast, under Section 31 (2) and (3) of EO 292, the President's power to
reorganize offices outside the Office of the President Proper but still within the Office of the
President is limited to merely transferring functions or agencies from the Office of the President
to Departments or Agencies, and vice versa.
The distinction between the allowable organizational actions under Section 31(1) on the one
hand and Section 31 (2) and (3) on the other is crucial not only as it affects employees' tenurial
security but also insofar as it touches upon the validity of the reorganization, that is, whether the
executive actions undertaken fall within the limitations prescribed under E.O. 292. When the
PAGC was created under E.O. 12, it was composed of a Chairman and two (2) Commissioners
who held the ranks of Presidential Assistant II and I, respectively,9 and was placed directly
"under the Office of the President."10 On the other hand, the ODESLA, to which the functions of
the PAGC have now been transferred, is an office within the Office of the President
Proper.11 Since both of these offices belong to the Office of the President Proper, the
reorganization by way of abolishing the PAGC and transferring its functions to the ODESLA is
allowable under Section 31 (1) of E.O. 292.
Petitioner, however, goes on to assert that the President went beyond the authority granted by
E.O. 292 for him to reorganize the executive department since his issuance of E.O. 13 did not
merely involve the abolition of an office but the creation of one as well. He argues that nowhere
in the legal definition laid down by the Court in several cases does a reorganization include the
act of creating an office.
The contention is misplaced.
The Reorganization Did not Entail the Creation of a New, Separate and Distinct Office.
The abolition of the PAGC did not require the creation of a new, additional and distinct office as
the duties and functions that pertained to the defunct anti-graft body were simply transferred to
the ODESLA, which is an existing office within the Office of the President Proper. The
reorganization required no more than a mere alteration of the administrative structure of the
ODESLA through the establishment of a third division – the Investigative and Adjudicatory
Division – through which ODESLA could take on the additional functions it has been tasked to
discharge under E.O. 13. In Canonizado v. Aguirre,12 We ruled that –
Reorganization takes place when there is an alteration of the existing structure of government
offices or units therein, including the lines of control, authority and responsibility between them. It
involves a reduction of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions.
The Reorganization was Pursued in Good Faith.
A valid reorganization must not only be exercised through legitimate authority but must also be
pursued in good faith. A reorganization is said to be carried out in good faith if it is done for
purposes of economy and efficiency.13 It appears in this case that the streamlining of functions
within the Office of the President Proper was pursued with such purposes in mind.
In its Whereas clauses, E.O. 13 cites as bases for the reorganization the policy dictates of
eradicating corruption in the government and promoting economy and efficiency in the
bureaucracy. Indeed, the economical effects of the reorganization is shown by the fact that while
Congress had initially appropriated P22 Million for the PAGC's operation in the 2010 annual
budget,14 no separate or added funding of such a considerable amount was ever required after
the transfer of the PAGC functions to the IAD-ODESLA.
Apparently, the budgetary requirements that the IAD-ODESLA needed to discharge its functions
and maintain its personnel would be sourced from the following year's appropriation for the
President's Offices under the General Appropriations Act of 2011.15 Petitioner asseverates,
however, that since Congress did not indicate the manner by which the appropriation for the
Office of the President was to be distributed, taking therefrom the operational funds of the IAD-
ODESLA would amount to an illegal appropriation by the President. The contention is without
legal basis.
There is no usurpation of the legislative power to appropriate public funds.
In the chief executive dwell the powers to run government. Placed upon him is the power to
recommend the budget necessary for the operation of the Government,16 which implies that he
has the necessary authority to evaluate and determine the structure that each government
agency in the executive department would need to operate in the most economical and efficient
manner.17 Hence, the express recognition under Section 78 of R.A. 9970 or the General
Appropriations Act of 2010 of the President’s authority to "direct changes in the organizational
units or key positions in any department or agency." The aforecited provision, often and
consistently included in the general appropriations laws, recognizes the extent of the President’s
power to reorganize the executive offices and agencies under him, which is, "even to the extent
of modifying and realigning appropriations for that purpose."18
And to further enable the President to run the affairs of the executive department, he is likewise
given constitutional authority to augment any item in the General Appropriations Law using the
savings in other items of the appropriation for his office.19 In fact, he is explicitly allowed by law to
transfer any fund appropriated for the different departments, bureaus, offices and agencies of
the Executive Department which is included in the General Appropriations Act, to any program,
project or activity of any department, bureau or office included in the General Appropriations Act
or approved after its enactment.20
Thus, while there may be no specific amount earmarked for the IAD-ODESLA from the total
amount appropriated by Congress in the annual budget for the Office of the President, the
necessary funds for the IAD-ODESLA may be properly sourced from the President's own office
budget without committing any illegal appropriation. After all, there is no usurpation of the
legislature's power to appropriate funds when the President simply allocates the existing funds
previously appropriated by Congress for his office.
The IAD-ODESLA is a fact-finding and recommendatory body not vested with quasi-judicial
powers.
Petitioner next avers that the IAD-ODESLA was illegally vested with judicial power which is
reserved to the Judicial Department and, by way of exception through an express grant by the
legislature, to administrative agencies. He points out that the name Investigative and
Adjudicatory Division is proof itself that the IAD-ODESLA wields quasi-judicial power.
The argument is tenuous. As the OSG aptly explained in its Comment,21 while the term
"adjudicatory" appears part of its appellation, the IAD-ODESLA cannot try and resolve cases, its
authority being limited to the conduct of investigations, preparation of reports and submission of
recommendations. E.O. 13 explicitly states that the IAD-ODESLA shall "perform powers,
functions and duties xxx, of PAGC."22
Under E.O. 12, the PAGC was given the authority to "investigate or hear administrative cases or
complaints against all presidential appointees in the government"23 and to "submit its report and
recommendations to the President."24The IAD-ODESLA is a fact-finding and recommendatory
body to the President, not having the power to settle controversies and adjudicate cases. As the
Court ruled in Cariño v. Commission on Human Rights,25 and later reiterated in Biraogo v. The
Philippine Truth Commission:26
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of
justice, or even a quasi-judicial agency or office. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function. To be considered as
such, the act of receiving evidence and arriving at factual conclusions in a controversy must be
accompanied by the authority of applying the law to the factual conclusions to the end that the
controversy may be decided or determined authoritatively, finally and definitively, subject to such
appeals or modes of review as may be provided by law.
The President's authority to issue E.O. 13 and constitute the IAD-ODESLA as his fact-finding
investigator cannot be doubted. After all, as Chief Executive, he is granted full control over the
Executive Department to ensure the enforcement of the laws. Section 17, Article VII of the
Constitution provides:
Section 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.
The obligation to see to it that laws are faithfully executed necessitates the corresponding power
in the President to conduct investigations into the conduct of officials and employees in the
executive department.27
The IAD-ODESLA does not encroach upon the powers and duties of the Ombudsman.
Contrary to petitioner's contention, the IAD-ODESLA did not encroach upon the Ombudsman's
primary jurisdiction when it took cognizance of the complaint affidavit filed against him
notwithstanding the earlier filing of criminal and administrative cases involving the same charges
and allegations before the Office of the Ombudsman. The primary jurisdiction of the
Ombudsman to investigate and prosecute cases refers to criminal cases cognizable by the
Sandiganbayan and not to administrative cases. It is only in the exercise of its primary
jurisdiction that the Ombudsman may, at any time, take over the investigation being conducted
by another investigatory agency. Section 15 (1) of R.A. No. 6770 or the Ombudsman Act of
1989, empowers the Ombudsman to –
(1)Investigate and prosecute on its own or on complaint by any person, any act or omission of
any public officer or employee, office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage,
from any investigatory agency of government, the investigation of such cases. (Emphasis
supplied)
Since the case filed before the IAD-ODESLA is an administrative disciplinary case for grave
misconduct, petitioner may not invoke the primary jurisdiction of the Ombudsman to prevent the
IAD-ODESLA from proceeding with its investigation. In any event, the Ombudsman's authority to
investigate both elective and appointive officials in the government, extensive as it may be, is by
no means exclusive. It is shared with other similarly authorized government agencies. 28
While the Ombudsman's function goes into the determination of the existence of probable cause
and the adjudication of the merits of a criminal accusation, the investigative authority of the IAD-
ODESLA is limited to that of a fact-finding investigator whose determinations and
recommendations remain so until acted upon by the President. As such, it commits no
usurpation of the Ombudsman's constitutional duties.
Executive Order No. 13 Does Not Violate Petitioner's Right to Due Process and the Equal
Protection of the Laws.
Petitioner goes on to assail E.O. 13 as violative of the equal protection clause pointing to the
arbitrariness of limiting the IAD-ODESLA's investigation only to presidential appointees
occupying upper-level positions in the government. The equal protection of the laws is a
guaranty against any form of undue favoritism or hostility from the government.29 It is embraced
under the due process concept and simply requires that, in the application of the law, "all
persons or things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed."30 The equal protection clause, however, is not absolute but subject to
reasonable classification so that aggrupations bearing substantial distinctions may be treated
differently from each other. This we ruled in Farinas v. Executive Secretary, 31 wherein we further
stated that –
The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit
legislation which is limited either in the object to which it is directed or by territory within which it
is to operate. It does not demand absolute equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by legislation
which applies only to those persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exist for making a distinction between those
who fall within such class and those who do not. (Emphasis supplied)
Presidential appointees come under the direct disciplining authority of the President. This
proceeds from the well settled principle that, in the absence of a contrary law, the power to
remove or to discipline is lodged in the same authority on which the power to appoint is
vested.32 Having the power to remove and/or discipline presidential appointees, the President
has the corollary authority to investigate such public officials and look into their conduct in
office.33 Petitioner is a presidential appointee occupying the high-level position of Chairman of
the LWUA. Necessarily, he comes under the disciplinary jurisdiction of the President, who is well
within his right to order an investigation into matters that require his informed decision.
There are substantial distinctions that set apart presidential appointees occupying upper-level
positions in government from non-presidential appointees and those that occupy the lower
positions in government. In Salumbides v. Office of the Ombudsman, 34 we had ruled extensively
on the substantial distinctions that exist between elective and appointive public officials, thus:

Substantial distinctions clearly exist between elective officials and appointive officials. The
former occupy their office by virtue of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom only upon stringent conditions. On the
other hand, appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office in a permanent capacity and are
entitled to security of tenure while others serve at the pleasure of the appointing authority.

xxxx

An election is the embodiment of the popular will, perhaps the purest expression of the
sovereign power of the people.1âwphi1 It involves the choice or selection of candidates to public
office by popular vote. Considering that elected officials are put in office by their constituents for
a definite term, x x x complete deference is accorded to the will of the electorate that they be
served by such officials until the end of the term for which they were elected. In contrast, there is
no such expectation insofar as appointed officials are concerned. (Emphasis supplied)

Also, contrary to petitioner's assertions, his right to due process was not violated when the IAD-
ODESLA took cognizance of the administrative complaint against him since he was given
sufficient opportunity to oppose the formal complaint filed by Secretary Purisima. In
administrative proceedings, the filing of charges and giving reasonable opportunity for the
person so charged to answer the accusations against him constitute the minimum requirements
of due process,35 which simply means having the opportunity to explain one’s side.36 Hence, as
long as petitioner was given the opportunity to explain his side and present evidence, the
requirements of due process are satisfactorily complied with because what the law abhors is an
absolute lack of opportunity to be heard.37 The records show that petitioner was issued an Order
requiring him to submit his written explanation under oath with respect to the charge of grave
misconduct filed against him. His own failure to submit his explanation despite notice defeats his
subsequent claim of denial of due process.

Finally, petitioner doubts that the IAD-ODESLA can lawfully perform its duties as an impartial
tribunal, contending that both the IAD-ODESLA and respondent Secretary Purisima are
connected to the President. The mere suspicion of partiality will not suffice to invalidate the
actions of the IAD-ODESLA. Mere allegation is not equivalent to proof. Bias and partiality

cannot be presumed.38 Petitioner must present substantial proof to show that the lAD-ODES LA
had unjustifiably sided against him in the conduct of the investigation. No such evidence has
been presented as to defeat the presumption of regularity m the performance of the fact-finding
investigator's duties. The assertion, therefore, deserves scant consideration.

Every law has in its favor the presumption of constitutionality, and to justify its nullification, there
must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative
one.39 Petitioner has failed to discharge the burden of proving the illegality of E.O. 13, which IS
indubitably a valid exercise of the President's continuing authority to reorganize the Office of the
President.

WHEREFORE, premises considered, the petition IS hereby DISMISSED.

SO ORDERED.
 Republic of the Philippines JUDICIAL AND BAR COUNCIL (JBC),

Supreme Court Respondent.

Manila x-----------------------x

EN BANC IN RE APPLICABILITY OF SECTION 15,

ARTICLE VII OF THE CONSTITUTION TO
APPOINTMENTS TO THE JUDICIARY,

ARTURO M. DE CASTRO, G. R. No. 191002 ESTELITO P. MENDOZA,

Petitioner, Petitioner, A.M. No. 10-2-5-SC

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

- versus - JOHN G. PERALTA,

Petitioner,

JUDICIAL AND BAR COUNCIL (JBC) and - versus -

PRESIDENT GLORIA MACAPAGAL ARROYO,

Respondents.
JUDICIAL AND BAR COUNCIL (JBC).
x-----------------------x
Respondent.
JAIME N. SORIANO,
x - - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 191149
Petitioner,
G.R. No. 191032 PETER IRVING CORVERA;

- versus -
CHRISTIAN ROBERT S. LIM;

JUDICIAL AND BAR COUNCIL (JBC),

ALFONSO V. TAN, JR.;
Respondent.

x-----------------------x
NATIONAL UNION OF PEOPLES LAWYERS;
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA),

Petitioner, MARLOU B. UBANO;

G.R. No. 191057

- versus - INTEGRATED BAR OF THE PHILIPPINES-

DAVAO DEL SUR CHAPTER, represented by its
Immediate Past President, ATTY. ISRAELITO P.
TORREON, and the latter in his own personal
capacity as a MEMBER of the PHILIPPINE BAR; B. INTING

(IBP GovernorEastern Visayas),

MITCHELL JOHN L. BOISER; Petitioners,

BAGONG ALYANSANG BAYAN (BAYAN) - versus -

CHAIRMAN DR. CAROLINA P. ARAULLO;
BAYAN SECRETARY GENERAL RENATO M.
REYES, JR.; CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE)
CHAIRMAN FERDINAND GAITE; KALIPUNAN JUDICIAL AND BAR COUNCIL (JBC),
NG DAMAYANG MAHIHIRAP (KADAMAY)
SECRETARY GENERAL GLORIA ARELLANO; Respondent.
ALYANSA NG NAGKAKAISANG KABATAAN
NG SAMBAYANAN PARA SA KAUNLARAN
x-----------------------x
(ANAKBAYAN) CHAIRMAN KEN LEONARD
RAMOS; TAYO ANG PAG-ASA CONVENOR
PHILIPPINE BAR ASSOCIATION, INC.,
ALVIN PETERS; LEAGUE OF FILIPINO
STUDENTS (LFS) CHAIRMAN JAMES MARK
TERRY LACUANAN RIDON; NATIONAL UNION Petitioner,
OF STUDENTS OF THE PHILIPPINES (NUSP)
CHAIRMAN EINSTEIN RECEDES; COLLEGE
EDITORS GUILD OF THE PHILIPPINES (CEGP)
CHAIRMAN VIJAE ALQUISOLA; and STUDENT
CHRISTIAN MOVEMENT OF THE PHILIPPINES
(SCMP) CHAIRMAN MA. CRISTINA ANGELA
GUEVARRA;

WALDEN F. BELLO and LORETTA ANN P.

ROSALES;

WOMEN TRIAL LAWYERS ORGANIZATION OF - versus -

THE PHILIPPINES, represented by YOLANDA
QUISUMBING-

JAVELLANA; BELLEZA ALOJADO DEMAISIP;

TERESITA GANDIONCO-OLEDAN; MA.
VERENA KASILAG-VILLANUEVA; MARILYN
STA. ROMANA; LEONILA DE JESUS; and
GUINEVERE DE LEON.

Intervenors.

x - - - - - - - - - - - - - - - - - - - - - - - -x JUDICIAL AND BAR COUNCIL and HER

EXCELLENCY GLORIA MACAPAGAL-
ATTY. AMADOR Z. TOLENTINO, JR., (IBP ARROYO,

GovernorSouthern Luzon), and ATTY. ROLAND

Respondents. G.R. No. 191420

Present:

PUNO, C.J.,

CARPIO,

CORONA,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

G.R. No. 191342 ABAD,

VILLARAMA, JR.,

PEREZ, and

MENDOZA, JJ.

Promulgated:

March 17, 2010

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

DECISION

BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days
after the coming presidential elections on May 10, 2010. Even before the event actually
happens, it is giving rise to many legal dilemmas. May the incumbent President appoint his
successor, considering that Section 15, Article VII (Executive Department) of the Constitution
prohibits the President or Acting President from making appointments within two months
immediately before the next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety? What is the relevance of Section 4 (1), Article VIII
(Judicial Department) of the Constitution, which provides that any vacancy in the Supreme Court
shall be filled within 90 days from the occurrence thereof, to the matter of the appointment of his
successor? May the Judicial and Bar Council (JBC) resume the process of screening the
candidates nominated or being considered to succeed Chief Justice Puno, and submit the list of
nominees to the incumbent President even during the period of the prohibition under Section 15,
Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the
JBC?
Precs of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R.
No. 191002[1] and G.R. No. 191149[2] as special civil actions for certiorari and mandamus,
praying that the JBC be compelled to submit to the incumbent President the list of at least three
nominees for the position of the next Chief Justice.
In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition, proposes to
prevent the JBC from conducting its search, selection and nomination proceedings for the
position of Chief Justice.
In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine Constitution
Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of Chief
Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because the
incumbent President is not covered by the prohibition that applies only to appointments in the
Executive Department.
In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a former Solicitor
General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15,
Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the petitions earlier
filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines
(IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and
restrain the JBC from submitting a list of nominees for the position of Chief Justice to the
President for appointment during the period provided for in Section 15, Article VII.
All the petitions now before the Court pose as the principal legal question whether the incumbent
President can appoint the successor of Chief Justice Puno upon his retirement. That question is
undoubtedly impressed with transcendental importance to the Nation, because the appointment
of the Chief Justice is any Presidents most important appointment.
A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon.
Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),[7] by which
the Court held that Section 15, Article VII prohibited the exercise by the President of the power
to appoint to judicial positions during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue
expressed by legal luminaries one side holds that the incumbent President is prohibited from
making appointments within two months immediately before the coming presidential elections
and until the end of her term of office as President on June 30, 2010, while the other insists that
the prohibition applies only to appointments to executive positions that may influence the
election and, anyway, paramount national interest justifies the appointment of a Chief Justice
during the election ban has impelled the JBC to defer the decision to whom to send its list of at
least three nominees, whether to the incumbent President or to her successor.[8] He opines that
the JBC is thereby arrogating unto itself the judicial function that is not conferred upon it by the
Constitution, which has limited it to the task of recommending appointees to the Judiciary, but
has not empowered it to finally resolve constitutional questions, which is the power vested only
in the Supreme Court under the Constitution. As such, he contends that the JBC acted with
grave abuse of discretion in deferring the submission of the list of nominees to the President;
and that a final and definitive resolution of the constitutional questions raised above would
diffuse (sic) the tension in the legal community that would go a long way to keep and maintain
stability in the judiciary and the political system.[9]
In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of
discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on
January 18, 2010 to open the search, nomination, and selection process for the position of Chief
Justice to succeed Chief Justice Puno, because the appointing authority for the position of Chief
Justice is the Supreme Court itself, the Presidents authority being limited to the appointment of
the Members of the Supreme Court. Hence, the JBC should not intervene in the process, unless
a nominee is not yet a Member of the Supreme Court.[10]
For its part, PHILCONSA observes in its petition in G.R. No. 191057 that unorthodox
and exceptional circumstances spawned by the discordant interpretations, due perhaps to a
perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the
Constitution have bred a frenzied inflammatory legal debate on the constitutional provisions
mentioned that has divided the bench and the bar and the general public as well, because of its
dimensional impact to the nation and the people, thereby fashioning transcendental questions or
issues affecting the JBCs proper exercise of its principal function of recommending appointees
to the Judiciary by submitting only to the President (not to the next President) a list of at least
three nominees prepared by the Judicial and Bar Council for every vacancy from which the
members of the Supreme Court and judges of the lower courts may be
appointed.[11] PHILCONSA further believes and submits that now is the time to revisit and
review Valenzuela, the strange and exotic Decision of the Court en banc.[12]
As to the time to submit this shortlist to the proper appointing
authority, in the light of the Constitution, existing laws and jurisprudence, the
JBC welcomes and will consider all views on the matter.
Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC
to immediately transmit to the President, within a reasonable time, its nomination list for the
position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in
compliance with its mandated duty under the Constitution in the event that the Court resolves 18 January 2010.
that the President can appoint a Chief Justice even during the election ban under Section 15,
Article VII of the Constitution.[13]

The petitioners in G.R. No. 191342 insist that there is an actual controversy,
considering that the JBC has initiated the process of receiving applications for the position of
Chief Justice and has in fact begun the evaluation process for the applications to the position, (sgd.)
and is perilously near completing the nomination process and coming up with a list of nominees
for submission to the President, entering into the period of the ban on midnight appointments on MA. LUISA D. VILLARAMA
March 10, 2010, which only highlights the pressing and compelling need for a writ of prohibition
to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within Clerk of Court &
the period of the ban on midnight appointments.[14]
Ex-Officio Secretary
Antecedents
Judicial and Bar Council

These cases trace their genesis to the controversy that has arisen from the
forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after
the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that vacancy
shall be filled within ninety days from the occurrence thereof from a list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy. As a result, the JBC opened the position of Chief Justice for application or recommendation, and
published for that purpose its announcement dated January 20, 2010,[16] viz:

On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of

the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office
of the Chief Justice be commenced immediately.
The Judicial and Bar Council (JBC) announces the opening for
application or recommendation, of the position of CHIEF JUSTICE OF THE
SUPREME COURT, which will be vacated on 17 May 2010 upon the
retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO.
In its January 18, 2010 meeting en banc, therefore, the JBC passed a
resolution,[15] which reads:

Applications or recommendations for this position must be submitted

The JBC, in its en banc meeting of January 18, 2010, unanimously
agreed to start the process of filling up the position of Chief Justice to be
vacated on May 17, 2010 upon the retirement of the incumbent Chief
Justice Honorable Reynato S. Puno.
not later than 4 February 2010 (Thursday) to the JBC Secretariat xxx:
The announcement was published on January 20, 2010 in the Philippine Daily
Inquirer and The Philippine Star.[17]

It will publish the opening of the position for applications or Conformably with its existing practice, the JBC automatically considered for the position of Chief
recommendations; deliberate on the list of candidates; publish the names of Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice
candidates; accept comments on or opposition to the applications; conduct Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio
public interviews of candidates; and prepare the shortlist of candidates. Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B.
Nachura. However, the last two declined their nomination through letters dated January 18, Accordingly, we reframe the issues as submitted by each petitioner in the order of the
2010 and January 25, 2010, respectively.[18] chronological filing of their petitions.

Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman
for Luzon, applied, but later formally withdrew his name from consideration through his letter
dated February 8, 2010. Candidates who accepted their nominations without conditions were
Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro;
Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval G.R. No. 191002
(Sandiganbayan). Candidates who accepted their nominations with conditions were Associate
Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales. [19] Declining their
nominations were Atty. Henry Villarica (via telephone conversation with the Executive Officer of
the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with
the Executive Officer of the JBC on February 8, 2010).[20]
a. Does the JBC have the power and authority to resolve the constitutional
question of whether the incumbent President can appoint a Chief
Justice during the election ban period?
The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the
standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the
Ombudsman (due to cases pending in the Office of the Ombudsman). [21]
b. Does the incumbent President have the power and authority to appoint
during the election ban the successor of Chief Justice Puno when he
vacates the position of Chief Justice on his retirement on May 17,
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing 2010?
the names of the following candidates to invite the public to file their sworn complaint, written
report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio,
Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De
Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out
in the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.[22]
G.R. No. 191032

Issues
a. Is the power to appoint the Chief Justice vested in the Supreme Court en
banc?
Although it has already begun the process for the filling of the position of Chief Justice
Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President
its list of nominees for the position due to the controversy now before us being yet unresolved. In
G.R. No. 191057
the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs
upon the retirement of Chief Justice Puno.

a. Is the constitutional prohibition against appointment under Section 15,

Article VII of the Constitution applicable only to positions in the
The actions of the JBC have sparked a vigorous debate not only among legal
Executive Department?
luminaries, but also among non-legal quarters, and brought out highly disparate opinions on
whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza
notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial
Court, the Court addressed this issue now before us as an administrative matter to avoid any
possible polemics concerning the matter, but he opines that the polemics leading b. Assuming that the prohibition under Section 15, Article VII of the
to Valenzuela would be miniscule [sic] compared to the polemics that have now erupted in Constitution also applies to members of the Judiciary, may such
regard to the current controversy, and that unless put to a halt, and this may only be achieved by appointments be excepted because they are impressed with public
a ruling from the Court, the integrity of the process and the credibility of whoever is appointed to interest or are demanded by the exigencies of public service, thereby
the position of Chief Justice, may irreparably be impaired.[23] justifying these appointments during the period of prohibition?
 c. Does the JBC have the authority to decide whether or not to include and
submit the names of nominees who manifested interest to be
nominated for the position of Chief Justice on the understanding that
his/her nomination will be submitted to the next President in view of the
prohibition against presidential appointments from March 11, 2010 until
June 30, 2010?
A. M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution apply to appointments to
positions in the Judiciary under Section 9, Article VIII of the
Constitution?
b. May President Gloria Macapagal-Arroyo make appointments to the
Judiciary after March 10, 2010, including that for the position of Chief
Justice after Chief Justice Puno retires on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the submission of the short
list to President Gloria Macapagal-Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of nominees to the
incumbent President without committing a grave violation of the
Constitution and jurisprudence prohibiting the incumbent President
from making midnight appointments two months immediately
preceding the next presidential elections until the end of her term?
b. Is any act performed by the JBC, including the vetting of the
candidates for the position of Chief Justice, constitutionally invalid in
view of the JBCs illegal composition allowing each member from the
Senate and the House of Representatives to have one vote each?
On February 16, 2010, the Court directed the JBC and the Office of the Solicitor
General (OSG) to comment on the consolidated petitions, except that filed in G.R. No. 191342.
On February 26, 2010, the JBC submitted its comment, reporting therein that the next
stage of the process for the selection of the nominees for the position of Chief Justice would be
the public interview of the candidates and the preparation of the short list of candidates,
including the interview of the constitutional experts, as may be needed.[24] It stated:[25]
Likewise, the JBC has yet to take a position on when to submit
the shortlist to the proper appointing authority, in light of Section
4 (1), Article VIII of the Constitution, which provides that vacancy
in the Supreme Court shall be filled within ninety (90) days from
the occurrence thereof, Section 15, Article VII of the Constitution
concerning the ban on Presidential appointments two (2) months
immediately before the next presidential elections and up to the
end of his term and Section 261 (g), Article XXII of the Omnibus
Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these
consolidated Petitions and Administrative Matter.
On February 26, 2010, the OSG also submitted its comment, essentially stating that
the incumbent President can appoint the successor of Chief Justice Puno upon his retirement
by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from
performing its principal function under the Constitution to recommend appointees in the
Judiciary; (b) the JBCs function to recommend is a continuing process, which does not begin
with each vacancy or end with each nomination, because the goal is to submit the list of
nominees to Malacaang on the very day the vacancy arises;[26] the JBC was thus acting within its
jurisdiction when it commenced and set in motion the process of selecting the nominees to be
submitted to the President for the position of Chief Justice to be vacated by Chief Justice
Puno;[27] (c) petitioner Sorianos theory that it is the Supreme Court, not the President, who has
the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of
the phrase members of the Supreme Court found in Section 9, Article VIII of the Constitution as
referring only to the Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ
of mandamus can issue to compel the JBC to submit the list of nominees to the President,
considering that its duty to prepare the list of at least three nominees is unqualified, and the
submission of the list is a ministerial act that the JBC is mandated to perform under the
Constitution; as such, the JBC, the nature of whose principal function is executive, is not vested
with the power to resolve who has the authority to appoint the next Chief Justice and, therefore,
has no discretion to withhold the list from the President; [29] and (e) a writ of mandamus cannot
issue to compel the JBC to include or exclude particular candidates as nominees, considering
that there is no imperative duty on its part to include in or exclude from the list particular
individuals, but, on the contrary, the JBCs determination of who it nominates to the President is (a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter
an exercise of a discretionary duty.[30] Irving Corvera (Corvera);[40]

The OSG contends that the incumbent President may appoint the next Chief Justice, (b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian
because the prohibition under Section 15, Article VII of the Constitution does not apply to Robert S. Lim (Lim);
appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be
filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the
Constitution; [31] that in their deliberations on the mandatory period for the appointment of
Supreme Court Justices, the framers neither mentioned nor referred to the ban against midnight (c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso
appointments, or its effects on such period, or vice versa;[32] that had the framers intended the V. Tan, Jr. (Tan);
prohibition to apply to Supreme Court appointments, they could have easily expressly stated so
in the Constitution, which explains why the prohibition found in Article VII (Executive
Department) was not written in Article VIII (Judicial Department); and that the framers also
incorporated in Article VIII ample restrictions or limitations on the Presidents power to appoint (d) The comment/opposition-in-intervention dated March 1, 2010 of the
members of the Supreme Court to ensure its independence from political vicissitudes and its National Union of Peoples Lawyers (NUPL);
insulation from political pressures,[33] such as stringent qualifications for the positions, the
establishment of the JBC, the specified period within which the President shall appoint a
Supreme Court Justice.
(e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou
B. Ubano (Ubano);
The OSG posits that although Valenzuela involved the appointment of RTC Judges,
the situation now refers to the appointment of the next Chief Justice to which the prohibition
does not apply; that, at any rate, Valenzuela even recognized that there might be the imperative
(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar
need for an appointment during the period of the ban, like when the membership of the Supreme
of the Philippines-Davao del Sur Chapter and its Immediate Past
Court should be so reduced that it will have no quorum, or should the voting on a particular
President, Atty. Israelito P. Torreon (IBP- Davao del Sur);
important question requiring expeditious resolution be divided;[34] and that Valenzuela also
recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most
especially if there is any compelling reason to justify the making of the appointments during the
period of the prohibition.[35]
(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell
John L. Boiser (Boiser);

Lastly, the OSG urges that there are now undeniably compelling reasons for the
incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving
sensitive political issues is quite expected;[36] (b) the Court acts as the Presidential Electoral
Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election,
returns, and qualifications of the President and Vice President and, as such, has the power to
correct manifest errors on the statement of votes (SOV) and certificates of canvass (COC);[37] (c)
if history has shown that during ordinary times the Chief Justice was appointed immediately
upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is
now even more reason to appoint the next Chief Justice immediately upon the retirement of
Chief Justice Puno;[38] and (d) should the next Chief Justice come from among the incumbent
Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes
incumbent upon the JBC to start the selection process for the filling up of the vacancy in
accordance with the constitutional mandate.[39]
On March 9, 2010, the Court admitted the following comments/oppositions-in-
intervention, to wit:
(h)The consolidated comment/opposition-in-intervention dated February 26,
2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary
General Renato M. Reyes, Jr.; Confederation for Unity, Recognition
and Advancement of Government Employees (COURAGE) Chairman
Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY)
Secretary General Gloria Arellano; Alyansa ng Nagkakaisang
Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN)
Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin
Peters; League of Filipino Students (LFS) Chairman James Mark Terry
Lacuanan Ridon; National Union of Students of the Philippines (NUSP)
Chairman Einstein Recedes, College Editors Guild of the Philippines
(CEGP) Chairman Vijae Alquisola; and Student Christian Movement of
the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra
(BAYAN et al.);
(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello
and Loretta Ann P. Rosales (Bello et al.); and
 (j) The consolidated comment/opposition-in-intervention dated March 4,
2010 of the Women Trial Lawyers Organization of the Philippines
(WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty.
Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma.
Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de
Jesus; and Atty. Guinevere de Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the
position that De Castros petition was bereft of any basis, because under Section 15, Article VII,
the outgoing President is constitutionally banned from making any appointments from March 10,
2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno.
Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing
President if the constitutional prohibition is already in effect. Tan adds that the prohibition against
midnight appointments was applied by the Court to the appointments to the Judiciary made by
then President Ramos, with the Court holding that the duty of the President to fill the vacancies
within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission
of the list (for all other courts) was not an excuse to violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al.
oppose the insistence that Valenzuela recognizes the possibility that the President may appoint
the next Chief Justice if exigent circumstances warrant the appointment, because that
recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate
Justice does not cause epic damage or absolute disruption or paralysis in the operations of the
Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by
the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of three,
five or seven members at its discretion; that a full membership of the Court is not necessary; that
petitioner De Castros fears are unfounded and baseless, being based on a mere possibility, the
occurrence of which is entirely unsure; that it is not in the national interest to have a Chief
Justice whose appointment is unconstitutional and, therefore, void; and that such a situation will
create a crisis in the judicial system and will worsen an already vulnerable political situation.
ice is imperative for the stability of the judicial system and the political situation in the country
when the election-related questions reach the Court as false, because there is an existing law on
filling the void brought about by a vacancy in the office of Chief Justice; that the law is Section
12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or
any other law; that a temporaryor an acting Chief Justice is not anathema to judicial
independence; that the designation of an acting Chief Justice is not only provided for by law, but
is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987
Constitution, but the Commissioners decided not to write it in the Constitution on account of the
settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at
the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa
assumed the position as Acting Chief Justice prior to his official appointment as Chief Justice;
that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even
used by analogy in the case of the vacancy of the Chairman of the Commission on Elections,
per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown
that this rule of succession has been repeatedly observed and has become a part of its tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus
Election Code penalizes as an election offense the act of any government official who appoints,
promotes, or gives any increase in salary or remuneration or privilege to any government official
or employee during the period of 45 days before a regular election; that the provision covers all
appointing heads, officials, and officers of a government office, agency or instrumentality,
including the President; that for the incumbent President to appoint the next Chief Justice upon
the retirement of Chief Justice Puno, or during the period of the ban under the Omnibus Election
Code, constitutes an election offense; that even an appointment of the next Chief Justice prior to
the election ban is fundamentally invalid and without effect because there can be no
appointment until a vacancy occurs; and that the vacancy for the position can occur only by May
17, 2010.
Intervenor Boiser adds that De Castros prayer to compel the submission of nominees
by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still
not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs
is glaringly premature; that the proposed advance appointment by the incumbent President of
the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by
the JBC if there is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between
the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled that
the appointments by the President of the two judges during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not
apply only to the appointments in the Executive Department, but also to judicial appointments,
contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and
that Valenzuela already interpreted the prohibition as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Sorianos contention that the power to
appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly
baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated
under Section 9, Article VIII; and that, at any rate, the term members was interpreted in Vargas
v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate
Justices of the Supreme Court; that PHILCONSAs prayer that the Court pass a resolution
declaring that persons who manifest their interest as nominees, but with conditions, shall not be
considered nominees by the JBC is diametrically opposed to the arguments in the body of its
petition; that such glaring inconsistency between the allegations in the body and the relief prayed
for highlights the lack of merit of PHILCONSAs petition; that the role of the JBC cannot be
separated from the constitutional prohibition on the President; and that the Court must direct the
JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected
President after the period of the constitutional ban against midnight appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC because it is neither a judicial nor a
quasi-judicial body has no duty under the Constitution to resolve the question of whether the
incumbent President can appoint a Chief Justice during the period of prohibition; that even if the
JBC has already come up with a short list, it still has to bow to the strict limitations under Section
15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a
judicial function, but simply respecting the clear mandate of the Constitution; and that the
application of the general rule in Section 15, Article VII to the Judiciary does not violate the
principle of separation of powers, because said provision is an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of
nominating appointees to the Supreme Court is purely ministerial and does not involve the
exercise of judgment; that there can be no default on the part of the JBC in submitting the list of
nominees to the President, considering that the call for applications only begins from the
occurrence of the vacancy in the Supreme Court; and that the commencement of the process of
screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the
retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to
claim that the submission or non-submission of the list of nominees to the President by the JBC
is a matter of right under law.
The main question presented in all the filings herein because it involves two seemingly
conflicting provisions of the Constitution imperatively demands the attention and resolution of
this Court, the only authority that can resolve the question definitively and finally. The imperative
demand rests on the ever-present need, first, to safeguard the independence, reputation, and
integrity of the entire Judiciary, particularly this Court, an institution that has been unnecessarily
dragged into the harsh polemics brought on by the controversy; second, to settle once and for all
the doubt about an outgoing Presidents power to appoint to the Judiciary within the long period
starting two months before the presidential elections until the end of the presidential term;
and third, to set a definite guideline for the JBC to follow in the discharge of its primary office of
screening and nominating qualified persons for appointment to the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners have locus standi.
Black defines locus standi as a right of appearance in a court of justice on a given
question.[41] In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present need to regulate the
invocation of the intervention of the Court to correct any official action or policy in order to avoid
obstructing the efficient functioning of public officials and offices involved in public service. It is
required, therefore, that the petitioner must have a personal stake in the outcome of the
controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:[42]
The question on legal standing is whether such parties have
alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions.[43] Accordingly, it has been held that
the interest of a person assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law
or any government act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.[44]
It is true that as early as in 1937, in People v. Vera,[45] the Court adopted the direct
injury test for determining whether a petitioner in a public action had locus standi. There, the
Court held that the person who would assail the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury as a
result. Vera was followed in Custodio v. President of the Senate,[46] Manila Race Horse Trainers
Association v. De la Fuente,[47] Anti-Chinese League of the Philippines v. Felix,[48] and Pascual v.
Secretary of Public Works.[49]
Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its discretion. For instance,
in 1949, in Araneta v. Dinglasan,[50] the Court liberalized the approach when the cases
had transcendental importance. Some notable controversies whose petitioners did not pass
the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.[51]
In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to resolve the
issues raised by the petition due to their far-reaching implications, even if the petitioner had no
personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been
adopted in several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws, regulations, and
rulings.[53]
However, the assertion of a public right as a predicate for challenging a supposedly
illegal or unconstitutional executive or legislative action rests on the theory that the petitioner
represents the public in general. Although such petitioner may not be as adversely affected by
the action complained against as are others, it is enough that he sufficiently demonstrates in his
petition that he is entitled to protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to
gain locus standi. That is not surprising, for even if the issue may appear to concern only the
public in general, such capacities nonetheless equip the petitioner with adequate interest to
sue. In David v. Macapagal-Arroyo,[54] the Court aptly explains why:

Case law in most jurisdictions now allows both citizen and taxpayer
standing in public actions. The distinction was first laid down in Beauchamp
v. Silk,[55] where it was held that the plaintiff in a taxpayers suit is in a
different category from the plaintiff in a citizens suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As held by
the New York Supreme Court in People ex rel Case v. Collins:[56] In matter
of mere public right, howeverthe people are the real partiesIt is at least
the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public
grievance be remedied. With respect to taxpayers suits, Terr v.
Jordan[57] held that the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his
injury cannot be denied.[58]
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta
(G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public who
are directly affected by the issue of the appointment of the next Chief Justice. De Castro and
Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the
continuing proceedings in the JBC, which involve unnecessary, if not, illegal disbursement of
public funds.[59]
PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the
law for the purpose of defending, protecting, and preserving the Constitution and promoting its
growth and flowering. It also alleges that the Court has recognized its legal standing to file cases
on constitutional issues in several cases.[60]
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a
member of the Philippine Bar engaged in the active practice of law, and a former Solicitor
General, former Minister of Justice, former Member of the Interim Batasang Pambansa and the
Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the
University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the
Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal
standing to enjoin the submission of the list of nominees by the JBC to the President, for [a]n
adjudication of the proper interpretation and application of the constitutional ban on midnight
appointments with regard to respondent JBCs function in submitting the list of nominees is well
within the concern of petitioners, who are duty bound to ensure that obedience and respect for
the Constitution is upheld, most especially by government offices, such as respondent JBC, who
are specifically tasked to perform crucial functions in the whole scheme of our democratic
institution. They further allege that, reposed in them as members of the Bar, is a clear legal
interest in the process of selecting the members of the Supreme Court, and in the selection of
the Chief Justice, considering that the person appointed becomes a member of the body that
has constitutional supervision and authority over them and other members of the legal
profession.[61]
The Court rules that the petitioners have each demonstrated adequate interest in the
outcome of the controversy as to vest them with the requisite locus standi. The issues before us
are of transcendental importance to the people as a whole, and to the petitioners in particular.
Indeed, the issues affect everyone (including the petitioners), regardless of ones personal
interest in life, because they concern that great doubt about the authority of the incumbent
President to appoint not only the successor of the retiring incumbent Chief Justice, but also
others who may serve in the Judiciary, which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement of legal
standing in favor of any petitioner when the matter involved has transcendental importance, or
otherwise requires a liberalization of the requirement.[62]
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the
doubt now in order to remove any obstacle or obstruction to the resolution of the essential issue
squarely presented herein. We are not to shirk from discharging our solemn duty by reason
alone of an obstacle more technical than otherwise. In Agan, Jr. v.Philippine International Air
Terminals Co., Inc.,[63] we pointed out: Standing is a peculiar concept in constitutional law
because in some cases, suits are not brought by parties who have been personally injured by
the operation of a law or any other government act but by concerned citizens, taxpayers or
voters who actually sue in the public interest. But even if, strictly speaking, the petitioners are not
covered by the definition, it is still within the wide discretion of the Court to waive the requirement
and so remove the impediment to its addressing and resolving the serious constitutional
questions raised.[64]
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is
appropriate or ripe for adjudication, considering that although the selection process commenced
by the JBC is going on, there is yet no final list of nominees; hence, there is no imminent
controversy as to whether such list must be submitted to the incumbent President, or reserved
for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for
judicial determination, pointing out that petitioner De Castro has not even shown that the JBC
has already completed its selection process and is now ready to submit the list to the incumbent
President; and that petitioner De Castro is merely presenting a hypothetical scenario that is
clearly not sufficient for the Court to exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castros petition rests on an
overbroad and vague allegation of political tension, which is insufficient basis for the Court to
exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory
opinion on what the JBC and the President should do, and are not invoking any issues that are
justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal rights and no
assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege any
action taken by the JBC, but simply avers that the conditional manifestations of two Members of
the Court, accented by the divided opinions and interpretations of legal experts, or associations
of lawyers and law students on the issues published in the daily newspapers are matters of
paramount and transcendental importance to the bench, bar and general public; that
PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also
to indicate what specific action should be done by the JBC; that Mendoza does not even attempt
to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court
should rule for the guidance of the JBC; that the fact that the Court supervises the JBC does not
automatically imply that the Court can rule on the issues presented in the Mendoza petition,
because supervision involves oversight, which means that the subordinate officer or body must
first act, and if such action is not in accordance with prescribed rules, then, and only then, may
the person exercising oversight order the action to be redone to conform to the prescribed rules;
that the Mendoza petition does not allege that the JBC has performed a specific act susceptible
to correction for being illegal or unconstitutional; and that the Mendoza petition asks the Court to
issue an advisory ruling, not to exercise its power of supervision to correct a wrong act by the
JBC, but to declare the state of the law in the absence of an actual case or controversy.
President; the strong position that the incumbent President is already prohibited under Section
15, Article VII from making any appointments, including those to the Judiciary, starting on May
10, 2010 until June 30, 2010; and the contrary position that the incumbent President is not so
prohibited are only some of the real issues for determination. All such issues establish the
ripeness of the controversy, considering that for some the short list must be submitted before the
vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction, or a merely
hypothetical exercise. The resolution of the controversy will surely settle with finality the nagging
questions that are preventing the JBC from moving on with the process that it already began, or
that are reasons persuading the JBC to desist from the rest of the process.
We need not await the occurrence of the vacancy by May 17, 2010 in order for the
principal issue to ripe for judicial determination by the Court. It is enough that one alleges
conduct arguably affected with a constitutional interest, but seemingly proscribed by the
Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional
interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient
facts before it to enable it to intelligently adjudicate the issues. [65]Herein, the facts are not in
doubt, for only legal issues remain.
Substantive Merits
I

Prohibition under Section 15, Article VII does not apply

We hold that the petitions set forth an actual case or controversy that is ripe for judicial
determination. The reality is that the JBC already commenced the proceedings for the selection to appointments to fill a vacancy in the Supreme Court
of the nominees to be included in a short list to be submitted to the President for consideration of
which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is or to other appointments to the Judiciary
not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the list of nominees to the incumbent
outgoing President or to the next President, makes the situation ripe for judicial determination,
because the next steps are the public interview of the candidates, the preparation of the short list
of candidates, and the interview of constitutional experts, as may be needed.
Two constitutional provisions are seemingly in conflict.

A part of the question to be reviewed by the Court is whether the JBC properly
initiated the process, there being an insistence from some of the oppositors-intervenors that the
JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part The first, Section 15, Article VII (Executive Department), provides:
is, of course, whether the JBC may resume its process until the short list is prepared, in view of
the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint
one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an
Associate Justice) within 90 days from the occurrence of the vacancy. Section 15. Two months immediately before the next presidential
elections and up to the end of his term, a President or Acting President shall
not make appointments, except temporary appointments to executive
positions when continued vacancies therein will prejudice public service or
The ripeness of the controversy for judicial determination may not be doubted. The endanger public safety.
challenges to the authority of the JBC to open the process of nomination and to continue the
process until the submission of the list of nominees; the insistence of some of the petitioners to
compel the JBC through mandamus to submit the short list to the incumbent President; the
counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the
incumbent President on the ground that said list should be submitted instead to the next
The other, Section 4 (1), Article VIII (Judicial Department), states:

Section 4. (1). The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members. Any vacancy shall
be filled within ninety days from the occurrence thereof.
In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino
and Inting, submit that the incumbent President can appoint the successor of Chief Justice Puno
upon his retirement on May 17, 2010, on the ground that the prohibition against presidential
appointments under Section 15, Article VII does not extend to appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional Commission reveal that the
framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such
meticulousness indicates that the organization and arrangement of the provisions of the
Constitution were not arbitrarily or whimsically done by the framers, but purposely made to
reflect their intention and manifest their vision of what the Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the allocation of the
awesome powers of government among the three great departments, the Legislative (Article VI),
the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a
true recognition of the principle of separation of powers that underlies the political structure, as
Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in
his sponsorship speech:
We have in the political part of this Constitution opted for the
separation of powers in government because we believe that the only way
to protect freedom and liberty is to separate and divide the awesome
powers of government. Hence, we return to the separation of powers
doctrine and the legislative, executive and judicial departments. [66]
As can be seen, Article VII is devoted to the Executive Department, and, among
others, it lists the powers vested by the Constitution in the President. The presidential power of
appointment is dealt with in Sections 14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the duties and
qualifications of Members of the Supreme Court, among others. Section 4(1) and Section 9 of
this Article are the provisions specifically providing for the appointment of Supreme Court
Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only
be made by the President upon the submission of a list of at least three nominees by the JBC;
Section 4(1) of the Article mandates the President to fill the vacancy within 90 days from the
occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in Section 15, Article VII
to the appointment of Members of the Supreme Court, they could have explicitly done so. They
could not have ignored the meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the Supreme Court in Article VIII itself,
most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that
the prohibition against the President or Acting President making appointments within two months
before the next presidential elections and up to the end of the Presidents or Acting Presidents
term does not refer to the Members of the Supreme Court.
Although Valenzuela[67] came to hold that the prohibition covered even judicial
appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the
deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by
then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the
Constitutional Commission, about the prohibition not being intended to apply to the
appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should
prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1),
Article VIII, viz:
V . Intent of the Constitutional Commission
The journal of the Commission which drew up the present
Constitution discloses that the original proposal was to have an eleven-
member Supreme Court. Commissioner Eulogio Lerum wanted to increase
the number of Justices to fifteen. He also wished to ensure that that number
would not be reduced for any appreciable length of time (even only
temporarily), and to this end proposed that any vacancy must be filled within
two months from the date that the vacancy occurs. His proposal to have a
15-member Court was not initially adopted. Persisting however in his desire
to make certain that the size of the Court would not be decreased for any
substantial period as a result of vacancies, Lerum proposed the insertion in
the provision (anent the Courts membership) of the same mandate that IN
CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO
 MONTHS FROM OCCURRENCE THEREOF. He later agreed to
suggestions to make the period three, instead of two, months. As thus
amended, the proposal was approved. As it turned out, however, the
Commission ultimately agreed on a fifteen-member Court. Thus it was that
the section fixing the composition of the Supreme Court came to
include a command to fill up any vacancy therein within 90 days from
its occurrence.
In this connection, it may be pointed out that that instruction that any
vacancy shall be filled within ninety days (in the last sentence of Section 4
(1) of Article VIII) contrasts with the prohibition in Section 15, Article VII,
which is couched in stronger negative language - that a President or Acting
President shall not make appointments
The commission later approved a proposal of Commissioner Hilario
G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9
of Article VIII, the following paragraph: WITH RESPECT TO LOWER
COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN
NINETY DAYS FROM THE SUBMISSION OF THE LIST (of nominees by
the Judicial and Bar Council to the President). Davide stated that his
purpose was to provide a uniform rule for lower courts. According to him,
the 90-day period should be counted from submission of the list of
nominees to the President in view of the possibility that the President might
reject the list submitted to him and the JBC thus need more time to submit a
new one.
On the other hand, Section 15, Article VII - which in effect deprives
the President of his appointing power two months immediately before the
next presidential elections up to the end ofhis term - was approved without
discussion.[68]
However, the reference to the records of the Constitutional Commission did not advance or
support the result in Valenzuela. Far to the contrary, the records disclosed the express intent of
the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum, a
command [to the President] to fill up any vacancy therein within 90 days from its occurrence,
which even Valenzuela conceded.[69] The exchanges during deliberations of the Constitutional
Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court
within the 90-day period was a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the Supreme
Court, together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection
reads: Any vacancy shall be filled within ninety days from the
occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the
vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact that
in the past 30 years, seldom has the Court had a complete
complement.[70]
Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative,
operating to impose a duty that may be enforced[71] should not be disregarded. Thereby,
Sections 4(1) imposes on the President the imperative duty to make an appointment of a
Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by
the President to do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the
vacancy in the Supreme Court was undoubtedly a special provision to establish a definite
mandate for the President as the appointing power, and cannot be defeated by mere judicial
interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was
couched in stronger negative language. Such interpretation even turned out to be conjectural, in
light of the records of the Constitutional Commissions deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly warranted. According
to an authority on statutory construction:[72]
xxx the court should seek to avoid any conflict in the provisions of
the statute by endeavoring to harmonize and reconcile every part so that
each shall be effective. It is not easy to draft a statute, or any other writing
for that matter, which may not in some manner contain conflicting
provisions. But what appears to the reader to be a conflict may not have
seemed so to the drafter. Undoubtedly, each provision was inserted for a
definite reason. Often by considering the enactment in its entirety, what
appears to be on its face a conflict may be cleared up and the provisions
reconciled.
Consequently, that construction which will leave every word
operative will be favored over one which leaves some word or provision
meaningless because of inconsistency. But a word should not be given
effect, if to do so gives the statute a meaning contrary to the intent of the
legislature. On the other hand, if full effect cannot be given to the words of a
statute, they must be made effective as far as possible. Nor should the
 provisions of a statute which are inconsistent be harmonized at a sacrifice of
the legislative intention. It may be that two provisions are irreconcilable; if
so, the one which expresses the intent of the law-makers should control.
And the arbitrary rule has been frequently announced that where there is an
irreconcilable conflict between the different provisions of a statute, the
provision last in order of position will prevail, since it is the latest expression
of the legislative will. Obviously, the rule is subject to deserved criticism. It is
seldom applied, and probably then only where an irreconcilable conflict
exists between different sections of the same act, and after all other means
of ascertaining the meaning of the legislature have been exhausted. Where
the conflict is between two statutes, more may be said in favor of the rules
application, largely because of the principle of implied repeal.
In this connection, PHILCONSAs urging of a revisit and a review of Valenzuela is
timely and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional
Commission to have Section 4 (1), Article VIII stand independently of any other provision, least
of all one found in Article VII. It further ignored that the two provisions had no irreconcilable
conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are
not to unduly interpret, and should not accept an interpretation that defeats the intent of the
framers.[73]
Consequently, prohibiting the incumbent President from appointing a Chief Justice on the
premise that Section 15, Article VII extends to appointments in the Judiciary cannot be
sustained. A misinterpretation like Valenzuela should not be allowed to last after its false
premises have been exposed.[74] It will not do to merely distinguish Valenzuela from these cases,
for the result to be reached herein is entirely incompatible with
what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the
dustbin of the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other appointments in the
Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as
part of Article VII was to eliminate midnight appointments from being made by an outgoing Chief
Executive in the mold of the appointments dealt with in the leading case of Aytona v.
Castillo.[75] In fact, in Valenzuela, the Court so observed, stating that:
xxx it appears that Section 15, Article VII is directed against two
types of appointments: (1) those made for buying votes and (2) those made
for partisan considerations. The first refers to those appointments made
within the two months preceding a Presidential election and are similar to
those which are declared election offenses in the Omnibus Election
Code, viz.:
xxx
The second type of appointments prohibited by Section 15, Article
VII consists of the so-called midnight appointments. In Aytona v. Castillo, it
was held that after the proclamation of Diosdado Macapagal as duly elected
President, President Carlos P. Garcia, who was defeated in his bid for
reelection, became no more than a caretaker administrator whose duty was
to prepare for the orderly transfer of authority to the incoming
President. Said the Court:
The filling up of vacancies in important positions, if
few, and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for
the appointment and appointee's qualifications may
undoubtedly be permitted. But the issuance of 350
appointments in one night and the planned induction of
almost all of them in a few hours before the inauguration
of the new President may, with some reason, be regarded
by the latter as an abuse of Presidential prerogatives, the
steps taken being apparently a mere partisan effort to fill
all vacant positions irrespective of fitness and other
conditions, and thereby to deprive the new administration
of an opportunity to make the corresponding
appointments.
As indicated, the Court recognized that there may well be
appointments to important positions which have to be made even after the
proclamation of the new President. Such appointments, so long as they
are few and so spaced as to afford some assurance of deliberate
action and careful consideration of the need for the appointment and
the appointees qualifications, can be made by the outgoing
President. Accordingly, several appointments made by President Garcia,
which were shown to have been well considered, were upheld.
Section 15, Article VII has a broader scope than
the Aytona ruling. It may not unreasonably be deemed to contemplate
not only midnight appointments those made obviously for partisan
reasons as shown by their number and the time of their making but
also appointments presumed made for the purpose of influencing the
outcome of the Presidential election.
 On the other hand, the exception in the same Section 15 of Article
VII allowing appointments to be made during the period of the ban therein
provided is much narrower than that recognized in Aytona. The exception
allows only the making of temporary appointments to executive positions
when continued vacancies will prejudice public service or endanger public
safety. Obviously, the article greatly restricts the appointing power of the
President during the period of the ban.
Considering the respective reasons for the time frames for filling
vacancies in the courts and the restriction on the President's power of
appointment, it is this Courts view that, as a general proposition, in case of
conflict, the former should yield to the latter. Surely, the prevention of vote-
buying and similar evils outweighs the need for avoiding delays in filling up
of court vacancies or the disposition of some cases. Temporary vacancies
can abide the period of the ban which, incidentally and as
earlier pointed out, comes to exist only once in every six years.Moreover,
those occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and permanent in
their effects. They may, as earlier pointed out, in fact influence the results of
elections and, for that reason, their making is considered an election
offense.[76]
Given the background and rationale for the prohibition in Section 15, Article VII, we
have no doubt that the Constitutional Commission confined the prohibition to appointments
made in the Executive Department. The framers did not need to extend the prohibition to
appointments in the Judiciary, because their establishment of the JBC and their subjecting the
nomination and screening of candidates for judicial positions to the unhurried and
deliberate prior process of the JBC ensured that there would no longer
be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were
made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of
his administration out of a desire to subvert the policies of the incoming President or for
partisanship,[77] the appointments to the Judiciary made after the establishment of the JBC would
not be suffering from such defects because of the JBCs prior processing of candidates. Indeed,
it is axiomatic in statutory construction that the ascertainment of the purpose of the enactment is
a step in the process of ascertaining the intent or meaning of the enactment, because the reason
for the enactment must necessarily shed considerable light on the law of the statute, i.e., the
intent; hence, the enactment should be construed with reference to its intended scope and
purpose, and the court should seek to carry out this purpose rather than to defeat it.[78]
Also, the intervention of the JBC eliminates the danger that appointments to the
Judiciary can be made for the purpose of buying votes in a coming presidential election, or of
satisfying partisan considerations. The experience from the time of the establishment of the JBC
shows that even candidates for judicial positions at any level backed by people influential with
the President could not always be assured of being recommended for the consideration of the
President, because they first had to undergo the vetting of the JBC and pass muster
there. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by
doing away with the intervention of the Commission on Appointments. This insulating process
was absent from the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments
in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when
it met on March 9, 1998 to discuss the question raised by some sectors about the
constitutionality of xxx appointments to the Court of Appeals in light of the forthcoming
presidential elections. He assured that on the basis of the (Constitutional) Commissions records,
the election ban had no application to appointments to the Court of Appeals. [79] This confirmation
was accepted by the JBC, which then submitted to the President for consideration the
nominations for the eight vacancies in the Court of Appeals.[80]
The fault of Valenzuela was that it accorded no weight and due consideration to the
confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to
determine the intent of the framers rather than on the deliberations of the Constitutional
Commission. Much of the unfounded doubt about the Presidents power to appoint during the
period of prohibition in Section 15, Article VII could have been dispelled since its promulgation
on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of
a distinguished member of the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section
16) concern the appointing powers of the President.
Section 14 speaks of the power of the succeeding President to revoke appointments
made by an Acting President,[81] and evidently refers only to appointments in the Executive
Department. It has no application to appointments in the Judiciary,
because temporary or acting appointments can only undermine the independence of the
Judiciary due to their being revocable at will.[82] The letter and spirit of the Constitution safeguard
that independence. Also, there is no law in the books that authorizes the revocation of
appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges of the
first and second level courts and the Justices of the third level courts may only be removed for
cause, but the Members of the Supreme Court may be removed only by impeachment.
Section 16 covers only the presidential appointments that require confirmation by the
Commission on Appointments. Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on Appointments after the requirement was
removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored
requirement did not include appointments to the Judiciary.[83]
Section 14, Section 15, and Section 16 are obviously of the same character, in that
they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer
only to appointments within the Executive Department renders conclusive that Section 15 also
applies only to the Executive Department. This conclusion is consistent with the rule that every
part of the statute must be interpreted with reference to the context, i.e. that every part must be
considered together with the other parts, and kept subservient to the general intent of the whole
enactment.[84] It is absurd to assume that the framers deliberately situated Section
15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of
presidential appointments. If that was their intention in respect of appointments to the Judiciary,
the framers, if only to be clear, would have easily and surely inserted a similar prohibition in
Article VIII, most likely within Section 4 (1) thereof.
 Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments xxx. The Members of the Supreme Court xxx shall be appointed by
to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the President from a list of at least three nominees prepared by the Judicial
the Judicial Department from the Executive and Legislative Departments. Such a holding will tie and Bar Council for any vacancy. Such appointments need no confirmation.
the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for
the Presidency in a presidential election. Consequently, the wisdom of having the new xxx
President, instead of the current incumbent President, appoint the next Chief Justice is itself
suspect, and cannot ensure judicial independence, because the appointee can also become
beholden to the appointing authority. In contrast, the appointment by the incumbent President
does not run the same risk of compromising judicial independence, precisely because her term
will end by June 30, 2010.
The provision clearly refers to an appointee coming into the Supreme Court from the
outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for
the Supreme Court, not of those who are already members or sitting justices of the Court, all of
Sixth. The argument has been raised to the effect that there will be no need for the whom have previously been vetted by the JBC.
incumbent President to appoint during the prohibition period the successor of Chief Justice Puno
within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days
of the 90 days mandated in Section 4(1), Article VIII remaining.
Can the President, therefore, appoint any of the incumbent Justices of the Court as
Chief Justice?

The argument is flawed, because it is focused only on the coming vacancy occurring
from Chief Justice Punos retirement by May 17, 2010. It ignores the need to apply Section 4(1)
to every situation of a vacancy in the Supreme Court. The question is not squarely before us at the moment, but it should lend itself to a
deeper analysis if and when circumstances permit. It should be a good issue for the proposed
Constitutional Convention to consider in the light of Senate President Juan Ponce Enriles
statement that the President can appoint the Chief Justice from among the sitting justices of the
The argument also rests on the fallacious assumption that there will still be time Court even without a JBC list.
remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily
demonstrable, as the OSG has shown in its comment.

II

Section 4 (3), Article VII requires the regular elections to be held on the second The Judiciary Act of 1948
Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the
regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such
elections are held on May 14, the period of the prohibition is 109 days. Either period of the
prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme
The posture has been taken that no urgency exists for the President to appoint the successor of
Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of
possible period of the ban of 109 days and the 90-day mandatory period for appointments) in
having the next President appoint the successor.
which the outgoing President would be in no position to comply with the constitutional duty to fill
up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution
could not have intended such an absurdity. In fact, in their deliberations on the mandatory period
for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers
neither discussed, nor mentioned, nor referred to the ban against midnight appointments under
Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to,
because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, Section 12 of the Judiciary Act of 1948 states:
or in any of the lower courts.

Section 12. Vacancy in Office of Chief Justice. In case of a vacancy

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on
whether a JBC list is necessary at all for the President any President to appoint a Chief Justice if
the appointee is to come from the ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:
in the office of Chief Justice of the Supreme Court or of his inability to
perform the duties and powers of his office, they shall devolve upon the
Associate Justice who is first in precedence, until such disability is removed,
or another Chief Justice is appointed and duly qualified. This provision shall
apply to every Associate Justice who succeeds to the office of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in the office of
the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and
powers. In either of such circumstances, the duties and powers of the office of the Chief Justice
shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is
appointed or until the disability is removed.
Historically, under the present Constitution, there has been no wide gap between the
retirement and the resignation of an incumbent Chief Justice, on one hand, and the appointment
to and assumption of office of his successor, on the other hand. As summarized in the comment
of the OSG, the chronology of succession is as follows:
1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief
Justice Pedro Yap was appointed on the same day;

Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court
has hereby resolved the question of consequence, we do not find it amiss to confront the matter
now. 2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo
Fernan was appointed on the same day;

We cannot agree with the posture.

3.
A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a
Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list
of at least three nominees prepared by the JBC for every vacancy, which appointments require
no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or 4.
she is appointed by the President as Chief Justice, and the appointment is never in an acting
capacity. The express reference to a Chief Justice abhors the idea that the framers
contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise,
they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the
Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice
soonest is to defy the plain intent of the Constitution. 5.
When Chief Justice Fernan resigned on December 7, 1991, Chief
Justice Andres Narvasa was appointed the following day, December 8,
1991;
When Chief Justice Narvasa retired on November 29, 1998, Chief
Justice Hilario Davide, Jr. was sworn into office the following early
morning of November 30, 1998;
When Chief Justice Davide retired on December 19, 2005, Chief
Justice Artemio Panganiban was appointed the next day, December
20, 2005; and

For sure, the framers intended the position of Chief Justice to be permanent, not one
to be occupied in an acting or temporary capacity. In relation to the scheme of things under the
present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in 6. When Chief Justice Panganiban retired on December 6, 2006, Chief
which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is Justice Reynato S. Puno took his oath as Chief Justice
unable to perform the duties and powers of the office. It ought to be remembered, however, that at midnight of December 6, 2006.[85]
it was enacted because the Chief Justice appointed under the 1935 Constitution was subject to
the confirmation of the Commission on Appointments, and the confirmation process might take
longer than expected.
III

Writ of mandamus does not lie against the JBC

The appointment of the next Chief Justice by the incumbent President is preferable to
having the Associate Justice who is first in precedence take over. Under the Constitution, the
heads of the Legislative and Executive Departments are popularly elected, and whoever are
elected and proclaimed at once become the leaders of their respective Departments. However,
May the JBC be compelled to submit the list of nominees to the President?
the lack of any appointed occupant of the office of Chief Justice harms the independence of the
Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice
performs functions absolutely significant to the life of the nation. With the entire Supreme Court
being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There
being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully
for the incumbent President to make within the 90-day period from May 17, 2010, there is no neglects the performance of an act that the law specifically enjoins as a duty resulting from an
justification to insist that the successor of Chief Justice Puno be appointed by the next President. office, trust, or station.[86] It is proper when the act against which it is directed is one addressed
to the discretion of the tribunal or officer. Mandamus is not available to direct the exercise of a
judgment or discretion in a particular way.[87]
For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear
legal right to the act demanded; (b) it must be the duty of the defendant to perform the act,
because it is mandated by law; (c) the defendant unlawfully neglects the performance of the
duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there
is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least
three nominees to the President for every vacancy in the Judiciary:
Section 8. xxx
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of lower
courts shall be appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every
vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments
within ninety days from the submission of the list.
However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the
vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within 90
days from the submission of the list, in the case of the lower courts. The 90-day period is
directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the
candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the President the list of
nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one
of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion
to submit the list to the President after the vacancy occurs, because that shortens the 90-day
period allowed by the Constitution for the President to make the appointment. For the JBC to do
so will be unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the ample time granted under the
Constitution to reflect on the qualifications of the nominees named in the list of the JBC before
making the appointment.
The duty of the JBC to submit a list of nominees before the start of the Presidents
mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose
names will be in the list to be submitted to the President lies within the discretion of the JBC. The
object of the petitions for mandamus herein should only refer to the duty to submit to the
President the list of nominees for every vacancy in the Judiciary, because in order to constitute
unlawful neglect of duty, there must be an unjustified delay in performing that
duty.[88] For mandamus to lie against the JBC, therefore, there should be an unexplained delay
on its part in recommending nominees to the Judiciary, that is, in submitting the list to the
President.
The distinction between a ministerial act and a discretionary one has been delineated
in the following manner:
The distinction between a ministerial and discretionary act is well
delineated. A purely ministerial act or duty is one which an officer or
tribunal performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without regard to or the
exercise of his own judgment upon the propriety or impropriety of the
act done. If the law imposes a duty upon a public officer and gives him
the right to decide how or when the duty shall be performed, such duty
is discretionary and not ministerial. The duty is ministerial only when
the discharge of the same requires neither the exercise of official
discretion or judgment.[89]
Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ
of mandamus against the JBC. The actions for that purpose are premature, because it is clear
that the JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees
to the President to fill the vacancy created by the compulsory retirement of Chief Justice Puno.
IV
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion is ineluctable that only the
President can appoint the Chief Justice. Hence, Sorianos petition for prohibition in G.R. No.
191032, which proposes to prevent the JBC from intervening in the process of nominating the
successor of Chief Justice Puno, lacks merit.
SO ORDERED.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of
merit. The challenge mounted against the composition of the JBC based on the allegedly
unconstitutional allocation of a vote each to the ex officio members from the Senate and the
House of Representatives, thereby prejudicing the chances of some candidates for nomination
by raising the minimum number of votes required in accordance with the rules of the JBC, is not
based on the petitioners actual interest, because they have not alleged in their petition that they
were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners
lack locus standi on that issue.

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and
G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature;

2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342
for lack of merit; and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial
and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the
vacancy to be created by the compulsory retirement of Chief Justice
Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief Justice;

(c) To submit to the incumbent President the short list of nominees for the
position of Chief Justice on or before May 17, 2010; and

(d) To continue its proceedings for the nomination of candidates to fill other
vacancies in the Judiciary and submit to the President the short list of
nominees corresponding thereto in accordance with this decision.
 x--------------------------------------------------------------------------- x

EN BANC

B/GEN. (RET.) FRANCISCO V. G.R. No. 170165 DECISION

GUDANI AND LT. COL.

ALEXANDER F. BALUTAN TINGA, J.:

Petitioners, Present:

PANGANIBAN, C.J., A most dangerous general proposition is foisted on the Court

that soldiers who defy orders of their superior officers are exempt
PUNO,

- versus - QUISUMBING,

YNARES-SANTIAGO,
from the strictures of military law and discipline if such defiance is predicated on an act
SANDOVAL-GUTIERREZ, otherwise valid under civilian law. Obedience and deference to the military chain of command
and the President as commander-in-chief are the cornerstones of a professional military in the
CARPIO, firm cusp of civilian control. These values of obedience and deference expected of military
officers are content-neutral, beyond the sway of the officers own sense of what is prudent or
AUSTRIA-MARTINEZ, rash, or more elementally, of right or wrong. A self-righteous military invites itself as the
scoundrels activist solution to the ills of participatory democracy.
LT./GEN. GENEROSO S. SENGA CORONA,

AS CHIEF OF STAFF OF THE CARPIO-MORALES,

ARMED FORCES OF THE CALLEJO, SR.,
PHILIPPINES, COL. GILBERTO AZCUNA,
JOSE C. ROA AS THE PRE-TRIAL TINGA,
Petitioners seek the annulment of a directive from President Gloria Macapagal-
Arroyo[1] enjoining them and other military officers from testifying before Congress without the
Presidents consent. Petitioners also pray for injunctive relief against a pending preliminary
investigation against them, in preparation for possible court-martial proceedings, initiated within
the military justice system in connection with petitioners violation of the aforementioned directive.

INVESTIGATING OFFICER, THE CHICO-NAZARIO,

The Court is cognizant that petitioners, in their defense, invoke weighty constitutional
principles that center on fundamental freedoms enshrined in the Bill of Rights. Although these
PROVOST MARSHALL GENERAL GARCIA, and
concerns will not be
OF THE ARMED FORCES OF THE VELASCO, JR., JJ.

PHILIPPINES AND THE GENERAL

addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount
COURT-MARTIAL, importance to our civil society, even if not determinative of the resolution of this petition. Had the
relevant issue before us been the right of the Senate to compel the testimony of petitioners, the
Respondents. constitutional questions raised by them would have come to fore. Such a scenario could have
very well been presented to the Court in such manner, without the petitioners having had to
Promulgated: violate a direct order from their commanding officer. Instead, the Court has to resolve whether
petitioners may be subjected to military discipline on account of their defiance of a direct order of
the AFP Chief of Staff.

August 15, 2006

 The solicited writs of certiorari and prohibition do not avail; the petition must be
denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both
petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel
Alexander Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of the subject
incidents, both Gen. Gudani and Col. Balutan were assigned to the Philippine Military Academy
(PMA) in Baguio City, the former as the PMA Assistant Superintendent, and the latter as the
Assistant Commandant of Cadets.[2]
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of
the AFP to appear at a public hearing before the Senate Committee on National Defense and
Security (Senate Committee) scheduled on 28 September 2005. The hearing was scheduled
after topics concerning the conduct of the 2004 elections emerged in the public eye, particularly
allegations of massive cheating and the surfacing of copies of an audio excerpt purportedly of a
phone conversation between President Gloria Macapagal Arroyo and an official of the
Commission on Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio
Garcillano. At the time of the 2004 elections, Gen. Gudani had been designated as commander,
and Col. Balutan a member, of Joint Task Force Ranao by the AFP Southern Command. Joint
Task Force Ranao was tasked with the maintenance of peace and order during the 2004
elections in the provinces of Lanao del Norte and Lanao del Sur.[3] `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen.
Senga) were among the several AFP officers who received a letter invitation from Sen. Biazon to
attend the 28 September 2005 hearing. On 23 September 2005, Gen. Senga replied through a
letter to Sen. Biazon that he would be unable to attend the hearing due to a previous
commitment in Brunei, but he nonetheless directed other officers from the AFP who were invited
to attend the hearing.[4]
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum
addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was
signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga. [5] Noting that Gen. Gudani and
Col. Balutan had been invited to attend the Senate Committee hearing on 28 September 2005,
the Memorandum directed the two officers to attend the hearing.[6] Conformably, Gen. Gudani
and Col. Balutan filed their respective requests for travel authority addressed to the PMA
Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement
of the hearing scheduled for the following day, since the AFP Chief of Staff was himself unable
to attend said hearing, and that some of the invited officers also could not attend as they were
attending to other urgent operational matters. By this time, both Gen. Gudani and Col. Balutan
had already departed Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted
to the PMA Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP
PERSONNEL SHALL APPEAR BEFORE ANY CONGRESSIONAL OR
SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN
FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC)
ACCORDINGLY.[7]
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator
that no approval has been granted by the President to any AFP officer to appear before the
hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present
as the hearing started, and they both testified as to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has
offered additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The
OSG manifests that the couriers of the AFP Command Center had attempted to deliver the radio
message to Gen. Gudanis residence in a subdivision in ParaaqueCity late in the night of 27
September 2005, but they were not permitted entry by the subdivision guards. The next day, 28
September 2005, shortly before the start of the hearing, a copy of Gen. Sengas letter to Sen.
Biazon sent earlier that day was handed at the Senate by Commodore Amable B. Tolentino of
the AFP Office for Legislative Affairs to Gen. Gudani, who replied that he already had a
copy. Further, Gen. Senga called Commodore Tolentino on the latters cell phone and asked to
talk to Gen. Gudani, but Gen. Gudani refused. In response, Gen. Senga instructed Commodore
Tolentino to inform Gen. Gudani that it was an order, yet Gen. Gudani still refused to take Gen.
Sengas call.[8]
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of
Gen. Senga issued a statement which noted that the two had appeared before the Senate
Committee in spite of the fact that a guidance has been given that a Presidential approval should
be sought prior to such an appearance; that such directive was in keeping with the time[-
]honored principle of the Chain of Command; and that the two officers disobeyed a legal order,
in violation of A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be
subjected to General Court Martial proceedings x x x Both Gen. Gudani and Col. Balutan were
likewise relieved of their assignments then.[9]
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued
Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. enjoined officials of the
executive department including the military establishment from appearing in any legislative
inquiry without her approval.[10] This Court subsequently ruled on the constitutionality of the said
executive order in Senate v. Ermita.[11] The relevance of E.O. 464 and Senate to the present
petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General Senga, through
Col. Henry A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the
Provost Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance
before Col. Galarpe, both petitioners invoked their right to remain silent.[12] The following day,
Gen. Gudani was compulsorily retired from military service, having reached the age of 56. [13]
In an Investigation Report dated 6 October 2005, the OPMG recommended that
petitioners be charged with violation of Article of War 65, on willfully disobeying a superior
officer, in relation to Article of War 97, on conduct prejudicial to the good order and military
discipline.[14] As recommended, the case was referred to a Pre-Trial Investigation Officer (PTIO)
preparatory to trial by the General Court Martial (GCM).[15] Consequently, on 24 October 2005,
petitioners were separately served with Orders respectively addressed to them and signed by
respondent Col. Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders
directed petitioners to appear in person before Col. Roa at the Pre-Trial Investigation of the
Charges for violation of Articles 65[16] and 97[17] of Commonwealth Act No. 408,[18] and to submit
their counter-affidavits and affidavits of witnesses at the Office of the Judge Advocate
General.[19] The Orders were accompanied by respective charge sheets against petitioners,
accusing them of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was
filed, particularly seeking that (1) the order of President Arroyo coursed through Gen. Senga
preventing petitioners from testifying before Congress without her prior approval be declared
unconstitutional; (2) the charges stated in the charge sheets against petitioners be quashed; and
(3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting for
and on their behalf or orders, be permanently enjoined from proceeding against petitioners, as a
consequence of their having testified before the Senate on 28 September 2005. [20]
Petitioners characterize the directive from President Arroyo requiring her prior approval before
any AFP personnel appear before Congress as a gag order, which violates the principle of
separation of powers in government as it interferes with the investigation of the Senate
Committee conducted in aid of legislation. They also equate the gag order with culpable violation
of the Constitution, particularly in relation to the publics constitutional right to information and
transparency in matters of public concern. Plaintively, petitioners claim that the Filipino people
have every right to hear the [petitioners] testimonies, and even if the gag order were
unconstitutional, it still was tantamount to the crime of obstruction of justice. Petitioners further
argue that there was no law prohibiting them from testifying before the Senate, and in fact, they
were appearing in obeisance to the authority of Congress to conduct inquiries in aid of
legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction
on account of his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I
of the Articles of War defines persons subject to military law as all officers and soldiers in the
active service of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of
petitioners in violating Articles 65 and 97 of the Articles of War is not an issue before this Court,
especially considering that per records, petitioners have not yet been subjected to court martial
proceedings. Owing to the absence of such proceedings, the correct inquiry should be limited to
whether respondents could properly initiate such proceedings preparatory to a formal court-
martial, such as the aforementioned preliminary investigation, on the basis of petitioners acts
surrounding their testimony before the Senate on 28 September 2005. Yet this Court, consistent
with the principle that it is not a trier of facts at first instance,[21] is averse to making any
authoritative findings of fact, for that function is first for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been
commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the
Senate Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing
and testified before the Committee, despite the fact that the day before, there was an order from
Gen. Senga (which in turn was sourced per instruction from President Arroyo) prohibiting them
from testifying without the prior approval of the President. Petitioners do not precisely admit
before this Court that they had learned of such order prior to their testimony, although the OSG
asserts that at the very least, Gen. Gudani already knew of such order before he testified.[22] Yet
while this fact may be ultimately material in the court-martial proceedings, it is not determinative
of this petition, which as stated earlier, does not proffer as an issue whether petitioners are guilty
of violating the Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of
Gen. Senga, which emanated from the President, could lead to any investigation for court-
martial of petitioners. It has to be acknowledged as a general principle [23] that AFP personnel of
whatever rank are liable under military law for violating a direct order of an officer superior in
rank. Whether petitioners did violate such an order is not for the Court to decide, but it will be
necessary to assume, for the purposes of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Courts ruling in Senate on the
present petition. Notably, it is not alleged that petitioners were in any way called to task for
violating E.O. 464, but instead, they were charged for violating the direct order of Gen.
Senga not to appear before the Senate Committee, an order that stands independent of
the executive order. Distinctions are called for, since Section 2(b) of E.O. 464 listed 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, as among those public
officials required in Section 3 of E.O. 464 to secure prior consent of the President prior to
appearing before either House of Congress. The Court in Senate declared both Section 2(b) and
Section 3 void,[24] and the impression may have been left following Senate that it settled as
doctrine, that the President is prohibited from requiring military personnel from attending
congressional hearings without having first secured prior presidential consent. That impression
is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is
encumbered by significant limitations. Insofar as E.O. 464 compelled officials of the executive
branch to seek prior presidential approval before appearing before Congress, the notion of
executive control also comes into consideration.[25] However, the ability of the President to
require a military official to secure prior consent before appearing before Congress pertains to a
wholly different and independent specie of presidential authoritythe commander-in-chief powers
of the President. By tradition and jurisprudence, the commander-in-chief powers of the President
are not encumbered by the same degree of restriction as that which may attach to executive
privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this
petition as well as the issues raised herein. The decision in Senate was rendered with the
comfort that the nullification of portions of E.O. 464 would bear no impact on the present petition
since petitioners herein were not called to task for violating the executive order. Moreover, the
Court was then cognizant that Senate and this case would ultimately hinge on disparate legal
issues. Relevantly, Senate purposely did not touch upon or rule on the faculty of the President,
under the aegis of the commander-in-chief powers[26] to require military officials from securing
prior consent before appearing before Congress. The pertinent factors in considering that
question are markedly outside of those which did become relevant in adjudicating the issues
raised in Senate. It is in this petition that those factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the heart of the
matter. General Gudani argues that he can no longer fall within the jurisdiction of the court-
martial, considering his retirement last 4 October 2005. He cites Article 2, Title I of
Commonwealth Act No. 408, which defines persons subject to military law as, among others, all
officers and soldiers in the active service of the [AFP], and points out that he is no longer in the
active service.
This point was settled against Gen. Gudanis position in Abadilla v. Ramos,[27] where
the Court declared that an officer whose name was dropped from the roll of officers cannot be
considered to be outside the jurisdiction of military authorities when military justice proceedings
were initiated against him before the termination of his service. Once jurisdiction has been
acquired over the officer, it continues until his case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel
Abadilla at the time of the alleged offenses. This jurisdiction having been
vested in the military authorities, it is retained up to the end of the
proceedings against Colonel Abadilla. Well-settled is the rule that
jurisdiction once acquired is not lost upon the instance of the parties but
continues until the case is terminated.[28]
Citing Colonel Winthrops treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We
find the following passage which goes against the contention of the
petitioners, viz
3. Offenders in general Attaching of
jurisdiction. It has further been held, and is now settled
law, in regard to military offenders in general, that if the
military jurisdiction has once duly attached to them
previous to the date of the termination of their legal
period of service, they may be brought to trial by court-
martial after that date, their discharge being meanwhile
withheld. This principle has mostly been applied to
cases where the offense was committed just prior to the
end of the term. In such cases the interests of discipline
clearly forbid that the offender should go unpunished. It
is held therefore that if before the day on which his
service legally terminates and his right to a
discharge is complete, proceedings with a view to
trial are commenced against him as by arrest or the
service of charges, the military jurisdiction will fully
attach and once attached may be continued by a
trial by court-martial ordered and held after the end
of the term of the enlistment of the accused x x x [29]
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts
complained of and the initiation of the proceedings against him occurred before he compulsorily
retired on 4 October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also
points out that under Section 28 of Presidential Decree No. 1638, as amended, [a]n officer or
enlisted man carried in the retired list [of the Armed Forces of the Philippines] shall be subject to
the Articles of War x x x[30] To this citation, petitioners do not offer any response, and in fact have
excluded the matter of Gen. Gudanis retirement as an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
 Petitioners wish to see annulled the gag order that required them to secure
presidential consent prior to their appearance before the Senate, claiming that it violates the
constitutional right to information and transparency in matters of public concern; or if not, is
tantamount at least to the criminal acts of obstruction of justice and grave coercion. However,
the proper perspective from which to consider this issue entails the examination of the basis and
authority of the President to issue such an order in the first place to members of the AFP and the
determination of whether such an order is subject to any limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most
crucial to the democratic way of life, to civilian supremacy over the military, and to the general
stability of our representative system of government. The Constitution reposes final authority,
control and supervision of the AFP to the President, a civilian who is not a member of the armed
forces, and whose duties as commander-in-chief represent only a part of the organic duties
imposed upon the office, the other functions being clearly civil in nature. [31] Civilian supremacy
over the military also countermands the notion that the military may bypass civilian authorities,
such as civil courts, on matters such as conducting warrantless searches and seizures.[32]
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has
allocated specific roles to the legislative and executive branches of government in relation to
military affairs. Military appropriations, as with all other appropriations, are determined by
Congress, as is the power to declare the existence of a state of war. [33]Congress is also
empowered to revoke a proclamation of martial law or the suspension of the writ of habeas
corpus.[34] The approval of the Commission on Appointments is also required before the
President can promote military officers from the rank of colonel or naval captain.[35] Otherwise,
on the particulars of civilian dominance and administration over the military, the Constitution is
silent, except for the commander-in-chief clause which is fertile in meaning and
implication as to whatever inherent martial authority the President may possess. [36]
The commander-in-chief provision in the Constitution is denominated as Section 18,
Article VII, which begins with the simple declaration that [t]he President shall be the
Commander-in-Chief of all armed forces of the Philippines x x x[37] Outside explicit constitutional
limitations, such as those found in Section 5, Article XVI, the commander-in-chief clause vests
on the President, as commander-in-chief, absolute authority over the persons and actions of the
members of the armed forces. Such authority includes the ability of the President to restrict the
travel, movement and speech of military officers, activities which may otherwise be sanctioned
under civilian law.
Reference to Kapunan, Jr. v. De Villa[38] is useful in this regard. Lt. Col. Kapunan was
ordered confined under house arrest by then Chief of Staff (later President) Gen. Fidel Ramos.
Kapunan was also ordered, as a condition for his house arrest, that he may not issue any press
statements or give any press conference during his period of detention. The Court unanimously
upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements
of military discipline. It cannot be gainsaid that certain liberties of
persons in the military service, including the freedom of speech, may
be circumscribed by rules of military discipline. Thus, to a certain
degree, individual rights may be curtailed, because the effectiveness of
the military in fulfilling its duties under the law depends to a large
extent on the maintenance of discipline within its ranks. Hence, lawful
orders must be followed without question and rules must be faithfully
complied with, irrespective of a soldier's personal views on the
matter. It is from this viewpoint that the restrictions imposed on petitioner
Kapunan, an officer in the AFP, have to be considered.[39]
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life
circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the military
package. Those who cannot abide by these limitations normally do not pursue a military career
and instead find satisfaction in other fields; and in fact many of those discharged from the
service are inspired in their later careers precisely by their rebellion against the regimentation of
military life. Inability or unwillingness to cope with military discipline is not a stain on character,
for the military mode is a highly idiosyncratic path which persons are not generally conscripted
into, but volunteer themselves to be part of. But for those who do make the choice to be a
soldier, significant concessions to personal freedoms are expected. After all, if need be, the men
and women of the armed forces may be commanded upon to die for country, even against their
personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been fully
integrated into the democratic system of governance. The constitutional role of the armed forces
is as protector of the people and of the State.[40] Towards this end, the military must insist upon a
respect for duty and a discipline without counterpart in civilian life.[41] The laws and traditions
governing that discipline have a long history; but they are founded on unique military exigencies
as powerful now as in the past.[42] In the end, it must be borne in mind that the armed forces has
a distinct subculture with unique needs, a specialized society separate from civilian society. [43] In
the elegant prose of the eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not
those of politicians and diplomats. They are those of a world apart, a very
ancient world, which exists in parallel with the everyday world but does not
belong to it. Both worlds change over time, and the warrior world adopts in
step to the civilian. It follows it, however, at a distance. The distance can
never be closed, for the culture of the warrior can never be that of
civilization itself.[44]
Critical to military discipline is obeisance to the military chain of command. Willful disobedience
of a superior officer is punishable by court-martial under Article 65 of the Articles of War. [45] An
individual soldier is not free to ignore the lawful orders or duties assigned by his immediate
superiors. For there would be an end of all discipline if the seaman and marines on board a ship
of war [or soldiers deployed in the field], on a distant service, were permitted to
act upon their own opinion of their rights [or their opinion of the

Presidents intent], and to throw off the authority of the commander whenever they supposed it
to be unlawfully exercised.[46]
Further traditional restrictions on members of the armed forces are those imposed on free
speech and mobility. Kapunan is ample precedent in justifying that a soldier may be restrained
by a superior officer from speaking out on certain matters. As a general rule, the discretion of a
military officer to restrain the speech of a soldier under his/her command will be accorded
deference, with minimal regard if at all to the reason for such restraint. It is integral to military
discipline that the soldiers speech be with the consent and approval of the military commander.
The necessity of upholding the ability to restrain speech becomes even more imperative if the
soldier desires to speak freely on political matters. The Constitution requires that [t]he armed
forces shall be insulated from partisan politics, and that [n]o member of the military shall engage
directly or indirectly in any partisan political activity, except to vote.[47] Certainly, no constitutional
provision or military indoctrination will eliminate a soldiers ability to form a personal political
opinion, yet it is vital that such opinions be kept out of the public eye. For one, political belief is a
potential source of discord among people, and a military torn by political strife is incapable of
fulfilling its constitutional function as protectors of the people and of the State. For another, it is
ruinous to military discipline to foment an atmosphere that promotes an active dislike of or
dissent against the President, the commander-in-chief of the armed forces. Soldiers are
constitutionally obliged to obey a President they may dislike or distrust. This fundamental
principle averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our countrys recent past is
marked by regime changes wherein active military dissent from the chain of command formed a
key, though not exclusive, element. The Court is not blind to history, yet it is a judge not of
history but of the Constitution. The Constitution, and indeed our modern democratic order, frown
in no uncertain terms on a politicized military, informed as they are on the trauma of absolute
martial rule. Our history might imply that a political military is part of the natural order, but this
view cannot be affirmed by the legal order. The evolutionary path of our young democracy
necessitates a reorientation from this view, reliant as our socio-political culture has become on it.
At the same time, evolution mandates a similar demand that our system of governance be more
responsive to the needs and aspirations of the citizenry, so as to avoid an environment
vulnerable to a military apparatus able at will to exert an undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is
another necessary restriction on members of the military. A soldier cannot leave his/her post
without the consent of the commanding officer. The reasons are self-evident. The commanding
officer has to be aware at all times of the location of the troops under command, so as to be able
to appropriately respond to any exigencies. For the same reason, commanding officers have to
be able to restrict the movement or travel of their soldiers, if in their judgment, their presence at
place of call of duty is necessary. At times, this may lead to unsentimental, painful
consequences, such as a soldier being denied permission to witness the birth of his first-born, or
to attend the funeral of a parent. Yet again, military life calls for considerable personal sacrifices
during the period of conscription, wherein the higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the commanding
officer before he/she may leave his destination. A soldier who goes from the properly appointed
place of duty or absents from his/her command, guard, quarters, station, or camp without proper
leave is subject to punishment by court-martial.[48] It is even clear from the record that petitioners
had actually requested for travel authority from the PMA in Baguio City to Manila, to attend the
Senate Hearing.[49] Even petitioners are well aware that it was necessary for them to obtain
permission from their superiors before they could travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles we have
discussed. They seek to be exempted from military justice for having traveled to the Senate to
testify before the Senate Committee against the express orders of Gen. Senga, the AFP Chief of
Staff. If petitioners position is affirmed, a considerable exception would be carved from the
unimpeachable right of military officers to restrict the speech and movement of their juniors. The
ruinous consequences to the chain of command and military discipline simply cannot warrant the
Courts imprimatur on petitioners position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding
military discipline. After all, petitioners seek to impress on us that their acts are justified as they
were responding to an invitation from the Philippine Senate, a component of the legislative
branch of government. At the same time, the order for them not to testify ultimately came from
the President, the head of the executive branch of government and the commander-in-chief of
the armed forces.
Thus, we have to consider the question: may the President prevent a member of the armed
forces from testifying before a legislative inquiry? We hold that the President has constitutional
authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a
military officer who defies such injunction is liable under military justice. At the same time, we
also hold that any chamber of Congress which seeks the appearance before it of a military
officer against the consent of the President has adequate remedies under law to compel such
attendance. Any military official whom Congress summons to testify before it may be compelled
to do so by the President. If the President is not so inclined, the President may be commanded
by judicial order to compel the attendance of the military officer. Final judicial orders have the
force of the law of the land which the President has the duty to faithfully execute. [50]
Explication of these principles is in order.
As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of
prior consent on executive officials summoned by the legislature to attend a congressional
hearing. In doing so, the Court recognized the considerable limitations on executive privilege,
and affirmed that the privilege must be formally invoked on specified grounds. However, the
ability of the President to prevent military officers from testifying before Congress does
not turn on executive privilege, but on the Chief Executives power as commander-in-chief
to control the actions and speech of members of the armed forces. The Presidents
prerogatives as commander-in-chief are not hampered by the same limitations as in
executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek presidential
approval before appearing before Congress is based foremost on the notion that a contrary rule
unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds
significant control over the armed forces in matters such as budget appropriations and the
approval of higher-rank promotions,[51] yet it is on the President that the Constitution vests the
title as commander-in-chief and all the prerogatives and functions appertaining to the position.
Again, the exigencies of military discipline and the chain of command mandate that the
Presidents ability to control the individual members of the armed forces be accorded the utmost
respect. Where a military officer is torn between obeying the President and obeying the Senate,
the Court will without hesitation affirm that the officer has to choose the President. After all, the
Constitution prescribes that it is the President, and not the Senate, who is the commander-in-
chief of the armed forces.[52]
At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the
legislatures functions is the conduct of inquiries in aid of legislation. [53] Inasmuch as it is ill-
advised for Congress to interfere with the Presidents power as commander-in-chief, it is similarly
detrimental for the President to unduly interfere with Congresss right to conduct legislative
inquiries. The impasse did not come to pass in this petition, since petitioners testified anyway
despite the presidential prohibition. Yet the Court is aware that with its pronouncement today
that the President has the right to require prior consent from members of the armed forces, the
clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which
members of the military may be compelled to attend legislative inquiries even if the President
desires otherwise, a modality which does not offend the Chief Executives prerogatives as
commander-in-chief. The remedy lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the
legislative creates a wrinkle to any basic rule that persons summoned to testify before Congress
must do so. There is considerable interplay between the legislative and executive branches,
informed by due deference and respect as to their various constitutional functions. Reciprocal
courtesy idealizes this relationship; hence, it is only as a last resort that one branch seeks to
compel the other to a particular mode of behavior. The judiciary, the third coordinate branch of
government, does not enjoy a similar dynamic with either the legislative or executive branches.
Whatever weakness inheres on judicial power due to its inability to originate national policies
and legislation, such is balanced by the fact that it is the branch empowered by the Constitution
to compel obeisance to its rulings by the other branches of government.
As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon
Committee,[55] among others, the Court has not shirked from reviewing the exercise by Congress
of its power of legislative inquiry.[56] Arnault recognized that the legislative power of inquiry and
the process to enforce it, is an essential and appropriate auxiliary to the legislative
function.[57] On the other hand, Bengzon acknowledged that the power of both houses of
Congress to conduct inquiries in aid of legislation is not absolute or unlimited, and its exercise is
circumscribed by Section 21, Article VI of the Constitution.[58] From these premises, the Court
enjoined the Senate Blue Ribbon Committee from requiring the petitioners in Bengzon from
testifying and producing evidence before the committee, holding that the inquiry in question did
not involve any intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope
and limitations on the constitutional power of congressional inquiry. Thus:
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 inquirites in aid of legislation
is, in theory, no less susceptible to abuse than executive or judicial power. It
may thus be subjected to judicial review pursuant to the Courts certiorari
powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry
itself might not properly be in aid of legislation, and thus beyond the
constitutional power of Congress. Such inquiry could not usurp judicial
functions. Parenthetically, one possible way for Congress to avoid such
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 critical safeguards that proscribe
the legislative power of inquiry. The provision requires that the inquiry be
done in accordance with the Senate or Houses duly published rules of
procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also
mandates that the rights of persons appearing in or affected by such
inquiries be respected, an imposition that obligates Congress to adhere to
the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper
suit filed by the persons affected, even if they belong to the executive
branch. Nonetheless, there may be exceptional circumstances 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[59].
officers appearing before the legislature to testify, the Chief Executive is nonetheless
obliged to comply with the final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the
Presidents order on them and other military officers not to testify before Congress without the
Presidents consent. Yet these issues ultimately detract from the main point that they testified
before the Senate despite an order from their commanding officer and their commander-in-chief
for them not to do so,[61] in contravention of the traditions of military discipline which we

In Senate, the Court ruled that the President could not impose a blanket prohibition barring
executive officials from testifying before Congress without the Presidents consent
notwithstanding the invocation of executive privilege to justify such prohibition. The Court did not affirm today. The issues raised by petitioners could have very well been raised and properly
rule that the power to conduct legislative inquiry ipso facto superseded the claim of executive adjudicated if the proper procedure was observed. Petitioners could have been appropriately
privilege, acknowledging instead that the viability of executive privilege stood on a case to case allowed to testify before the Senate without having to countermand their Commander-in-chief
basis. Should neither branch yield to the other branchs assertion, the constitutional recourse is and superior officer under the setup we have prescribed.
to the courts, as the final arbiter if the dispute. It is only the courts that can compel, with
conclusiveness, attendance or non-attendance in legislative inquiries.

We consider the other issues raised by petitioners unnecessary to the resolution of

Following these principles, it is clear that if the President or the Chief of Staff refuses
to allow a member of the AFP to appear before Congress, the legislative body seeking such
testimony may seek judicial relief to compel the attendance. Such judicial action should be
directed at the heads of the executive branch or the armed forces, the persons who wield
authority and control over the actions of the officers concerned. The legislative purpose of such
testimony, as well as any defenses against the same whether grounded on executive privilege,
national security or similar concerns would be accorded due judicial evaluation. All the
constitutional considerations pertinent to either branch of government may be raised, assessed,
and ultimately weighed against each other. And once the courts speak with finality, both
branches of government have no option but to comply with the decision of the courts, whether
the effect of the decision is to their liking or disfavor.
this petition.
Petitioners may have been of the honest belief that they were defying a direct order of their
Commander-in-Chief and Commanding General in obeisance to a paramount idea formed within
their consciences, which could not be lightly ignored. Still, the Court, in turn, is guided by the
superlative principle that is the Constitution, the embodiment of the national conscience. The
Constitution simply does not permit the infraction which petitioners have allegedly committed,
and moreover, provides for an orderly manner by which the same result could have been
achieved without offending constitutional principles.

WHEREFORE, the petition is DENIED. No pronouncement as to costs.

Courts are empowered, under the constitutional principle of judicial review, to arbitrate
disputes between the legislative and executive branches of government on the proper
constitutional parameters of power.[60] This is the fair and workable solution implicit in the
constitutional allocation of powers among the three branches of government. The judicial filter
SO ORDERED.
helps assure that the particularities of each case would ultimately govern, rather than any
overarching principle unduly inclined towards one branch of government at the expense of the
other. The procedure may not move as expeditiously as some may desire, yet it ensures
thorough deliberation of all relevant and cognizable issues before one branch is compelled to
yield to the other. Moreover, judicial review does not preclude the legislative and executive
branches from negotiating a mutually acceptable solution to the impasse. After all, the two
branches, exercising as they do functions and responsibilities that are political in nature, are free
to smooth over the thorns in their relationship with a salve of their own choosing.

And if emphasis be needed, if the courts so rule, the duty falls on the shoulders
of the President, as commander-in-chief, to authorize the appearance of the military
officers before Congress. Even if the President has earlier disagreed with the notion of

EN BANC
G.R. No. 141284 August 15, 2000
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and
GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a
temporary restraining order seeking to nullify on constitutional grounds the order of President
Joseph Ejercito Estrada commanding the deployment of the Philippine Marines (the "Marines")
to join the Philippine National Police (the "PNP") in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings
and carnappings, the President, in a verbal directive, ordered the PNP and the Marines to
conduct joint visibility patrols for the purpose of crime prevention and suppression. The
Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines (the
"AFP"), the Chief of the PNP and the Secretary of the Interior and Local Government were
tasked to execute and implement the said order. In compliance with the presidential mandate,
the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of
Instruction 02/20001 (the "LOI") which detailed the manner by which the joint visibility patrols,
called Task Force Tulungan, would be conducted.2 Task Force Tulungan was placed under the
leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the Marines
in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the
PNP Chief.3 In the Memorandum, the President expressed his desire to improve the peace and
order situation in Metro Manila through a more effective crime prevention program including
increased police patrols.4 The President further stated that to heighten police visibility in the
metropolis, augmentation from the AFP is necessary.5 Invoking his powers as Commander-in-
Chief under Section 18, Article VII of the Constitution, the President directed the AFP Chief of
Staff and PNP Chief to coordinate with each other for the proper deployment and utilization of
the Marines to assist the PNP in preventing or suppressing criminal or lawless violence. 6 Finally,
the President declared that the services of the Marines in the anti-crime campaign are merely
temporary in nature and for a reasonable period only, until such time when the situation shall
have improved.7
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine
Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression of
crime prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also
by organized syndicates whose members include active and former police/military personnel
whose training, skill, discipline and firepower prove well-above the present capability of the local
police alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct
of police visibility patrol in urban areas will reduce the incidence of crimes specially those
perpetrated by active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility
patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to minimize
or eradicate all forms of high-profile crimes especially those perpetrated by organized crime
syndicates whose members include those that are well-trained, disciplined and well-armed
active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National
Capital Regional Police Office] and the Philippine Marines to curb criminality
in Metro Manila and to preserve the internal security of the state against
insurgents and other serious threat to national security, although the primary
responsibility over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all
forms of high-profile crimes perpetrated by organized crime syndicates
operating in Metro Manila. This concept requires the military and police to
work cohesively and unify efforts to ensure a focused, effective and holistic
approach in addressing crime prevention. Along this line, the role of the
military and police aside from neutralizing crime syndicates is to bring a
wholesome atmosphere wherein delivery of basic services to the people
and development is achieved. Hand-in-hand with this joint NCRPO-
Philippine Marines visibility patrols, local Police Units are responsible for the
maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task
Force "TULUNGAN" shall be organized to provide the mechanism,
structure, and procedures for the integrated planning, coordinating,
monitoring and assessing the security situation.
xxx.8
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City),
Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT
Stations and the NAIA and Domestic Airport.9
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant petition to
annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:
 I Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF
THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS
WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF
SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE
CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY
THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF
THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO
RELY ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF
THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS
UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD
REALLY BE UNDER THE CONSTITUTION.10
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to
uphold the rule of law and the Constitution, the IBP questions the validity of the deployment and
utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution,11 dated 25 January 2000,
required the Solicitor General to file his Comment on the petition. On 8 February 2000, the
Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President in
deploying the Marines, contending, among others, that petitioner has no legal standing; that the
question of deployment of the Marines is not proper for judicial scrutiny since the same involves
a political question; that the organization and conduct of police visibility patrols, which feature the
team-up of one police officer and one Philippine Marine soldier, does not violate the civilian
supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2)
Whether or not the President’s factual determination of the necessity of calling the armed forces
is subject to judicial review; and, (3) Whether or not the calling of the armed forces to assist the
PNP in joint visibility patrols violates the constitutional provisions on civilian supremacy over the
military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to
raise the issues in the petition. Second, the President did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy
clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its power of
judicial review only if the following requisites are complied with, namely: (1) the existence of an
actual and appropriate case; (2) a personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity;
and (4) the constitutional question is the lis mota of the case.12
The IBP has not sufficiently complied with the requisites of standing in this case.
"Legal standing" or locus standi has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the governmental
act that is being challenged.13 The term "interest" means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in the question involved, or a mere
incidental interest.14 The gist of the question of standing is whether a party alleges "such
personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions."15
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold
the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no
other basis in support of its locus standi. The mere invocation by the IBP of its duty to preserve
the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by other groups and the
whole citizenry. Based on the standards above-stated, the IBP has failed to present a specific
and substantial interest in the resolution of the case. Its fundamental purpose which, under
Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of the law profession
and to improve the administration of justice is alien to, and cannot be affected by the deployment
of the Marines. It should also be noted that the interest of the National President of the IBP who
signed the petition, is his alone, absent a formal board resolution authorizing him to file the
present action. To be sure, members of the BAR, those in the judiciary included, have varying
opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the National
President to file the petition, has not shown any specific injury which it has suffered or may suffer
by virtue of the questioned governmental act. Indeed, none of its members, whom the IBP
purportedly represents, has sustained any form of injury as a result of the operation of the joint
visibility patrols. Neither is it alleged that any of its members has been arrested or that their civil
liberties have been violated by the deployment of the Marines. What the IBP projects as injurious
is the supposed "militarization" of law enforcement which might threaten Philippine democratic
institutions and may cause more harm than good in the long run. Not only is the presumed
"injury" not personal in character, it is likewise too vague, highly speculative and uncertain to
satisfy the requirement of standing. Since petitioner has not successfully established a direct
and personal injury as a consequence of the questioned act, it does not possess the personality
to assail the validity of the deployment of the Marines. This Court, however, does not
categorically rule that the IBP has absolutely no standing to raise constitutional issues now or in
the future. The IBP must, by way of allegations and proof, satisfy this Court that it has sufficient
stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal standing when paramount
interest is involved.16 In not a few cases, the Court has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an issue of transcendental significance
to the people.17 Thus, when the issues raised are of paramount importance to the public, the
Court may brush aside technicalities of procedure.18 In this case, a reading of the petition shows
that the IBP has advanced constitutional issues which deserve the attention of this Court in view
of their seriousness, novelty and weight as precedents. Moreover, because peace and order are
under constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated
by the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly
will not go away. It will stare us in the face again. It, therefore, behooves the Court to relax the
rules on standing and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the President of
the necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility
patrols. In this regard, the IBP admits that the deployment of the military personnel falls under
the Commander-in-Chief powers of the President as stated in Section 18, Article VII of the
Constitution, specifically, the power to call out the armed forces to prevent or suppress lawless
violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of
the Marines under the aforestated provision. According to the IBP, no emergency exists that
would justify the need for the calling of the military to assist the police force. It contends that no
lawless violence, invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP
prays that this Court "review the sufficiency of the factual basis for said troop [Marine]
deployment."19
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of
calling the armed forces is not proper for judicial scrutiny since it involves a political question and
the resolution of factual issues which are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and limits,
and the extent of judicial review. But, while this Court gives considerable weight to the parties’
formulation of the issues, the resolution of the controversy may warrant a creative approach that
goes beyond the narrow confines of the issues raised. Thus, while the parties are in agreement
that the power exercised by the President is the power to call out the armed forces, the Court is
of the view that the power involved may be no more than the maintenance of peace and order
and promotion of the general welfare.20 For one, the realities on the ground do not show that
there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the
military is not brought upon the citizenry, a point discussed in the latter part of this decision. In
the words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the President’s powers as protector of the
peace. [Rossiter, The American Presidency]. The power of the President to keep the peace is
not limited merely to exercising the commander-in-chief powers in times of emergency or to
leading the State against external and internal threats to its existence. The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked with attending to the
day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times
when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in
fulfilling presidential duties in times of peace is not in any way diminished by the relative want of
an emergency specified in the commander-in-chief provision. For in making the President
commander-in-chief the enumeration of powers that follow cannot be said to exclude the
President’s exercising as Commander-in-Chief powers short of the calling of the armed forces,
or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep
the peace, and maintain public order and security.
xxx21
Nonetheless, even if it is conceded that the power involved is the President’s power to call out
the armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of
the controversy will reach a similar result.
We now address the Solicitor General’s argument that the issue involved is not susceptible to
review by the judiciary because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate
for court review.22 It pertains to issues which are inherently susceptible of being decided on
grounds recognized by law. Nevertheless, the Court does not automatically assume jurisdiction
over actual constitutional cases brought before it even in instances that are ripe for resolution.
One class of cases wherein the Court hesitates to rule on are "political questions." The reason is
that political questions are concerned with issues dependent upon the wisdom, not the legality,
of a particular act or measure being assailed. Moreover, the political question being a function of
the separation of powers, the courts will not normally interfere with the workings of another co-
equal branch unless the case shows a clear need for the courts to step in to uphold the law and
the Constitution.
As Tañada v. Cuenco23 puts it, political questions refer "to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of
government." Thus, if an issue is clearly identified by the text of the Constitution as matters for
discretionary action by a particular branch of government or to the people themselves then it is
held to be a political question. In the classic formulation of Justice Brennan in Baker v.
Carr,24 "[p]rominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court’s undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarassment from multifarious pronouncements by various departments on the one question."
The 1987 Constitution expands the concept of judicial review by providing that "(T)he Judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by
law. Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government."25 Under this definition, the Court
cannot agree with the Solicitor General that the issue involved is a political question beyond the
jurisdiction of this Court to review. When the grant of power is qualified, conditional or subject to
limitations, the issue of whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or validity, not its
wisdom.26 Moreover, the jurisdiction to delimit constitutional boundaries has been given to this
Court.27 When political questions are involved, the Constitution limits the determination as to
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned. 28
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that
is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reason of passion or hostility.29 Under this definition, a court
is without power to directly decide matters over which full discretionary authority has been
delegated. But while this Court has no power to substitute its judgment for that of Congress or of
the President, it may look into the question of whether such exercise has been made in grave
abuse of discretion.30A showing that plenary power is granted either department of government,
may not be an obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give
rise to justiciable controversy.31
When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is
clear from the intent of the framers and from the text of the Constitution itself. The Court, thus,
cannot be called upon to overrule the President’s wisdom or substitute its own. However, this
does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. In view of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to
show that the President’s decision is totally bereft of factual basis. The present petition fails to
discharge such heavy burden as there is no evidence to support the assertion that there exist no
justification for calling out the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the military. In the
performance of this Court’s duty of "purposeful hesitation"32 before declaring an act of another
branch as unconstitutional, only where such grave abuse of discretion is clearly shown shall the
Court interfere with the President’s judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise
of such power. Section 18, Article VII of the Constitution, which embodies the powers of the
President as Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus, or place the Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for the exercise of the
calling out power is also implied and further reinforced in the rest of Section 18, Article VII which
reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of
the writ of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency
of the factual basis of the proclamation of martial law or the suspension of the privilege of the
writ or the extension thereof, and must promulgate its decision thereon within thirty days from its
filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension and the
Court may review the sufficiency of the factual basis thereof. However, there is no such
equivalent provision dealing with the revocation or review of the President’s action to call out the
armed forces. The distinction places the calling out power in a different category from the power
to declare martial law and the power to suspend the privilege of the writ of habeas corpus,
otherwise, the framers of the Constitution would have simply lumped together the three powers
and provided for their revocation and review without any qualification. Expressio unius est
exclusio alterius. Where the terms are expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters. 33 That the intent of the Constitution
is exactly what its letter says, i.e., that the power to call is fully discretionary to the President, is
extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the
President as Commander-in-Chief. First, he can call out such Armed Forces as may be
necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas
corpus, then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ
of habeas corpus, his judgment is subject to review. We are making it subject to review by the
Supreme Court and subject to concurrence by the National Assembly. But when he exercises
this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion
that his judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be
handled by the first sentence: "The President may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion." So we feel that that is sufficient for handling
imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter
can be handled by the First Sentence: "The President....may call out such Armed Forces to
prevent or suppress lawless violence, invasion or rebellion." So we feel that that is sufficient for
handling imminent danger, of invasion or rebellion, instead of imposing martial law or
suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces of the
Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to
judicial review.34
The reason for the difference in the treatment of the aforementioned powers highlights the intent
to grant the President the widest leeway and broadest discretion in using the power to call out
because it is considered as the lesser and more benign power compared to the power to
suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of
which involve the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to
suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must
concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it.
These conditions are not required in the case of the power to call out the armed forces. The only
criterion is that "whenever it becomes necessary," the President may call the armed forces "to
prevent or suppress lawless violence, invasion or rebellion." The implication is that the President
is given full discretion and wide latitude in the exercise of the power to call as compared to the
two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted without
factual basis, then this Court cannot undertake an independent investigation beyond the
pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and
cannot be objectively established since matters considered for satisfying the same is a
combination of several factors which are not always accessible to the courts. Besides the
absence of textual standards that the court may use to judge necessity, information necessary to
arrive at such judgment might also prove unmanageable for the courts. Certain pertinent
information might be difficult to verify, or wholly unavailable to the courts. In many instances, the
evidence upon which the President might decide that there is a need to call out the armed forces
may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to
gather information, some of which may be classified as highly confidential or affecting the
security of the state. In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of human lives and mass
destruction of property. Indeed, the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a
scenario is not farfetched when we consider the present situation in Mindanao, where the
insurgency problem could spill over the other parts of the country. The determination of the
necessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritable
prescription for disaster, as such power may be unduly straitjacketed by an injunction or a
temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-
Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion.
Unless the petitioner can show that the exercise of such discretion was gravely abused, the
President’s exercise of judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed
forces. In his Memorandum, he categorically asserted that, "[V]iolent crimes like bank/store
robberies, holdups, kidnappings and carnappings continue to occur in Metro Manila..."35 We do
not doubt the veracity of the President’s assessment of the situation, especially in the light of
present developments. The Court takes judicial notice of the recent bombings perpetrated by
lawless elements in the shopping malls, public utilities, and other public places. These are
among the areas of deployment described in the LOI 2000. Considering all these facts, we hold
that the President has sufficient factual basis to call for military aid in law enforcement and in the
exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it
infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of the
Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law
enforcement is "militarized" in violation of Section 3, Article II36 of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of military
assets for civilian law enforcement. The participation of the Marines in the conduct of joint
visibility patrols is appropriately circumscribed. The limited participation of the Marines is evident
in the provisions of the LOI itself, which sufficiently provides the metes and bounds of the
Marines’ authority. It is noteworthy that the local police forces are the ones in charge of the
visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila
Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols.37 Under the
LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. 38 It is
their responsibility to direct and manage the deployment of the Marines.39 It is, likewise, their
duty to provide the necessary equipment to the Marines and render logistical support to these
soldiers.40 In view of the foregoing, it cannot be properly argued that military authority is supreme
over civilian authority. Moreover, the deployment of the Marines to assist the PNP does not
unmake the civilian character of the police force. Neither does it amount to an "insidious
incursion" of the military in the task of law enforcement in violation of Section 5(4), Article XVI of
the Constitution.41
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his
alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these operations, as stated in the
LOI, is lodged with the head of a civilian institution, the PNP, and not with the military. Such
being the case, it does not matter whether the AFP Chief actually participates in the Task
Force Tulungan since he does not exercise any authority or control over the same. Since none
of the Marines was incorporated or enlisted as members of the PNP, there can be no
appointment to civilian position to speak of. Hence, the deployment of the Marines in the joint
visibility patrols does not destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance
required in conducting the patrols. As such, there can be no "insidious incursion" of the military
in civilian affairs nor can there be a violation of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the
assistance of the military in the implementation and execution of certain traditionally "civil"
functions. As correctly pointed out by the Solicitor General, some of the multifarious activities
wherein military aid has been rendered, exemplifying the activities that bring both the civilian and
the military together in a relationship of cooperation, are:
1. Elections;42
2. Administration of the Philippine National Red Cross;43
3. Relief and rescue operations during calamities and disasters;44
4. Amateur sports promotion and development;45
5. Development of the culture and the arts;46
6. Conservation of natural resources;47
7. Implementation of the agrarian reform program;48
8. Enforcement of customs laws;49
9. Composite civilian-military law enforcement activities;50
10. Conduct of licensure examinations;51
11. Conduct of nationwide tests for elementary and high school students; 52
12. Anti-drug enforcement activities;53
13. Sanitary inspections;54
14. Conduct of census work;55
 15. Administration of the Civil Aeronautics Board;56
16. Assistance in installation of weather forecasting devices; 57
17. Peace and order policy formulation in local government units. 58
This unquestionably constitutes a gloss on executive power resulting from a systematic,
unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before
questioned.59 What we have here is mutual support and cooperation between the military and
civilian authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of military
force for domestic purposes has persisted,60 and whose Constitution, unlike ours, does not
expressly provide for the power to call, the use of military personnel by civilian law enforcement
officers is allowed under circumstances similar to those surrounding the present deployment of
the Philippine Marines. Under the Posse Comitatus Act61 of the US, the use of the military in
civilian law enforcement is generally prohibited, except in certain allowable circumstances. A
provision of the Act states:
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or
Act of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or
otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than
two years, or both.62
To determine whether there is a violation of the Posse Comitatus Act in the use of military
personnel, the US courts63 apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded
Knee in such a manner that the military personnel subjected the citizens to the exercise of
military power which was regulatory, proscriptive, or compulsory64 George Washington Law
Review, pp. 404-433 (1986), which discusses the four divergent standards for assessing
acceptable involvement of military personnel in civil law enforcement. See likewise HONORED
IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY
FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or
prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to mean that military
involvement, even when not expressly authorized by the Constitution or a statute, does not
violate the Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on
the part of those claiming relief.1âwphi1 A mere threat of some future injury would be
insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to determine
whether there is permissible use of the military in civilian law enforcement, the conclusion is
inevitable that no violation of the civilian supremacy clause in the Constitution is committed. On
this point, the Court agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A65 does not constitute the exercise of regulatory,
proscriptive, or compulsory military power. First, the soldiers do not control or direct the
operation. This is evident from Nos. 6,66 8(k)67 and 9(a)68of Annex A. These soldiers, second,
also have no power to prohibit or condemn. In No. 9(d)69 of Annex A, all arrested persons are
brought to the nearest police stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown in No. 8(c)70 of Annex A,
are all low impact and defensive in character. The conclusion is that there being no exercise of
regulatory, proscriptive or compulsory military power, the deployment of a handful of Philippine
Marines constitutes no impermissible use of military power for civilian law enforcement. 71
It appears that the present petition is anchored on fear that once the armed forces are deployed,
the military will gain ascendancy, and thus place in peril our cherished liberties. Such
apprehensions, however, are unfounded. The power to call the armed forces is just that - calling
out the armed forces. Unless, petitioner IBP can show, which it has not, that in the deployment
of the Marines, the President has violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not inclined to overrule the President’s
determination of the factual basis for the calling of the Marines to prevent or suppress lawless
violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single
citizen has complained that his political or civil rights have been violated as a result of the
deployment of the Marines. It was precisely to safeguard peace, tranquility and the civil liberties
of the people that the joint visibility patrol was conceived. Freedom and democracy will be in full
bloom only when people feel secure in their homes and in the streets, not when the shadows of
violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.
Footnotes
1
Rollo, pp. 17-21.
2
As of 19 May 2000, the Marines have been recalled from their areas of deployment
to join the military operations in Mindanao, and replaced by Air Force personnel who
took over their functions in the joint visibility patrols. The Air Force personnel, just like
the Marines, were ordered to assist the PNP, also by virtue of LOI 2/2000. Since both
the Marines and Air Force belong to the Armed Forces, the controversy has not been
rendered moot and academic by the replacement of the former by the latter. The
validity of the deployment of the armed forces in the joint visibility patrols thus remain
an issue.
3
Rollo, pp. 75-76.
4
Id., at 75.
5
Id.
6
Id.
7 21
Rollo, p. 75. 177 SCRA 668, 694 (1989).

8
Id., at 17-18. 22
WEST’S LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440
(1986).
9
Id.
23
103 Phil. 1051 (1957).
10
Rollo, p. 7.
24
369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).
11
Id., at 24.
25
Article VIII, Sec. 1 of the 1987 CONSTITUTION.
12
Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994)
26
citing Luz Farms v. Secretary of theDepartment of Agrarian Reform, 192 SCRA 51 Santiago v. Guingona, Jr., 298 SCRA 756 (1998).
(1990); Dumlao v. Commission on Elections, 95 SCRA 392 (1980); and, People v.
Vera, 65 Phil. 56 (1937). 27
Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991).
13
Joya v. Presidential Commission on Good Govenment, 225 SCRA 568, 576 (1993). 28
Marcos v. Manglapus,, supra note 21, see also Daza v. Singson, 180 SCRA 496
(1988); Coseteng v. Mitra, 187 SCRA 377 (1990).
14
Ibid., citing House International Building Tenants Association, Inc. v. Intermediate
Appellate Court, 151 SCRA 703 (1987). 29
Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producers
Bank v. NLRC, 165 SCRA 284 (1988); Litton Mills v. Galleon Trader, Inc., 163 SCRA
15
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962). 494 (1988).

16 30
Joya v. Presidential Commission on Good Government, supra note 13, at Ledesma v. Court of Appeals, 278 SCRA 659 (1997).
579 citing Dumlao v. Commission on Elections, 95 SCRA 392 (1980).
31
Bondoc v. Pineda, 201 SCRA 792 (1991).
17
Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997)
citing Garcia v. ExecutiveSecretary, 211 SCRA 219 (1992); Osmeña v. COMELEC, 32
Drilon v. Lim, 235 SCRA 135 (1994).
199 SCRA 750 (1991); Basco v. Pagcor, 197 SCRA 52 (1991); and,
Araneta v. Dinglasan, 84 Phil. 368 (1949). 33
Sarmiento v. Mison, 156 SCRA 549 (1987).
18
Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission on 34
II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND
Good Government, 225 SCRA 568 (1993); Daza v. Singson, 180 SCRA 496 (1989). DEBATES, pp. 409, 412 (1986).
As formulated by Mr. Justice (now Chief Justice) Hilario G. Davide, Jr. in Kilosbayan,
Inc. vs. Guingona, Jr., [232 SCRA 110 (1994)] "(a) party's standing before this Court is 35
Rollo, p. 75.
a procedural technicality which it may, in the exercise of its discretion, set aside in
view of the importance of the issues raised," favorably citing our ruling in the 36
Section 3, provides:
Emergency Powers Cases [L-2044 (Aranetav. Dinglasan); L-2756
(Araneta v. Angeles); L-3054 (Rodriquez v. Tesorero de Filipinas); and L-3056 Civilian authority, is at all times, supreme over the military. The Armed
(Barredov. COMELEC), 84 Phil. 368 (1940)] where this Court brushed aside this
Forces of the Philippines is the protector of the people and the State. Its
technicality because "the transcendental importance to the public of these cases
goal is to secure the sovereignty of the State and the integrity of the national
demands that they be settled promptly and definitely, brushing aside, if we must, territory.
technical rules of procedure." An inflexible rule on locus standi would result in what
Mr. Justice Florentino P. Feliciano aptly described as a "doctrinal ball and chain xxx 37
No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:
clamped on our own limbs." [Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995)].

19 a. RD, NCRPO is designated as Task Force Commander "TULUNGAN".

Rollo, p. 12
38
20 No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-
Article II, Sections 4 and 5 of the Constitution provide:
PHILIPPINE MARINES:
Sec. 4. The prime duty of the Government is to serve and protect the
b. Before their deployment/employment, receiving units shall properly
people. The Government may call upon the people to defend the State and,
brief/orient the troops on police patrol/visibility procedures.
in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal, military or civil service. 39
No. 8 of the LOI provides: TASKS:
Sec. 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the k. POLICE DISTRICTS/STATIONS
enjoyment by all the people of the blessings of democracy.
 -Provide direction and manage the deployment of all Philippine Marines
personnel deployed in your AOR for police visibility operations.
-Conduct briefing/orientation to Philippine Marines’ personnel on the do’s
and don’ts of police visibility patrols.
-Provide transportation to Philippine Marines from districts headquarters to
different stations and PCPs.
-Perform other tasks as directed.
Forces of the Philippines and the Three (3) AFP Components, Namely: Philippine
Army, Philippine Navy and Philippine Air Force, for the Purpose of Ensuring Free,
Orderly, Honest and Peaceful Precinct Mapping, Registration of Voters and the
Holding of the September 13, 1999 Elections in the Autonomous Region in Muslim
Mindanao (ARMM);" Republic Act No. 7166 (1991), Section 33, which is entitled "An
Act Providing for Synchronized National and Local Elections and for Electoral
Reforms, Authorizing Appropriations therefor, and for other Purposes;" Administrative
Code of 1987, Book V, Title I, Subtitle C, Chapter 1, Sections 2 (4) and 3; Batas
Pambansa Blg. 881, Article VI, Sections 52 (b) and 57 (3) (1985), which is also known
as "Omnibus Election Code."

43
40
No. 8 of the LOI states: TASKS: Republic Act No. 95 (1947), Section 5, which is entitled "An Act to Incorporate the
Philippine National Red Cross Section;" Republic Act No. 855 (1953), Section 1, which
c. RLD/R4 is entitled "An Act to Amend Section V of Republic Act Numbered Ninety-Five, entitled
"An Act to Incorporate the Philippine National Red Cross."
-Coordinate with the Directorate for Logistics for the issuance of the 44
following equipments (sic) to be utilize (sic) by the Philippine Marines Republic Act No. 7077 (1991), Article III, Section 7, which is entitled "An Act
personnel: 500 pieces Probaton, 500 whistle (sic), 500 pieces brazzard Providing for the Development, Administration, Organization, Training, Maintenance
blazoned. and Utilization of the Citizen Armed Forces of the Armed Forces of the Philippines and
for other Purposes."
-Coordinate with the Directorate for Logistics for the issuance of the 45
following for use of PNP personnel involved in the visibility patrol operations: Republic Act No. 6847 (1990), Section 7, which is entitled "An Act Creating and
Establishing The Philippine Sports Commission, Defining its Powers, Functions and
Responsibilities, Appropriating Funds therefor, and for other Purposes."
1,000 sets of PNP GOA Uniform
46
Republic Act No. 8492 (1998), Section 20, which is entitled "An Act Establishing a
500 each raincoats
National Museum System, Providing for its Permanent Home and for other Purposes."
500 each Probaton 47
Republic Act No. 8550 (1998), Section 124, which is entitled "An Act Providing for
the Development, Management and Conservation of the Fisheries and Aquatic
500 each Whistle
Resources, Integrating All Laws Pertinent Thereto, and for other Purposes;"
Memorandum Circular No. 150 (1996), which is entitled "Amending Memorandum
500 each handcuffs Circular No. 128, dated July 20, 1995 by Reorganizing the Presidential Task Force on
Tubbataha Reef National Marine Park;" Executive Order No. 544 (1979), Letter I,
500 each Combat Boots which is entitled "Creating a Presidential Committee for the Conservation of the
Tamaraw, Defining its Powers and for other Purposes."
500 each low cut shoes
48
Executive Order No. 129-A (1987) Section 5 (m), which is entitled "Modifying
-Provide transportation to the Philippine Marines personnel in coordination Executive Order No. 129 Reorganizing and Strengthening the Department of Agrarian
with LSS, NHQ PNP. Reform and for other Purposes."

-Provide additional gas allocation to Philippine Marines’ members of the 49

Inspection Teams.
- Perform other tasks as directed.40
41
Sec. 5(4), Article XVI, provides:
No member of the Armed Forces in the active service shall, at any time, be
appointed in the government including government-owned and controlled
corporations or any of their subsidiaries.
42
CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999),
which is entitled "In Re Guidelines for the Designation of Registration Centers and the
Accountable Officers for the Polaroid Instant Cameras for Purposes of the Registration
of Voters on 8-9 May 1999 in the Autonomous Region in Muslim Mindanao;" Comelec
Resolution No. 3059 (1999), which is entitled, "In the Matter of Deputizing the Armed
Republic Act No. 1937 (1957), Section 2003, which is entitled "An Act to Revised
and Codify the Tariff and Customs Laws of the Philippines;" Executive Order No. 45
(1998), which is entitled "Creating a Presidential Anti-Smuggling Task Force to
Investigate and Prosecute Crimes Involving Large-Scale Smuggling and other Frauds
upon Customs and Providing Measures to Expedite Seizure Proceedings;"
50
These cases involved joint military and civilian law enforcement operations: People
v. Escalante, G.R No. 106633, December 1, 1994; People v. Bernardo, G.R. No.
97393, March 17, 1993; People v. De la Cruz, G.R. No. 83260, April 18,
1990; Guanzon v. de Villa, 181 SCRA 623, 631 (1990). (This case recognizes the
complementary roles of the PNP and the military in conducting anti-crime campaigns,
provided that the people’s rights are not violated in these words: "If the military and the
police must conduct concerted campaigns to flush out and catch criminal elements,
such drives must be consistent with the constitutional and statutory rights of all people
affected by such actions." The creation of the Task Force also finds support
in Valmonte v. de Villa, 185 SCRA 665 (1990). Executive Order No. 62 (1999), which
is entitled "Creating the Philippine Center on Transnational Crime to Formulate and
 61
Implement a Concerted Program of Action of All Law Enforcement, Intelligence and 18 U.S.C.A § 1385 (1878).
other Agencies for the Prevention and Control of Transnational Crime;" Executive
Order No. 8 (1998), which is entitled "Creating a Presidential Anti-Organized Crime 62
Ibid.
Commission and a Presidential Anti-Organized Crime Task Force, to Investigate and
Prosecute Criminal Elements in the Country;" Executive Order No. 280 (1995), which 63
Bissonette v. Haig, supra note 60, at 1390.
is entitled "Creating a Presidential Task Force of Intelligence and Counter-Intelligence
to Identify, Arrest and Cause the Investigation and Prosecution of Military and other 64
A power regulatory in nature is one which controls or directs. It is proscriptive if it
Law Enforcement Personnel on their Former Members and Their Cohorts Involved in prohibits or condemns and compulsory if it exerts some coercive force. See US v.
Criminal Activities." Yunis, 681 F.Supp. 891 (D.D.C., 1988). See also FOURTH AMENDMENT AND
POSSE COMITATUS ACT RESTRICTIONS ON MILITARY INVOLVEMENT IN CIVIL
51
Memorandum Circular No. 141 (1996), which is entitled "Enjoining Government LAW ENFORCEMENT,
Agencies Concerned to Extend Optimum Support and Assistance to the Professional
Regulation Commission in its Conduct of Licensure Examinations." 65
L.O.I. 02/2000, "TULUNGAN," Rollo, pp. 17-22.
52
Memorandum Circular No. 32 (1999), which is entitled "Directing the Government 66
No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-
Agencies Concerned to Extend Maximum Support and Assistance to the National PHILIPPINE MARINES:
Educational Testing and Research Center (NETRC) of the Department of Education,
Culture and Sports (DECS) in the Conduct of Tests of National Coverage." a. The PNP NCPRO thru Police Districts will continue to deploy uniformed
53
PNP personnel dedicated for police visibility patrols in tandem with the
Executive Order No. 61 (1999), which is entitled "Creating the National Drug Law Philippine Marines.
Enforcement and Prevention Coordinating Center to Orchestrate Efforts of national
Government Agencies, Local Government Units, and Non-Government Organizations b. Before their deployment/employment, receiving units shall properly
for a More Effective Anti-Drug Campaign." brief/orient the troops on police patrol/visibility procedures.66
54
Republic Act No. 4089 (1964), which is entitled "An Act Making the City Health 67
Supra note 34.
Officer of Bacolod City the Local Civil Registrar, Amending for the Purpose Section
Forty-Three of the Charter of said City;" Republic Act No. 537 (1950), which is entitled 68
Supra note 32.
"An Act to Revise the Charter of Quezon City;" Commonwealth Act No. 592 (1940),
which is entitled "An Act to Create the City of Dansalan;" Commonwealth Act No. 509 69
No. 9 of the LOI states:
(1939), which is entitled "An Act to Create Quezon City;" Commonwealth Act No. 326
(1938), which is entitled "An Act Creating the City of Bacolod;" Commonwealth Act No.
39 (1936), which is entitled "An Act Creating the City of Zamboanga;" Commonwealth d. In case of apprehensions, arrested person/s shall be brought to the
Act No. 51 (1936), which is entitled "An Act Creating the City of Davao." nearest police stations/PCPs.

70
55
Republic Act No. 36 (1946), which is entitled "Census Act of Nineteen Hundred and Supra note 35.
Forty-Six." 71
Rollo, p. 70.
56
Republic Act No. 776 (1952), Section 5, which is entitled "An Act to Reorganize the
Civil Aeronautics Board and the Civil Aeronautics Administration, To Provide for the
Regulation of Civil Aeronautics in the Philippines and Authorizing the Appropriation of The Lawphil Project - Arellano Law Foundation
Funds Therefor."

57
Republic Act No. 6613 (1972), Section 4, which is entitled "An Act Declaring a Policy
of the State to Adopt Modern Scientific Methods to Moderate Typhoons and Prevent
Destruction by Floods, Rains and Droughts, Creating a Council on Typhoons and
Prevent Destruction by Flood, Rains and Droughts, Creating a Council on Typhoon
Moderation and Flood Control Research and Development, Providing for its Powers SEPARATE OPINION
and Functions and Appropriating Funds Therefor."
PUNO, J.:
58
Local Government Code of 1991, Book I, Title Seven, Section 116.
If the case at bar is significant, it is because of the government attempt to foist the political
59
This theory on gloss of executive power was advanced by Justice Frankfurter in his question doctrine to shield an executive act done in the exercise of the commander-in-chief
concurring opinion in Youngstown Sheet and Tube v. Sawyer, 343 US 579, 610-611 powers from judicial scrutiny. If the attempt succeeded, it would have diminished the power
(1952). of judicial review and weakened the checking authority of this Court over the Chief
Executive when he exercises his commander-in-chief powers. The attempt should remind
60
Bissonette v. Haig, 766 F.2d 1384, 1389 (1985). us of the tragedy that befell the country when this Court sought refuge in the political
question doctrine and forfeited its most important role as protector of the civil and
political rights of our people. The ongoing conflict in Mindanao may worsen and can
force the Chief Executive to resort to the use of his greater commander-in-chief powers,
hence, this Court should be extra cautious in assaying similar attempts. A laid back
posture may not sit well with our people considering that the 1987 Constitution
strengthened the checking powers of this Court and expanded its jurisdiction precisely to
stop any act constituting "xxx grave abuse of jurisdiction xxx on the part of any branch
or instrumentality of the Government."1
The importance of the issue at bar includes this humble separate opinion. We can best perceive
the different intersecting dimensions of the political question doctrine by viewing them from the
broader canvass of history. Political questions are defined as "those questions which under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of
government."2 They have two aspects: (1) those matters that are to be exercised by the people
in their primary political capacity and (2) matters which have been specifically delegated to some
other department or particular office of the government, with discretionary power to act. 3 The
exercise of the discretionary power of the legislative or executive branch of government was
often the area where the Court had to wrestle with the political question doctrine. 4
A brief review of some of our case law will thus give us a sharper perspective of the political
question doctrine. This question confronted the Court as early as 1905 in the case of Barcelon
v. Baker.5 The Governor-General of the Philippine Islands, pursuant to a resolution of the
Philippine Commission, suspended the privilege of the writ of habeas corpus in Cavite and
Batangas based on a finding of open insurrection in said provinces. Felix Barcelon, who was
detained by constabulary officers in Batangas, filed a petition for the issuance of a writ of habeas
corpus alleging that there was no open insurrection in Batangas. The issue to resolve was
whether or not the judicial department may investigate the facts upon which the legislative (the
Philippine Commission) and executive (the Governor-General) branches of government acted in
suspending the privilege of the writ.
The Court ruled that under our form of government, one department has no authority to inquire
into the acts of another, which acts are performed within the discretion of the other
department.6 Surveying American law and jurisprudence, it held that whenever a statute gives
discretionary power to any person, to be exercised by him upon his own opinion of certain facts,
the statute constitutes him the sole judge of the existence of those facts.7 Since the Philippine
Bill of 1902 empowered the Philippine Commission and the Governor-General to suspend the
privilege of the writ of habeas corpus, this power is exclusively within the discretion of the
legislative and executive branches of government. The exercise of this discretion is
conclusive upon the courts.8
The Court further held that once a determination is made by the executive and legislative
departments that the conditions justifying the assailed acts exists, it will presume that the
conditions continue until the same authority decide that they no longer exist.9 It adopted
the rationale that the executive branch, thru its civil and military branches, are better
situated to obtain information about peace and order from every corner of the nation, in contrast
with the judicial department, with its very limited machinery.10 The seed of the political
question doctrine was thus planted in Philippine soil.
The doctrine barring judicial review because of the political question doctrine was next
applied to the internal affairs of the legislature. The Court refused to interfere in the
legislative exercise of disciplinary power over its own members. In the 1924 case of Alejandrino
v. Quezon,11 Alejandrino, who was appointed Senator by the Governor-General, was declared
by Senate Resolution as guilty of disorderly conduct for assaulting another Senator in the course
of a debate, and was suspended from office for one year. Senator Alejandrino filed a petition for
mandamus and injunction to compel the Senate to reinstate him. The Court held that under the
Jones Law, the power of the Senate to punish its members for disorderly behavior does not
authorize it to suspend an appointive member from the exercise of his office. While the Court
found that the suspension was illegal, it refused to issue the writ of mandamus on the ground
that "the Supreme Court does not possess the power of coercion to make the Philippine Senate
take any particular action. [T]he Philippine Legislature or any branch thereof cannot be directly
controlled in the exercise of their legislative powers by any judicial process." 12
The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v. Avelino,13 three
senators-elect who had been prevented from taking their oaths of office by a Senate resolution
repaired to this Court to compel their colleagues to allow them to occupy their seats contending
that only the Electoral Tribunal had jurisdiction over contests relating to their election, returns
and qualifications. Again, the Court refused to intervene citing Alejandrino and affirmed the
inherent right of the legislature to determine who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight representatives who
were proclaimed elected by Comelec were not allowed by Congress to take part in the voting for
the passage of the Parity amendment to the Constitution. If their votes had been counted, the
affirmative votes in favor of the proposed amendment would have been short of the necessary
three-fourths vote in either House of Congress to pass the amendment. The amendment was
eventually submitted to the people for ratification. The Court declined to intervene and held that
a proposal to amend the Constitution is a highly political function performed by Congress in its
sovereign legislative capacity.15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the legality of his
detention ordered by the Senate for his refusal to answer questions put to him by members of
one of its investigating committees. This Court refused to order his release holding that the
process by which a contumacious witness is dealt with by the legislature is a necessary
concomitant of the legislative process and the legislature's exercise of its discretionary authority
is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line.
Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for serious
disorderly behavior for making a privilege speech imputing "malicious charges" against the
President of the Philippines. Osmena, Jr. invoked the power of review of this Court but the Court
once more did not interfere with Congress' power to discipline its members.
The contours of the political question doctrine have always been tricky. To be sure, the Court did
not always stay its hand whenever the doctrine is invoked. In the 1949 case of Avelino v.
Cuenco,18 Senate President Jose Avelino, who was deposed and replaced, questioned his
successor's title claiming that the latter had been elected without a quorum. The petition was
initially dismissed on the ground that the selection of Senate President was an internal matter
and not subject to judicial review.19 On reconsideration, however, the Court ruled that it could
assume jurisdiction over the controversy in light of subsequent events justifying intervention
among which was the existence of a quorum.20 Though the petition was ultimately dismissed,
the Court declared respondent Cuenco as the legally elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a dispute
involving the formation and composition of the Senate Electoral Tribunal. It rejected the Solicitor
General's claim that the dispute involved a political question. Instead, it declared that the Senate
is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral
Tribunal and the exercise of its power thereon is subject to constitutional limitations which are
mandatory in nature.22 It held that under the Constitution, the membership of the Senate
Electoral Tribunal was designed to insure the exercise of judicial impartiality in the disposition of
election contests affecting members of the lawmaking body.23 The Court then nullified the
election to the Senate Electoral Tribunal made by Senators belonging to the party having the
largest number of votes of two of their party members but purporting to act on behalf of the party
having the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether Congress
had formed the Commission on Appointments in accordance with the Constitution and found that
it did not. It declared that the Commission on Appointments is a creature of the Constitution and
its power does not come from Congress but from the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v.
Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not Congress,
acting as a constituent assembly in proposing amendments to the Constitution violates the
Constitution was held to be a justiciable and not a political issue. In Gonzales, the Court ruled:
"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted thereto as
a political one, declined to pass upon the question whether or not a given number of votes cast
in Congress in favor of a proposed amendment to the Constitution-which was being submitted to
the people for ratification-satisfied the three-fourths vote requirement of the fundamental law.
The force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the
Senate, Avelino v. Cuenco, Tanada v. Cuenco, and Macias v. Commission on Elections. In the
first, we held that the officers and employees of the Senate Electoral Tribunal are under its
supervision and control, not of that of the Senate President, as claimed by the latter; in the
second, this Court proceeded to determine the number of Senators necessary for a quorum in
the Senate; in the third, we nullified the election, by Senators belonging to the party having the
largest number of votes in said chamber, purporting to act on behalf of the party having the
second largest number of votes therein, of two (2) Senators belonging to the first party, as
members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the representative districts for the
House of Representatives upon the ground that the apportionment had not been made as may
be possible according to the number of inhabitants of each province. Thus, we rejected the
theory, advanced in these four cases, that the issues therein raised were political questions the
determination of which is beyond judicial review."27
The Court explained that the power to amend the Constitution or to propose amendments
thereto is not included in the general grant of legislative powers to Congress. As a constituent
assembly, the members of Congress derive their authority from the fundamental law and they do
not have the final say on whether their acts are within or beyond constitutional limits. 28 This
ruling was reiterated in Tolentino which held that acts of a constitutional convention called for
the purpose of proposing amendments to the Constitution are at par with acts of Congress
acting as a constituent assembly.29
In sum, this Court brushed aside the political question doctrine and assumed jurisdiction
whenever it found constitutionally-imposed limits on the exercise of powers conferred
upon the Legislature.30
The Court hewed to the same line as regards the exercise of Executive power. Thus, the
respect accorded executive discretion was observed in Severino v. Governor-General,31 where
it was held that the Governor-General, as head of the executive department, could not be
compelled by mandamus to call a special election in the town of Silay for the purpose of electing
a municipal president. Mandamus and injunction could not lie to enforce or restrain a duty which
is discretionary. It was held that when the Legislature conferred upon the Governor-General
powers and duties, it did so for the reason that he was in a better position to know the needs of
the country than any other member of the executive department, and with full confidence that he
will perform such duties as his best judgment dictates.32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not be
compelled by mandamus to produce certain vouchers showing the various expenditures of the
Independence Commission. Under the principle of separation of powers, it ruled that it was not
intended by the Constitution that one branch of government could encroach upon the field of
duty of the other. Each department has an exclusive field within which it can perform its part
within certain discretionary limits.34 It observed that "the executive and legislative departments of
government are frequently called upon to deal with what are known as political questions, with
which the judicial department of government has no intervention. In all such questions, the
courts uniformly refused to intervene for the purpose of directing or controlling the actions of the
other department; such questions being many times reserved to those departments in the
organic law of the state."35
In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining the Chief
Executive from deporting an obnoxious alien whose continued presence in the Philippines was
found by him to be injurious to the public interest. It noted that sudden and unexpected
conditions may arise, growing out of the presence of untrustworthy aliens, which demand
immediate action. The President's inherent power to deport undesirable aliens is universally
denominated as political, and this power continues to exist for the preservation of the peace and
domestic tranquility of the nation.37
In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of the
President's appointing power. It held that the appointing power is the exclusive prerogative of the
President, upon which no limitations may be imposed by Congress, except those resulting from
the need of securing concurrence of the Commission on Appointments and from the exercise of
the limited legislative power to prescribe qualifications to a given appointive office.
We now come to the exercise by the President of his powers as Commander-in-Chief vis-
a-vis the political question doctrine. In the 1940's, this Court has held that as Commander-in-
Chief of the Armed Forces, the President has the power to determine whether war, in the legal
sense, still continues or has terminated. It ruled that it is within the province of the political
department and not of the judicial department of government to determine when war is at end.39
In 1952, the Court decided the landmark case of Montenegro v. Castaneda.40 President
Quirino suspended the privilege of the writ of habeas corpus for persons detained or to be
detained for crimes of sedition, insurrection or rebellion. The Court, citing Barcelon, declared
that the authority to decide whether the exigency has arisen requiring the suspension of the
privilege belongs to the President and his decision is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang v. Garcia came.42 Lansang
reversed the previous cases and held that the suspension of the privilege of the writ of habeas
corpus was not a political question. According to the Court, the weight of Barcelon was diluted
by two factors: (1) it relied heavily on Martin v. Mott, which involved the U.S. President's power
to call out the militia which is a much broader power than suspension of the privilege of the writ;
and (2) the privilege was suspended by the American Governor-General whose act, as
representative of the sovereign affecting the freedom of its subjects, could not be equated with
that of the President of the Philippines dealing with the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of habeas corpus is
neither absolute nor unqualified because the Constitution sets limits on the exercise of
executive discretion on the matter.These limits are: (1) that the privilege must not be
suspended except only in cases of invasion, insurrection or rebellion or imminent danger thereof;
and (2) when the public safety requires it, in any of which events the same may be suspended
wherever during such period the necessity for the suspension shall exist. The extent of the
power which may be inquired into by courts is defined by these limitations. 43
On the vital issue of how the Court may inquire into the President's exercise of power, it ruled
that the function of the Court is not to supplant but merely to check the Executive; to ascertain
whether the President has gone beyond the constitutional limits of his jurisdiction, not to exercise
the power vested in him or to determine the wisdom of his act. Judicial inquiry is confined to the
question of whether the President did not act arbitrarily.44 Using this yardstick, the Court found
that the President did not.
The emergency period of the 1970's flooded the Court with cases which raised the political
question defense. The issue divided the Court down the middle. Javellana v. Executive
Secretary45 showed that while a majority of the Court held that the issue of whether or not the
1973 Constitution had been ratified in accordance with the 1935 Constitution was justiciable, a
majority also ruled that the decisive issue of whether the 1973 Constitution had come into force
and effect, with or without constitutional ratification, was a political question.46
The validity of the declaration of martial law by then President Marcos was next litigated before
the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration of martial law. On
whether the validity of the imposition of martial law was a political or justiciable question, the
Court was almost evenly divided. One-half embraced the political question position and the other
half subscribed to the justiciable position in Lansang. Those adhering to the political question
doctrine used different methods of approach to it.48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v. Enrile.49 The
petitioners therein were arrested and detained by the Philippine Constabulary by virtue of a
Presidential Commitment Order (PCO). Petitioners sought the issuance of a writ of habeas
corpus. The Court found that the PCO had the function of validating a person's detention for any
of the offenses covered in Proclamation No. 2045 which continued in force the suspension of the
privilege of the writ of habeas corpus. It held that the issuance of the PCO by the President was
not subject to judicial inquiry.50 It went further by declaring that there was a need to re-examine
Lansang with a view to reverting to Barcelon and Montenegro. It observed that in times of war or
national emergency, the President must be given absolute control for the very life of the nation
and government is in great peril. The President, it intoned, is answerable only to his conscience,
the people, and God.51
But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v.
Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must inquire
into every phase and aspect of a person's detention from the moment he was taken into custody
up to the moment the court passes upon the merits of the petition. Only after such a scrutiny can
the court satisfy itself that the due process clause of the Constitution has been met. 53
It is now history that the improper reliance by the Court on the political question doctrine
eroded the people's faith in its capacity to check abuses committed by the then Executive
in the exercise of his commander-in-chief powers, particularly violations against human
rights. The refusal of courts to be pro-active in the exercise of its checking power drove
the people to the streets to resort to extralegal remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission that drafted the
1987 Constitution. The first was the need to grant this Court the express power to review the
exercise of the powers as commander-in-chief by the President and deny it of any discretion
to decline its exercise. The second was the need to compel the Court to be pro-active by
expanding its jurisdiction and, thus, reject its laid back stance against acts constituting grave
abuse of discretion on the part of any branch or instrumentality of government. Then Chief
Justice Roberto Concepcion, a member of the Constitutional Commission, worked for the
insertion of the second paragraph of Section 1, Article VIII in the draft Constitution, 54 which
reads:
"Sec. 1. x x x.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government."
The language of the provision clearly gives the Court the power to strike down acts amounting to
grave abuse of discretion of both the legislative and executive branches of government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of our constitutional
history. The provision states:
"Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the President shall submit a report
in person or in writing to Congress. The Congress, voting jointly, by a vote of at least a majority
of all its Members in regular or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be
determined by Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon
within thirty days from its filing.
x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of the armed
forces of thePhilippines, may call out the armed forces subject to two conditions: (1)
whenever it becomes necessary; and (2) to prevent or suppress lawless violence,
invasion or rebellion. Undeniably, these conditions lay down the sine qua requirement for
the exercise of the power and the objective sought to be attained by the exercise of the
power. They define the constitutional parameters of the calling out power. Whether or not
there is compliance with these parameters is a justiciable issue and is not a political
question.
I am not unaware that in the deliberations of the Constitutional Commission, Commissioner
Bernas opined that the President's exercise of the "calling out power," unlike the suspension of
the privilege of the writ of habeas corpus and the declaration of martial law, is not a justiciable
issue but a political question and therefore not subject to judicial review.
It must be borne in mind, however, that while a member's opinion expressed on the floor of the
Constitutional Convention is valuable, it is not necessarily expressive of the people's
intent.55 The proceedings of the Convention are less conclusive on the proper construction of the
fundamental law than are legislative proceedings of the proper construction of a statute, for in
the latter case it is the intent of the legislature the courts seek, while in the former, courts seek to
arrive at the intent of the people through the discussions and deliberations of their
representatives.56The conventional wisdom is that the Constitution does not derive its force from
the convention which framed it, but from the people who ratified it, the intent to be arrived at is
that of the people.57
It is true that the third paragraph of Section 18, Article VII of the 1987 Constitution
expressly gives the Court the power to review the sufficiency of the factual bases used by
the President in the suspension of the privilege of the writ of habeas corpus and the
declaration of martial law. It does not follow, however, that just because the same
provision did not grant to this Court the power to review the exercise of the calling out
power by the President, ergo, this Court cannot pass upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power merely means
that the Court cannot decline the exercise of its power because of the political question
doctrine as it did in the past. In fine, the express grant simply stresses the mandatory
duty of this Court to check the exercise of the commander-in-chief powers of the
President. It eliminated the discretion of the Court not to wield its power of review thru
the use of the political question doctrine.
It may be conceded that the calling out power may be a "lesser power" compared to the power
to suspend the privilege of the writ of habeas corpus and the power to declare martial law. Even
then, its exercise cannot be left to the absolute discretion of the Chief Executive as Commander-
in-Chief of the armed forces, as its impact on the rights of our people protected by the
Constitution cannot be downgraded. We cannot hold that acts of the commander-in-chief cannot
be reviewed on the ground that they have lesser impact on the civil and political rights of our
people. The exercise of the calling out power may be "benign" in the case at bar but may not be
so in future cases.

The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Concurring Opinion
in Lansang that it would be dangerous and misleading to push the political question doctrine too
far, is apropos. It will not be complementary to the Court if it handcuffs itself to helplessness
when a grievously injured citizen seeks relief from a palpably unwarranted use of presidential or
military power, especially when the question at issue falls in the penumbra between the
"political" and the "justiciable. "58

We should not water down the ruling that deciding whether a matter has been committed by the
Constitution to another branch of government, or whether the action of that branch exceeds
whatever authority has been committed, is a delicate exercise in constitutional interpretation,
and is a responsibility of the Court as ultimate interpreter of the fundamental law.59 When
private justiciable rights are involved in a suit, the Court must not refuse to assume
jurisdiction even though questions of extreme political importance are necessarily
involved.60Every officer under a constitutional government must act according to law and subject
to the controlling power of the people, acting through the courts, as well as through the executive
and legislative. One department is just as representative of the other, and the judiciary is the
department which is charged with the special duty of determining the limitations which the law
places upon all official action.61 This historic role of the Court is the foundation stone of a
government of laws and not of men.62

I join the Decision in its result.

 EN BANC
[G.R. No. 159085. February 3, 2004]
SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG MANGGAGAWA,
represented by REP. RENATO MAGTUBO petitioners, vs. EXECUTIVE
SECRETARY SECRETARY ANGELO REYES, GENERAL NARCISO ABAYA, DIR.
GEN. HERMOGENES EBDANE, respondents.
[G.R. No. 159103. February 3, 2004]
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely, SAMSON S.
ALCANTARA, ED VINCENT S. ALBANO, RENE B. GOROSPE, EDWIN R.
SANDOVAL and RODOLFO D. MAPILE, petitioners, vs. HON. EXECUTIVE
SECRETARY ALBERTO G. ROMULO, HON. SECRETARY OF JUSTICE SIMEON
DATUMANONG, HON. SECRETARY OF NATIONAL DEFENSE ANGELO REYES,
and HON. SECRETARY JOSE LINA, JR., respondents.
[G.R. No. 159185. February 3, 2004]
REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO L. LOBREGAT, REP.
HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B. MITRA, REP. EMMYLOU J.
TALINO-SANTOS, and REP. GEORGILU R. YUMUL-
HERMIDA, petitioners, vs. PRESIDENT GLORIA MACAPAGAL-ARROYO; and
EXECUTIVE SECRETARY ALBERTO G. ROMULO, respondents.
[G.R. No. 159196. February 3, 2004]
AQUILINO Q. PIMENTEL, JR. as a Member of the Senate, petitioner, vs. SECRETARY
ALBERTO ROMULO, AS EXECUTIVE SECRETARY; SECRETARY ANGELO
REYES, AS SECRETARY OF NATIONAL DEFENSE; GENERAL NARCISO
ABAYA, AS CHIEF OF STAFF OF THE ARMED FORCES; SECRETARY JOSE
LINA, et al., respondents.
DECISION
TINGA, J.:
They came in the middle of the night. Armed with high-powered ammunitions and
explosives, some three hundred junior officers and enlisted men of the Armed Forces of the
Philippines (AFP) stormed into the Oakwood Premiere apartments in Makati City in the wee
hours of July 27, 2003. Bewailing the corruption in the AFP, the soldiers demanded, among
other things, the resignation of the President, the Secretary of Defense and the Chief of the
Philippine National Police (PNP).[1]
In the wake of the Oakwood occupation, the President issued later in the day
Proclamation No. 427 and General Order No. 4, both declaring a state of rebellion and calling
out the Armed Forces to suppress the rebellion. Proclamation No. 427 reads in full:
PROCLAMATION NO. 427
DECLARING A STATE OF REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered
firearms and explosives, acting upon the instigation and command and direction of known and
unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared
withdrawal of support for, and took arms against the duly constituted Government, and continue
to rise publicly and show open hostility, for the purpose of removing allegiance to the
Government certain bodies of the Armed Forces of the Philippines and the Philippine National
Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her
powers and prerogatives which constitute the crime of rebellion punishable under Article 134 of
the Revised Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of the Philippines are being
supported, abetted and aided by known and unknown leaders, conspirators and plotters in the
government service and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes
necessary, the President, as the Commander-in-Chief of the Armed Forces of the Philippines,
may call out such Armed Forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me
by law, hereby confirm the existence of an actual and on-going rebellion, compelling me to
declare a state of rebellion.
In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article
VII of the Constitution, calling out the Armed Forces of the Philippines and the Philippine
National Police to immediately carry out the necessary actions and measures to suppress and
quell the rebellion with due regard to constitutional rights.
General Order No. 4 is similarly worded:
GENERAL ORDER NO. 4
DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL
POLICE TO SUPPRESS REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered
firearms and explosives, acting upon the instigation and command and direction of known and
unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared
withdrawal of support for, and took arms against the duly constituted Government, and continue
to rise publicly and show open hostility, for the purpose of removing allegiance to the
Government certain bodies of the Armed Forces of the Philippines and the Philippine National
Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her
powers and prerogatives which constitute the crime of rebellion punishable under Article 134 et
seq. of the Revised Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of the Philippines are being
supported, abetted and aided by known and unknown leaders, conspirators and plotters in the
government service and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes
necessary, the President, as the Commander-in-Chief of all Armed Forces of the Philippines,
may call out such Armed Forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me
by the Constitution as President of the Republic of the Philippines and Commander-in-Chief of
all the armed forces of the Philippines and pursuant to Proclamation No. 427 dated July 27,
2003, do hereby call upon the Armed Forces of the Philippines and the Philippine National
Police to suppress and quell the rebellion.
I hereby direct the Chief of the Armed Forces of the Philippines and the Chief of the Philippine
National Police and the officers and men of the Armed Forces of the Philippines and the
Philippine National Police to immediately carry out the necessary and appropriate actions and
measures to suppress and quell the rebellion with due regard to constitutional rights.
By the evening of July 27, 2003, the Oakwood occupation had ended. After hours-long
negotiations, the soldiers agreed to return to barracks. The President, however, did not
immediately lift the declaration of a state of rebellion and did so only on August 1, 2003, through
Proclamation No. 435:
DECLARING THAT THE STATE OF REBELLION HAS CEASED TO EXIST
WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of rebellion was
declared;
WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was issued on the
basis of Proclamation No. 427 dated July 27, 2003, and pursuant to Article VII, Section 18 of the
Constitution, the Armed Forces of the Philippines and the Philippine National Police were
directed to suppress and quell the rebellion;
WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have
effectively suppressed and quelled the rebellion.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue
of the powers vested in me by law, hereby declare that the state of rebellion has ceased to exist.
In the interim, several petitions were filed before this Court challenging the validity of
Proclamation No. 427 and General Order No. 4.
In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.),[2] party-list
organizations Sanlakas and Partido ng Manggagawa (PM), contend that Section 18, Article VII
of the Constitution does not require the declaration of a state of rebellion to call out the armed
forces.[3] They further submit that, because of the cessation of the Oakwood occupation, there
exists no sufficient factual basis for the proclamation by the President of a state of rebellion for
an indefinite period.[4]
Petitioners in G.R. No. 159103 (SJS Officers/Members v. Hon. Executive Secretary, et al.)
are officers/members of the Social Justice Society (SJS), Filipino citizens, taxpayers, law
professors and bar reviewers.[5] Like Sanlakas and PM, they claim that Section 18, Article VII of
the Constitution does not authorize the declaration of a state of rebellion. [6] They contend that
the declaration is a constitutional anomaly that confuses, confounds and misleads because
[o]verzealous public officers, acting pursuant to such proclamation or general order, are liable to
violate the constitutional right of private citizens. [7] Petitioners also submit that the proclamation
is a circumvention of the report requirement under the same Section 18, Article VII, commanding
the President to submit a report to Congress within 48 hours from the proclamation of martial
law.[8] Finally, they contend that the presidential issuances cannot be construed as an exercise
of emergency powers as Congress has not delegated any such power to the President. [9]
In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo and Executive
Secretary Romulo), petitioners brought suit as citizens and as Members of the House of
Representatives whose rights, powers and functions were allegedly affected by the declaration
of a state of rebellion.[10] Petitioners do not challenge the power of the President to call out the
Armed Forces.[11] They argue, however, that the declaration of a state of rebellion is a
superfluity, and is actually an exercise of emergency powers. [12] Such exercise, it is contended,
amounts to a usurpation of the power of Congress granted by Section 23 (2), Article VI of the
Constitution.[13]
In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator assails the subject
presidential issuances as an unwarranted, illegal and abusive exercise of a martial law power
that has no basis under the Constitution.[14] In the main, petitioner fears that the declaration of a
state of rebellion opens the door to the unconstitutional implementation of warrantless arrests for
the crime of rebellion.[15]
Required to comment, the Solicitor General argues that the petitions have been rendered
moot by the lifting of the declaration.[16] In addition, the Solicitor General questions the standing
of the petitioners to bring suit.[17]
The Court agrees with the Solicitor General that the issuance of Proclamation No. 435,
declaring that the state of rebellion has ceased to exist, has rendered the case moot. As a rule,
courts do not adjudicate moot cases, judicial power being limited to the determination
of actual controversies.[18] Nevertheless, courts will decide a question, otherwise moot, if it is
capable of repetition yet evading review.[19] The case at bar is one such case.
Once before, the President on May 1, 2001 declared a state of rebellion and called upon
the AFP and the PNP to suppress the rebellion through Proclamation No. 38 and General Order
No. 1. On that occasion, an angry and violent mob armed with explosives, firearms, bladed
weapons, clubs, stones and other deadly weapons assaulted and attempted to break into
Malacaang.[20] Petitions were filed before this Court assailing the validity of the Presidents
declaration. Five days after such declaration, however, the President lifted the same. The
mootness of the petitions in Lacson v. Perez and accompanying cases[21] precluded this Court
from addressing the constitutionality of the declaration.
To prevent similar questions from reemerging, we seize this opportunity to finally lay to
rest the validity of the declaration of a state of rebellion in the exercise of the Presidents calling
out power, the mootness of the petitions notwithstanding.
Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have
standing to challenge the subject issuances. In Philippine Constitution Association v.
Enriquez, [22]this Court recognized that:
To the extent the powers of Congress are impaired, so is the power of each member thereof,
since his office confers a right to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In such a
case, any member of Congress can have a resort to the courts.
Petitioner Members of Congress claim that the declaration of a state of rebellion by the
President is tantamount to an exercise of Congress emergency powers, thus impairing the
lawmakers legislative powers. Petitioners also maintain that the declaration is a subterfuge to
avoid congressional scrutiny into the Presidents exercise of martial law powers.
Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal standing or locus
standi to bring suit. Legal standing or locus standi has been defined as a personal and
substantial interest in the case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged. The gist of the question of standing is
whether a party alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court depends
for illumination of difficult constitutional questions.[23]
Petitioners Sanlakas and PM assert that:
2. As a basic principle of the organizations and as an important plank in their programs,
petitioners are committed to assert, defend, protect, uphold, and promote the rights, interests,
and welfare of the people, especially the poor and marginalized classes and sectors of
Philippine society. Petitioners are committed to defend and assert human rights, including
political and civil rights, of the citizens.
3. Members of the petitioner organizations resort to mass actions and mobilizations in the
exercise of their Constitutional rights to peaceably assemble and their freedom of speech and of
expression under Section 4, Article III of the 1987 Constitution, as a vehicle to publicly
ventilate their grievances and legitimate demands and to mobilize public opinion to support the
same.[24] [Emphasis in the original.]
Petitioner party-list organizations claim no better right than the Laban ng Demokratikong
Pilipino, whose standing this Court rejected in Lacson v. Perez:
petitioner has not demonstrated any injury to itself which would justify the resort to the
Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened
by a warrantless arrest.Nor is it alleged that its leaders, members, and supporters are being
threatened with warrantless arrest and detention for the crime of rebellion. Every action must be
brought in the name of the party whose legal rights has been invaded or infringed, or whose
legal right is under imminent threat of invasion or infringement.
At best, the instant petition may be considered as an action for declaratory relief, petitioner
claiming that it[]s right to freedom of expression and freedom of assembly is affected by the
declaration of a state of rebellion and that said proclamation is invalid for being contrary to the
Constitution.
However, to consider the petition as one for declaratory relief affords little comfort to petitioner,
this Court not having jurisdiction in the first instance over such a petition. Section 5 [1], Article
VIII of the Constitution limits the original jurisdiction of the court to cases affecting ambassadors,
other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.[25]
Even assuming that petitioners are peoples organizations, this status would not vest them
with the requisite personality to question the validity of the presidential issuances, as this Court
made clear in Kilosbayan v. Morato: [26]
The Constitution provides that the State shall respect the role of independent peoples
organizations to enable the people to pursue and protect, within the democratic framework, their
legitimate and collective interests and aspirations through peaceful and lawful means, that their
right to effective and reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged. (Art. XIII, 15-16)
These provisions have not changed the traditional rule that only real parties in interest or those
with standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court,
even in cases involving constitutional questions, is limited by the case and controversy
requirement of Art. VIII, 5. This requirement lies at the very heart of the judicial function. It is
what differentiates decisionmaking in the courts from decisionmaking in the political departments
of the government and bars the bringing of suits by just any party.[27]
That petitioner SJS officers/members are taxpayers and citizens does not necessarily
endow them with standing. A taxpayer may bring suit where the act complained of directly
involves the illegal disbursement of public funds derived from taxation. [28] No such illegal
disbursement is alleged.
On the other hand, a citizen will be allowed to raise a constitutional question only when he
can show that he has personally suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action;
and the injury is likely to be redressed by a favorable action.[29] Again, no such injury is alleged in
this case.
Even granting these petitioners have standing on the ground that the issues they raise are
of transcendental importance, the petitions must fail.
It is true that for the purpose of exercising the calling out power the Constitution does not
require the President to make a declaration of a state of rebellion. Section 18, Article VII
provides:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency
of the factual basis for the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of the
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released. [Emphasis supplied.]
The above provision grants the President, as Commander-in-Chief, a sequence of
graduated power[s].[30] From the most to the least benign, these are: the calling out power, the
power to suspend the privilege of the writ of habeas corpus, and the power to declare martial
law. In the exercise of the latter two powers, the Constitution requires the concurrence of two
conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of
such power.[31] However, as we observed in Integrated Bar of the Philippines v.
Zamora,[32][t]hese conditions are not required in the exercise of the calling out power. The only
criterion is that whenever it becomes necessary, the President may call the armed forces to
prevent or suppress lawless violence, invasion or rebellion.
Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the
President from declaring a state of rebellion. Note that the Constitution vests the President not
only with Commander-in-Chief powers but, first and foremost, with Executive powers.
Section 1, Article VII of the 1987 Philippine Constitution states: The executive power shall
be vested in the President. As if by exposition, Section 17 of the same Article provides: He shall
ensure that the laws be faithfully executed. The provisions trace their history to the Constitution
of the United States.
 The specific provisions of the U.S. Constitution granting the U.S. President executive and
commander-in-chief powers have remained in their original simple form since the Philadelphia
Constitution of 1776, Article II of which states in part:
Section 1. 1. The Executive Power shall be vested in a President of the United States of America
....
....
Section 2. 1. The President shall be Commander in Chief of the Army and Navy of the United
States. . . .
....
Section 3. he shall take care that the laws be faithfully executed. [Article II Executive Power]
Recalling in historical vignettes the use by the U.S. President of the above-quoted
provisions, as juxtaposed against the corresponding action of the U.S. Supreme Court, is
instructive. Clad with the prerogatives of the office and endowed with sovereign powers, which
are drawn chiefly from the Executive Power and Commander-in-Chief provisions, as well as the
presidential oath of office, the President serves as Chief of State or Chief of Government,
Commander-in-Chief, Chief of Foreign Relations and Chief of Public Opinion.[33]
First to find definitive new piers for the authority of the Chief of State, as the protector of
the people, was President Andrew Jackson. Coming to office by virtue of a political revolution,
Jackson, as President not only kept faith with the people by driving the patricians from
power. Old Hickory, as he was fondly called, was the first President to champion the
indissolubility of the Union by defeating South Carolinas nullification effort. [34]
The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not pacify the
hotspurs from South Carolina. Its State Legislature ordered an election for a convention, whose
members quickly passed an Ordinance of Nullification. The Ordinance declared the Tariff Acts
unconstitutional, prohibited South Carolina citizens from obeying them after a certain date in
1833, and threatened secession if the Federal Government sought to oppose the tariff laws. The
Legislature then implemented the Ordinance with bristling punitive laws aimed at any who
sought to pay or collect customs duties.[35]
Jackson bided his time. His task of enforcement would not be easy. Technically, the
President might send troops into a State only if the Governor called for help to suppress an
insurrection, which would not occur in the instance. The President could also send troops to see
to it that the laws enacted by Congress were faithfully executed. But these laws were aimed at
individual citizens, and provided no enforcement machinery against violation by a State. Jackson
prepared to ask Congress for a force bill.[36]
In a letter to a friend, the President gave the essence of his position. He wrote: . . . when a
faction in a State attempts to nullify a constitutional law of Congress, or to destroy the Union, the
balance of the people composing this Union have a perfect right to coerce them to
obedience. Then in a Proclamation he issued on December 10, 1832, he called upon South
Carolinians to realize that there could be no peaceable interference with the execution of the
laws, and dared them, disunion by armed force is treason. Are you ready to incur its guilt? [37]
The Proclamation frightened nullifiers, non-nullifiers and tight-rope walkers. Soon, State
Legislatures began to adopt resolutions of agreement, and the President announced that the
national voice from Maine on the north to Louisiana on the south had declared nullification and
accession confined to contempt and infamy.[38]
No other President entered office faced with problems so formidable, and enfeebled by
personal and political handicaps so daunting, as Abraham Lincoln.
Lincoln believed the Presidents power broad and that of Congress explicit and restricted,
and sought some source of executive power not failed by misuse or wrecked by sabotage. He
seized upon the Presidents designation by the Constitution as Commander-in-Chief, coupled it
to the executive power provision and joined them as the war power which authorized him to do
many things beyond the competence of Congress.[39]
Lincoln embraced the Jackson concept of the Presidents independent power and duty
under his oath directly to represent and protect the people. In his Message of July 4, 1861,
Lincoln declared that the Executive found the duty of employing the war power in defense of the
government forced upon him. He could not but perform the duty or surrender the existence of
the Government . . . . This concept began as a transition device, to be validated by Congress
when it assembled. In less than two-years, it grew into an independent power under which he
felt authorized to suspend the privilege of the writ of habeas corpus, issue the Emancipation
Proclamation, and restore reoccupied States.[40]
Lincolns Proclamation of April 15, 1861, called for 75,000 troops. Their first service,
according to the proclamation, would be to recapture forts, places and property, taking care to
avoid any devastation, any destruction of or interference with property, or any disturbance of
peaceful citizens.[41]
Early in 1863, the U.S. Supreme Court approved President Lincolns report to use the war
powers without the benefit of Congress. The decision was handed in the celebrated Prize
Cases[42] which involved suits attacking the Presidents right to legally institute a
blockade. Although his Proclamation was subsequently validated by Congress, the claimants
contended that under international law, a blockade could be instituted only as a measure of war
under the sovereign power of the State. Since under the Constitution only Congress is
exclusively empowered to declare war, it is only that body that could impose a blockade and all
prizes seized before the legislative declaration were illegal. By a 5 to 4 vote, the Supreme Court
upheld Lincolns right to act as he had.[43]
In the course of time, the U.S. Presidents power to call out armed forces and suspend the
privilege of the writ of habeas corpus without prior legislative approval, in case of invasion,
insurrection, or rebellion came to be recognized and accepted. The United States introduced the
expanded presidential powers in the Philippines through the Philippine Bill of 1902. [44] The use of
the power was put to judicial test and this Court held that the case raised a political question and
said that it is beyond its province to inquire into the exercise of the power. [45] Later, the grant of
the power was incorporated in the 1935 Constitution.[46]
Elected in 1884, Grover Cleveland took his ascent to the presidency to mean that it made
him the trustee of all the people. Guided by the maxim that Public office is a public trust, which
he practiced during his incumbency, Cleveland sent federal troops to Illinois to quell striking
railway workers who defied a court injunction. The injunction banned all picketing and
distribution of handbills. For leading the strikes and violating the injunction, Debs, who was the
union president, was convicted of contempt of court. Brought to the Supreme Court, the principal
issue was by what authority of the Constitution or statute had the President to send troops
without the request of the Governor of the State.[47]
In In Re: Eugene Debs, et al,[48] the Supreme Court upheld the contempt conviction. It
ruled that it is not the governments province to mix in merely individual present controversies.
Still, so it went on, whenever wrongs complained of are such as affect the public at large, and
are in respect of matters which by the Constitution are entrusted to the care of the Nation and
concerning which the Nation owes the duty to all citizens of securing to them their common
rights, then the mere fact that the Government has no pecuniary interest in the controversy is not
sufficient to exclude it from the Courts, or prevent it from taking measures therein to fully
discharge those constitutional duties.[49] Thus, Clevelands course had the Courts attest.
 Taking off from President Cleveland, President Theodore Roosevelt launched what
political scientists dub the stewardship theory. Calling himself the steward of the people, he felt
that the executive power was limited only by the specific restrictions and prohibitions appearing
in the Constitution, or impleaded by Congress under its constitutional powers.[50]
The most far-reaching extension of presidential power T.R. ever undertook to employ was
his plan to occupy and operate Pennsylvanias coal mines under his authority as Commander-in-
Chief. In the issue, he found means other than force to end the 1902 hard-coal strike, but he had
made detailed plans to use his power as Commander-in-Chief to wrest the mines from the
stubborn operators, so that coal production would begin again.[51]
Eventually, the power of the State to intervene in and even take over the operation of vital
utilities in the public interest was accepted. In the Philippines, this led to the incorporation of
Section 6,[52] Article XIII of the 1935 Constitution, which was later carried over with modifications
in Section 7,[53] Article XIV of the 1973 Constitution, and thereafter in Section 18,[54] Article XII of
the 1987 Constitution.
The lesson to be learned from the U.S. constitutional history is that the Commander-in-
Chief powers are broad enough as it is and become more so when taken together with the
provision on executive power and the presidential oath of office. Thus, the plenitude of the
powers of the presidency equips the occupant with the means to address exigencies or threats
which undermine the very existence of government or the integrity of the State.
In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene R.
Cortes, proposed that the Philippine President was vested with residual power and that this is
even greater than that of the U.S. President. She attributed this distinction to the unitary and
highly centralized nature of the Philippine government. She noted that, There is no counterpart
of the several states of the American union which have reserved powers under the United States
constitution. Elaborating on the constitutional basis for her argument, she wrote:
. The [1935] Philippine [C]onstitution establishes the three departments of the government in this
manner: The legislative power shall be vested in a Congress of the Philippines which shall
consist of a Senate and a House of Representatives. The executive power shall be vested in a
President of the Philippines. The judicial powers shall be vested in one Supreme Court and in
such inferior courts as may be provided by law. These provisions not only establish a separation
of powers by actual division but also confer plenary legislative, executive, and judicial
powers. For as the Supreme Court of the Philippines pointed out in Ocampo v. Cabangis, a
grant of legislative power means a grant of all the legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the government. If
this is true of the legislative power which is exercised by two chambers with a combined
membership [at that time] of more than 120 and of the judicial power which is vested in a
hierarchy of courts, it can equally if not more appropriately apply to the executive power which is
vested in one official the president. He personifies the executive branch. There is a unity in the
executive branch absent from the two other branches of government. The president is not the
chief of many executives. He is the executive. His direction of the executive branch can be more
immediate and direct than the United States president because he is given by express provision
of the constitution control over all executive departments, bureaus and offices.[55]
The esteemed Justice conducted her study against the backdrop of the 1935 Constitution,
the framers of which, early on, arrived at a general opinion in favor of a strong Executive in the
Philippines.[56] Since then, reeling from the aftermath of martial law, our most recent Charter has
restricted the Presidents powers as Commander-in-Chief. The same, however, cannot be said of
the Presidents powers as Chief Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the Presidents power to forbid the
return of her exiled predecessor. The rationale for the majoritys ruling rested on the Presidents
unstated residual powers which are implied from the grant of executive power and which are
necessary for her to comply with her duties under the Constitution. The powers of the President
are not limited to what are expressly enumerated in the article on the Executive Department and
in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the President as a
reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.[57] [Underscoring supplied. Italics in the
original.]
Thus, the Presidents authority to declare a state of rebellion springs in the main from her
powers as chief executive and, at the same time, draws strength from her Commander-in-Chief
powers. Indeed, as the Solicitor General accurately points out, statutory authority for such a
declaration may be found in Section 4, Chapter 2 (Ordinance Power), Book III (Office of the
President) of the Revised Administrative Code of 1987, which states:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the
force of an executive order. [Emphasis supplied.]
The foregoing discussion notwithstanding, in calling out the armed forces, a declaration of
a state of rebellion is an utter superfluity.[58] At most, it only gives notice to the nation that such a
state exists and that the armed forces may be called to prevent or suppress it. [59] Perhaps the
declaration may wreak emotional effects upon the perceived enemies of the State, even on the
entire nation. But this Courts mandate is to probe only into the legal consequences of the
declaration. This Court finds that such a declaration is devoid of any legal significance. For all
legal intents, the declaration is deemed not written.
Should there be any confusion generated by the issuance of Proclamation No. 427 and
General Order No. 4, we clarify that, as the dissenters in Lacson correctly pointed out, the mere
declaration of a state of rebellion cannot diminish or violate constitutionally protected
rights.[60] Indeed, if a state of martial law does not suspend the operation of the Constitution or
automatically suspend the privilege of the writ of habeas corpus,[61] then it is with more reason
that a simple declaration of a state of rebellion could not bring about these conditions. [62] At any
rate, the presidential issuances themselves call for the suppression of the rebellion with due
regard to constitutional rights.
For the same reasons, apprehensions that the military and police authorities may resort to
warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra, majority of the Court
held that [i]n quelling or suppressing the rebellion, the authorities may only resort to warrantless
arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of
Court,[63] if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus,
not based on the declaration of a state of rebellion.[64] In other words, a person may be subjected
to a warrantless arrest for the crime of rebellion whether or not the President has declared a
state of rebellion, so long as the requisites for a valid warrantless arrest are present.
It is not disputed that the President has full discretionary power to call out the armed
forces and to determine the necessity for the exercise of such power. While the Court may
examine whether the power was exercised within constitutional limits or in a manner constituting
grave abuse of discretion, none of the petitioners here have, by way of proof, supported their
assertion that the President acted without factual basis.[65]
The argument that the declaration of a state of rebellion amounts to a declaration of
martial law and, therefore, is a circumvention of the report requirement, is a leap of logic. There
is no indication that military tribunals have replaced civil courts in the theater of war or that
military authorities have taken over the functions of civil government. There is no allegation of
curtailment of civil or political rights. There is no indication that the President has exercised
judicial and legislative powers. In short, there is no illustration that the President has attempted
to exercise or has exercised martial law powers.

Nor by any stretch of the imagination can the declaration constitute an indirect exercise of
emergency powers, which exercise depends upon a grant of Congress pursuant to Section 23
(2), Article VI of the Constitution:

Sec. 23. (1) .

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

The petitions do not cite a specific instance where the President has attempted to or has
exercised powers beyond her powers as Chief Executive or as Commander-in-Chief. The
President, in declaring a state of rebellion and in calling out the armed forces, was merely
exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are purely
executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to
the delegated legislative powers contemplated by Section 23 (2), Article VI.

WHEREFORE, the petitions are hereby DISMISSED.

SO ORDERED.
 AND HONORABLE DIRECTOR GENERAL ARTURO May 3, 2006
C. LOMIBAO,

Respondents.

EN BANC x-------------------------------------------------x
G.R. No. 171409
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A.
SANTIAGO, TEODORO A. CASINO, AGAPITO A.
AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV S. HATAMAN, JUAN EDGARDO ANGARA,
PROF. RANDOLF S. DAVID, LORENZO TA�ADA III, G.R. No. 171396 TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL
RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS,
RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. RENATO B. MAGTUBO, JUSTIN MARC SB.
MALLARI, ROMEL REGALADO BAGARES, CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-
CHRISTOPHER F.C. BOLASTIG, Present: CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
VIRADOR, RAFAEL V. MARIANO, GILBERT C.
Petitioners, REMULLA, FLORENCIO G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI JAVIER
PANGANIBAN, C.J.,
COLMENARES, MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES REPRESENTED
- versus - *
PUNO, BY AMADO GAT INCIONG,
QUISUMBING, Petitioners,
YNARES-SANTIAGO,

GLORIA MACAPAGAL-ARROYO, AS SANDOVAL-GUTIERREZ, - versus -

PRESIDENT AND COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO ERMITA, CARPIO,
HON. AVELINO CRUZ II, SECRETARY OF
NATIONAL DEFENSE, GENERAL GENEROSO AUSTRIA-MARTINEZ,
SENGA, CHIEF OF STAFF, ARMED FORCES OF G.R. No. 171485
THE PHILIPPINES, DIRECTOR GENERAL ARTURO CORONA,
LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, EDUARDO R. ERMITA, EXECUTIVE SECRETARY,
AVELINO J. CRUZ, JR., SECRETARY, DND
CARPIO MORALES, RONALDO V. PUNO, SECRETARY, DILG,
Respondents.
GENEROSO SENGA, AFP CHIEF OF STAFF,
CALLEJO, SR., ARTURO LOMIBAO, CHIEF PNP,
x-------------------------------------------------x
AZCUNA, Respondents.
NI�EZ CACHO-OLIVARES AND TRIBUNE
PUBLISHING CO., INC., TINGA, x-------------------------------------------------x
Petitioners, CHICO-NAZARIO, KILUSANG MAYO UNO, REPRESENTED BY ITS
CHAIRPERSON ELMER C. LABOG AND
GARCIA, and SECRETARY GENERAL JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS �
VELASCO, JJ. KILUSANG MAYO UNO (NAFLU-KMU),
REPRESENTED BY ITS NATIONAL PRESIDENT,
- versus - JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
Promulgated: MARTIN CUSTODIO, JR., AND ROQUE M. TAN,

Petitioners,

HONORABLE SECRETARY EDUARDO ERMITA

 Petitioners,

- versus -

- versus -

HON. EXECUTIVE SECRETARY EDUARDO

ERMITA, GENERAL GENEROSO SENGA, IN HIS
CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
CAPACITY AS PNP CHIEF,

Respondents.

HER EXCELLENCY, PRESIDENT GLORIA x-------------------------------------------------x

MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, LOREN B. LEGARDA,
THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, GENEROSO SENGA, AND THE PNP Petitioner,
DIRECTOR GENERAL, ARTURO LOMIBAO,

Respondents.

x-------------------------------------------------x
- versus -
ALTERNATIVE LAW GROUPS, INC. (ALG),

Petitioner,

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

JOSE ANSELMO I. CADIZ, FELICIANO M.

BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. G.R. No. 171483
AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C.
ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V.
GARCIA AND INTEGRATED BAR OF THE
PHILIPPINES (IBP),
G.R. No. 171400
 G.R. No. 171424

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

G.R. No. 171489

DECISION

SANDOVAL-GUTIERREZ, J.:

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

Chief Justice Artemio V. Panganiban�s philosophy of liberty is thus most

relevant. He said: �In cases involving liberty, the scales of justice should weigh heavily
against government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak.� Laws and actions that restrict fundamental rights come to the
courts �with a heavy presumption against their constitutional validity.�[2]
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend
that respondent officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom guaranteed and protected
by the Constitution. Hence, such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How
does the Constitution of a free people combine the degree of liberty, without which, law
becomes tyranny, with the degree of law, without which, liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People
Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed Forces of
the Philippines, by virtue of the powers vested upon me by Section 18,
Article 7 of the Philippine Constitution which states that: �The President. . .
whenever it becomes necessary, . . . may call out (the) armed forces to
prevent or suppress. . .rebellion. . .,� and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and
to all decrees, orders and regulations promulgated by me personally
or upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists � the historical enemies of the democratic
Philippine State � who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down the
duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring
down the President;
WHEREAS, the claims of these elements have been
recklessly magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State �
by obstructing governance including hindering the growth of the
economy and sabotaging the people�s confidence in government and
their faith in the future of this country;
WHEREAS, these actions are adversely affecting the
economy;
WHEREAS, these activities give totalitarian forces of both the
extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the State the
primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right, represented by
military adventurists - the historical enemies of the democratic Philippine
State � and who are now in a tactical alliance and engaged in a concerted
and systematic conspiracy, over a broad front, to bring down the duly-
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down
our republican government;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;

WHEREAS, these series of actions is hurting the Philippine State
by obstructing governance, including hindering the growth of the economy
and sabotaging the people�s confidence in the government and their faith
in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the
extreme Left and extreme Right the opening to intensify their avowed aims
to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the
defense and preservation of the democratic institutions and the State the
primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been
issued declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by
virtue of the powers vested in me under the Constitution as President of the
Republic of the Philippines, and Commander-in-Chief of the Republic of the
Philippines, and pursuant to Proclamation No. 1017 dated February 24,
2006, do hereby call upon the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP), to prevent and suppress acts of
terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the
PNP, as well as the officers and men of the AFP and PNP, to immediately
carry out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP 1017. She issued
Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17,
Article XII of the Constitution, Proclamation No. 1017 dated February 24,
2006, was issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated
February 24, 2006, which were issued on the basis of Proclamation No.
1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless
violence as well as any act of rebellion and to undertake such action as
may be necessary;
WHEREAS, the AFP and PNP have effectively prevented,
suppressed and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-
ARROYO, President of the Republic of the Philippines, by virtue of the
powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents
stated that the proximate cause behind the executive issuances was the conspiracy among
some military officers, leftist insurgents of the New People�s Army (NPA), and some members
of the political opposition in a plot to unseat or assassinate President Arroyo. [4] They considered
the aim to oust or assassinate the President and take-over the reigns of government as a clear
and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the
facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no
refutation from petitioners� counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling out the armed
forces. He emphasized that none of the petitioners has shown that PP 1017 was without factual
bases. While he explained that it is not respondents� task to state the facts behind the
questioned Proclamation, however, they are presenting the same, narrated hereunder, for the
elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants
Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group
indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a
public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon
the people to �show and proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by wearing red bands on our left
arms.� [5]
On February 17, 2006, the authorities got hold of a document entitled �Oplan Hackle
I � which detailed plans for bombings and attacks during the Philippine Military Academy
Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including
some cabinet members and President Arroyo herself.[6] Upon the advice of her security,
President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of
the celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing minutes of the
meetings between members of the Magdalo Group and the National People�s Army (NPA), a
tape recorder, audio cassette cartridges, diskettes, and copies of subversive
documents.[7] Prior to his arrest, Lt. San Juan announced through DZRH that the �Magdalo�s
D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.�
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he immediately
ordered SAF Commanding General Marcelino Franco, Jr. to �disavow� any defection. The
latter promptly obeyed and issued a public statement: �All SAF units are under the effective
control of responsible and trustworthy officers with proven integrity and unquestionable loyalty.�
On the same day, at the house of former Congressman Peping Cojuangco, President
Cory Aquino�s brother, businessmen and mid-level government officials plotted moves to bring
down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about his group�s plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Army�s elite Scout Ranger. Lim said �it was all
systems go for the planned movement against Arroyo.�[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge
number of soldiers would join the rallies to provide a critical mass and armed component to the
Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there
was no way they could possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga has remained
faithful to his Commander-in-Chief and to the chain of command. He immediately took custody
of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within
the military and the police establishments in order to forge alliances with its members and key
officials. NPA spokesman Gregorio �Ka Roger� Rosal declared: �The Communist Party and
revolutionary movement and the entire people look forward to the possibility in the coming year
of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer to end it.�[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic Front
(NDF) at North Central Mindanao, publicly announced: �Anti-Arroyo groups within the military
and police are growing rapidly, hastened by the economic difficulties suffered by the families of
AFP officers and enlisted personnel who undertake counter-insurgency operations in the
field.� He claimed that with the forces of the national democratic movement, the anti-Arroyo
conservative political parties, coalitions, plus the groups that have been reinforcing since June
2005, it is probable that the President�s ouster is nearing its concluding stage in the first half of
2006.
Respondents further claimed that the bombing of telecommunication towers and cell
sites in Bulacan and Bataan was also considered as additional factual basis for the issuance of
PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of
three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its
front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in
mass protests.[10]
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account for all their men and ensure that
the chain of command remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President suspended classes in all
levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP
1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs
and activities related to the 20th anniversary celebration of Edsa People Power I; and revoked
the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul
Gonzales stated that political rallies, which to the President�s mind were organized for
purposes of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor
announced that �warrantless arrests and take-over of facilities, including media, can already be
implemented.�[11]
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation
of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro
Manila with the intention of converging at the EDSA shrine. Those who were already near the
EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained
policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and
break up the marching groups, and scatter the massed participants. The same police action was
used against the protesters marching forward to Cubao, Quezon City and to the corner of
Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA
celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for
the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and newspaper
columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper;
while policemen from the Manila Police District were stationed outside the building.[13]
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the
tabloid Abante.
 The raid, according to Presidential Chief of Staff Michael Defensor, is �meant to
show a �strong presence,� to tell media outlets not to connive or do anything that would help
the rebels in bringing down this government.� The PNP warned that it would take over any
media organization that would not follow �standards set by the government during the state of
national emergency.� Director General Lomibao stated that �if they do not follow the
standards � and the standards are - if they would contribute to instability in the government, or
if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 � we will
recommend a �takeover.�� National Telecommunications� Commissioner Ronald Solis
urged television and radio networks to �cooperate� with the government for the duration of the
state of national emergency. He asked for �balanced reporting� from broadcasters when
covering the events surrounding the coup attempt foiled by the government. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set
out for media coverage when the national security is threatened. [14]
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his
farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985. Beltran�s
lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during
the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these
petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told
they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested
and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after
him during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as
Roel and Art, were taken into custody.
Retired Major General Ramon Monta�o, former head of the Philippine Constabulary,
was arrested while with his wife and golfmates at the Orchard Golf and Country Club in
Dasmari�as, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casi�o and Gabriela
Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL
Ticket Office in Davao City. Later, he was turned over to the custody of the House of
Representatives where the �Batasan 5� decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of
national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017
and G.O. No. 5 were filed with this Court against the above-named respondents. Three (3) of
these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds
that (1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the
constitutional requirements for the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,
Inc. challenged the CIDG�s act of raiding the Daily Tribune offices as a clear case of
�censorship� or �prior restraint.� They also claimed that the term �emergency� refers
only to tsunami, typhoon, hurricane and similar occurrences, hence, there is �absolutely no
emergency� that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero,
and twenty one (21) other members of the House of Representatives, including Representatives
Satur Ocampo, Rafael Mariano, Teodoro Casi�o, Liza Maza, and Josel Virador. They
asserted that PP 1017 and G.O. No. 5 constitute �usurpation of legislative powers�;
�violation of freedom of expression� and �a declaration of martial law.� They alleged that
President Arroyo �gravely abused her discretion in calling out the armed forces without clear
and verifiable factual basis of the possibility of lawless violence and a showing that there is
necessity to do so.�
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP
1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the
power to enact laws and decrees; (2) their issuance was without factual basis; and (3) they
violate freedom of expression and the right of the people to peaceably assemble to redress their
grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP
1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article
II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d) Section
17[20] of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is
an �arbitrary and unlawful exercise by the President of her Martial Law powers.� And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that �it
amounts to an exercise by the President of emergency powers without congressional
approval.� In addition, petitioners asserted that PP 1017 �goes beyond the nature and
function of a proclamation as defined under the Revised Administrative Code.�
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017
and G.O. No. 5 are �unconstitutional for being violative of the freedom of expression, including
its cognate rights such as freedom of the press and the right to access to information on matters
of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution.� In this
regard, she stated that these issuances prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.
In respondents� Consolidated Comment, the Solicitor General countered that: first, the
petitions should be dismissed for being moot; second, petitioners in G.R. Nos. 171400
(ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et
al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo
as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not
violate the people�s right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the
above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot
and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.),
and 171424 (Legarda) have legal standing.
 B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of
PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of
judicial review enunciated in Marbury v. Madison.[21] This concept rests on the extraordinary
simple foundation --
The Constitution is the supreme law. It was ordained by the people,
the ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its unconstitutional
attempt, and thus to vindicate and preserve inviolate the will of the
people as expressed in the Constitution. This power the courts
exercise. This is the beginning and the end of the theory of judicial
review.[22]
But the power of judicial review does not repose upon the courts a �self-starting
capacity.�[23] Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to raise a
question of constitutionality; third, the constitutional question must be raised at the earliest
opportunity; and fourth, the decision of the constitutional question must be necessary to the
determination of the case itself.[24]
Respondents maintain that the first and second requisites are absent, hence, we shall
limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is �definite and concrete, touching the legal relations of
parties having adverse legal interest;� a real and substantial controversy admitting of specific
relief.[25] The Solicitor General refutes the existence of such actual case or controversy,
contending that the present petitions were rendered �moot and academic� by President
Arroyo�s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events,[26] so that a declaration thereon would be of no practical use or
value.[27] Generally, courts decline jurisdiction over such case[28] or dismiss it on ground of
mootness.[29]
The Court holds that President Arroyo�s issuance of PP 1021 did not render the
present petitions moot and academic. During the eight (8) days that PP 1017 was operative,
the police officers, according to petitioners, committed illegal acts in implementing it. Are PP
1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal
acts? These are the vital issues that must be resolved in the present petitions. It must be
stressed that �an unconstitutional act is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal contemplation, inoperative.�[30]
The �moot and academic� principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution;[31] second, the exceptional
character of the situation and the paramount public interest is involved; [32] third, when
constitutional issue raised requires formulation of controlling principles to guide the bench, the
bar, and the public;[33] and fourth, the case is capable of repetition yet evading review.[34]
All the foregoing exceptions are present here and justify this Court�s assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O.
No. 5 violates the Constitution. There is no question that the issues being raised affect the
public�s interest, involving as they do the people�s basic rights to freedom of expression, of
assembly and of the press. Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating
the bench and the bar, and in the present petitions, the military and the police, on the extent of
the protection given by constitutional guarantees.[35] And lastly, respondents� contested
actions are capable of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. Panganiban�s Separate Opinion in Sanlakas v. Executive
Secretary.[36] However, they failed to take into account the Chief Justice�s very statement that
an otherwise �moot� case may still be decided �provided the party raising it in a proper case
has been and/or continues to be prejudiced or damaged as a direct result of its
issuance.� The present case falls right within this exception to the mootness rule pointed out
by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as �a right of appearance in a court of justice on a given
question.�[37] In private suits, standing is governed by the �real-parties-in interest� rule as
contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that
�every action must be prosecuted or defended in the name of the real party in
interest.� Accordingly, the �real-party-in interest� is �the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the avails of the
suit.�[38] Succinctly put, the plaintiff�s standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who
asserts a �public right� in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently from
any other person. He could be suing as a �stranger,� or in the category of a �citizen,� or
�taxpayer.� In either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a �citizen� or �taxpayer.
Case law in most jurisdictions now allows both �citizen� and �taxpayer� standing in
public actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was held
that the plaintiff in a taxpayer�s suit is in a different category from the plaintiff in a citizen�s
suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins:[40] �In matter of mere public right,
however�the people are the real parties�It is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued and punished, and
that a public grievance be remedied.� With respect to taxpayer�s suits, Terr v.
Jordan[41] held that �the right of a citizen and a taxpayer to maintain an action in courts to
restrain the unlawful use of public funds to his injury cannot be denied.�
However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United State Supreme Court laid down the more
stringent �direct injury� test in Ex Parte Levitt,[42] later reaffirmed in Tileston v.
Ullman.[43] The same Court ruled that for a private individual to invoke the judicial power to
determine the validity of an executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not sufficient that he has a
general interest common to all members of the public.
This Court adopted the �direct injury� test in our jurisdiction. In People v.
Vera,[44] it held that the person who impugns the validity of a statute must have �a personal
and substantial interest in the case such that he has sustained, or will sustain direct
injury as a result.� The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate,[45] Manila Race Horse Trainers� Association v. De la
Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-Chinese League of the Philippines
v. Felix.[48]
However, being a mere procedural technicality, the requirement of locus standi may
be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency
Powers Cases, Araneta v. Dinglasan,[49] where the �transcendental importance� of the
cases prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon the issues raised due to
the �far-reaching implications� of the petition notwithstanding its categorical statement that
petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this
liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or validity of laws, regulations
and rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners have failed to show
direct injury, they have been allowed to sue under the principle of �transcendental
importance.� Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled
that the enforcement of the constitutional right to information and the
equitable diffusion of natural resources are matters of transcendental
importance which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the
Court held that �given the transcendental importance of the issues
involved, the Court may relax the standing requirements and allow the
suit to prosper despite the lack of direct injury to the parties seeking
judicial review� of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a showing
that �Balikatan 02-01� involves the exercise of Congress� taxing or
spending powers, it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,[55] that in cases of transcendental importance,
the cases must be settled promptly and definitely and standing
requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of
the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court�s attitude
toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a
people�s organization does not give it the requisite personality to question the validity of the on-
line lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it
cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it
sue as a concerned citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the
Court reiterated the �direct injury� test with respect to concerned citizens� cases involving
constitutional issues. It held that �there must be a showing that the citizen personally suffered
some actual or threatened injury arising from the alleged illegal official act.�
 In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury
to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the President�s declaration of a
state of rebellion is a usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice
Society, the Court declared them to be devoid of standing, equating them with the LDP
in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares
and Tribune Publishing Co. Inc. They alleged �direct injury� resulting from �illegal arrest�
and �unlawful search� committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of Congress is
necessary whenever the alarming powers incident to Martial Law are used. Moreover, it is in
the interest of justice that those affected by PP 1017 can be represented by their Congressmen
in bringing to the attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,[61] Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,[62] Basco v. Philippine Amusement and Gaming Corporation,[63] and Ta�ada v.
Tuvera,[64] that when the issue concerns a public right, it is sufficient that the petitioner is a
citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU�s assertion that PP 1017 and G.O. No. 5 violated its right
to peaceful assembly may be deemed sufficient to give it legal standing. Organizations may be
granted standing to assert the rights of their members.[65] We take judicial notice of the
announcement by the Office of the President banning all rallies and canceling all permits for
public assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct
or potential injury which the IBP as an institution or its members may suffer as a consequence of
the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v.
Zamora,[66] the Court held that the mere invocation by the IBP of its duty to preserve the rule of
law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this
case. This is too general an interest which is shared by other groups and the whole
citizenry. However, in view of the transcendental importance of the issue, this Court declares
that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant
petition as there are no allegations of illegal disbursement of public funds. The fact that she is a
former Senator is of no consequence. She can no longer sue as a legislator on the allegation
that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her
claim that she is a media personality will not likewise aid her because there was no showing that
the enforcement of these issuances prevented her from pursuing her occupation. Her
submission that she has pending electoral protest before the Presidential Electoral Tribunal is
likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the proceedings
or result of her case. But considering once more the transcendental importance of the issue
involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the
bigger question of proper exercise of judicial power. This is the underlying legal tenet of the
�liberality doctrine� on legal standing. It cannot be doubted that the validity of PP No. 1017
and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino
people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated
breath the ruling of this Court on this very critical matter. The petitions thus call for the
application of the �transcendental importance� doctrine, a relaxation of the standing
requirements for the petitioners in the �PP 1017 cases.�
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the
doctrine that the President, during his tenure of office or actual incumbency, [67] may not be sued
in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that he be freed from
any form of harassment, hindrance or distraction to enable him to fully attend to the performance
of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes
the executive branch and anything which impairs his usefulness in the discharge of the many
great and important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people[68] but he
may be removed from office only in the mode provided by law and that is by impeachment. [69]
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
�necessary� for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President�s
exercise of his Commander-in-Chief power has reached its distilled point - from the indulgent
days of Barcelon v. Baker[70] and Montenegro v. Castaneda[71] to the volatile era
of Lansang v. Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The tug-
of-war always cuts across the line defining �political questions,� particularly those questions
�in regard to which full discretionary authority has been delegated to the legislative or executive
branch of the government.�[75] Barcelon and Montenegro were in unison in declaring that
the authority to decide whether an exigency has arisen belongs to the President and his
decision is final and conclusive on the courts. Lansang took the opposite view. There, the
members of the Court were unanimous in the conviction that the Court has the authority to
inquire into the existence of factual bases in order to determine their constitutional
sufficiency. From the principle of separation of powers, it shifted the focus to the system
of checks and balances, �under which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the Basic Law,
and the authority to determine whether or not he has so acted is vested in
the Judicial Department, which in this respect, is, in turn, Indeed, judging the seriousness of the incidents, President Arroyo was not expected
constitutionally supreme.�[76] In 1973, the unanimous Court of Lansang was divided to simply fold her arms and do nothing to prevent or suppress what she believed was lawless
in Aquino v. Enrile.[77] There, the Court was almost evenly divided on the issue of violence, invasion or rebellion. However, the exercise of such power or duty must not stifle
whether the validity of the imposition of Martial Law is a political or justiciable liberty.
question.[78] Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that
there is a need to re-examine the latter case, ratiocinating that �in times of war or national
emergency, the President must be given absolute control for the very life of the nation
and the government is in great peril. The President, it intoned, is answerable only to his II. Constitutionality of PP 1017 and G.O. No. 5
conscience, the People, and God.�[79]

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

As to how the Court may inquire into the President�s exercise of John Locke, describing the architecture of civil government, called upon the English
power, Lansang adopted the test that �judicial inquiry can go no further than to satisfy the doctrine of prerogative to cope with the problem of emergency. In times of danger to the nation,
Court not that the President�s decision is correct,� but that �the President did not positive law enacted by the legislature might be inadequate or even a fatal obstacle to the
act arbitrarily.� Thus, the standard laid down is not correctness, but promptness of action necessary to avert catastrophe. In these situations, the Crown retained a
arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled that �it is prerogative �power to act according to discretion for the public good, without the
incumbent upon the petitioner to show that the President�s decision is totally bereft of proscription of the law and sometimes even against it.�[84] But Locke recognized that this
factual basis� and that if he fails, by way of proof, to support his assertion, then �this Court moral restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the
cannot undertake an independent investigation beyond the pleadings.� need for resorting to the prerogative and how may its abuse be avoided? Here, Locke
readily admitted defeat, suggesting that �the people have no other remedy in this, as in all
other cases where they have no judge on earth, but to appeal to Heaven.�[85]

Petitioners failed to show that President Arroyo�s exercise of the calling-out power,
by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor General�s
Consolidated Comment and Memorandum shows a detailed narration of the events leading to
the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the
escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in Jean-Jacques Rousseau also assumed the need for temporary suspension of
the military, particularly in the Philippine Marines, and the reproving statements from the democratic processes of government in time of emergency. According to him:
communist leaders. There was also the Minutes of the Intelligence Report and Security Group of
the Philippine Army showing the growing alliance between the NPA and the military. Petitioners The inflexibility of the laws, which prevents them from adopting
presented nothing to refute such events. Thus, absent any contrary allegations, the Court is themselves to circumstances, may, in certain cases, render them disastrous
convinced that the President was justified in issuing PP 1017 calling for military aid. and make them bring about, at a time of crisis, the ruin of the State�

It is wrong therefore to wish to make political institutions as strong

as to render it impossible to suspend their operation. Even Sparta allowed
its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are
an obstacle to their preservation, the method is to nominate a supreme
lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general will,
and it clear that the people�s first intention is that the State shall not
perish.[86]
Rosseau did not fear the abuse of the emergency dictatorship or �supreme
magistracy� as he termed it. For him, it would more likely be cheapened by �indiscreet
use.� He was unwilling to rely upon an �appeal to heaven.� Instead, he relied upon a
tenure of office of prescribed duration to avoid perpetuation of the dictatorship. [87]
John Stuart Mill concluded his ardent defense of representative government: �I am
far from condemning, in cases of extreme necessity, the assumption of absolute power in
the form of a temporary dictatorship.�[88]
Nicollo Machiavelli�s view of emergency powers, as one element in the whole
scheme of limited government, furnished an ironic contrast to the Lockean theory of
prerogative. He recognized and attempted to bridge this chasm in democratic political
theory, thus:
Now, in a well-ordered society, it should never be necessary to
resort to extra �constitutional measures; for although they may for a time
be beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if
she has not by law provided for everything, having a remedy for every
emergency and fixed rules for applying it.[89]
Machiavelli � in contrast to Locke, Rosseau and Mill � sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with suitable
checks and controls in time of national danger. He attempted forthrightly to meet the problem of
combining a capacious reserve of power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.[90]
Contemporary political theorists, addressing themselves to the problem of response to
emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.[91] Frederick M. Watkins saw �no reason why absolutism should not be used
as a means for the defense of liberal institutions,� provided it �serves to protect
established institutions from the danger of permanent injury in a period of temporary
emergency and is followed by a prompt return to the previous forms of political
life.�[92] He recognized the two (2) key elements of the problem of emergency governance, as
well as all constitutional governance: increasing administrative powers of the executive,
while at the same time �imposing limitation upon that power.�[93] Watkins placed his real
faith in a scheme of constitutional dictatorship. These are the conditions of success of such a
dictatorship: �The period of dictatorship must be relatively short�Dictatorship should
always be strictly legitimate in character�Final authority to determine the need for
dictatorship in any given case must never rest with the dictator himself��[94] and the
objective of such an emergency dictatorship should be �strict political conservatism.�
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. [95] �It is a
problem of concentrating power � in a government where power has consciously been divided
� to cope with� situations of unprecedented magnitude and gravity. There must be a broad
grant of powers, subject to equally strong limitations as to who shall exercise such powers,
when, for how long, and to what end.�[96] Friedrich, too, offered criteria for judging the
adequacy of any of scheme of emergency powers, to wit: �The emergency executive must
be appointed by constitutional means � i.e., he must be legitimate; he should not enjoy
power to determine the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of emergency action must
be the defense of the constitutional order.�[97]
Clinton L. Rossiter, after surveying the history of the employment of emergency
powers in Great Britain, France, Weimar, Germany and the United States, reverted to a
description of a scheme of �constitutional dictatorship� as solution to the vexing problems
presented by emergency.[98] Like Watkins and Friedrich, he stated a priori the conditions of
success of the �constitutional dictatorship,� thus:
1) No general regime or particular institution of
constitutional dictatorship should be initiated unless it is
necessary or even indispensable to the preservation of the State
and its constitutional order�
2) �the decision to institute a constitutional
dictatorship should never be in the hands of the man or men who
will constitute the dictator�
3) No government should initiate a constitutional
dictatorship without making specific provisions for its
termination�
4) �all uses of emergency powers and all
readjustments in the organization of the government should be
effected in pursuit of constitutional or legal requirements�

5) � no dictatorial institution should be adopted, no
right invaded, no regular procedure altered any more than is
absolutely necessary for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a
constitutional dictatorship should never be permanent in character
or effect�
7) The dictatorship should be carried on by persons
representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for
every action taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional
dictatorship, like the decision to institute one should never be in
the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond
the termination of the crisis for which it was instituted�
11) �the termination of the crisis must be followed by a
complete return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional
dictatorship�[99]
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence
or termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light of recent
experience, were one in saying that, �the suggestion that democracies surrender the
control of government to an authoritarian ruler in time of grave danger to the nation
is not based upon sound constitutional theory.� To appraise emergency power in terms of
constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It
matters not whether the term �dictator� is used in its normal sense (as applied to authoritarian
rulers) or is employed to embrace all chief executives administering emergency powers.
However used, �constitutional dictatorship� cannot be divorced from the implication of
suspension of the processes of constitutionalism. Thus, they favored instead the �concept of
constitutionalism� articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the
analysis of problems of emergency powers, and which is consistent with the
findings of this study, is that formulated by Charles H. McIlwain. While it
does not by any means necessarily exclude some indeterminate limitations
upon the substantive powers of government, full emphasis is placed
upon procedural limitations, and political responsibility. McIlwain clearly
recognized the need to repose adequate power in government. And in
discussing the meaning of constitutionalism, he insisted that the historical
and proper test of constitutionalism was the existence of adequate
processes for keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an exaggerated
emphasis upon separation of powers and substantive limitations on
governmental power. He found that the really effective checks on despotism
have consisted not in the weakening of government but, but rather in
the limiting of it; between which there is a great and very significant
difference. In associating constitutionalism with �limited� as
distinguished from �weak� government, McIlwain meant
government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the
legal limits to arbitrary power and a complete political responsibility of
government to the governed.[101]
In the final analysis, the various approaches to emergency of the above political
theorists �- from Lock�s �theory of prerogative,� to Watkins� doctrine of �constitutional
dictatorship� and, eventually, to McIlwain�s �principle of constitutionalism� --- ultimately
aim to solve one real problem in emergency governance, i.e., that of allotting increasing areas
of discretionary power to the Chief Executive, while insuring that such powers will be
exercised with a sense of political responsibility and under effective limitations and
checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution,
endeavored to create a government in the concept of Justice Jackson�s �balanced power
structure.�[102] Executive, legislative, and judicial powers are dispersed to the President, the
Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of emergency. Each branch is given a role to
serve as limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other words, in times of
emergency, our Constitution reasonably demands that we repose a certain amount of faith in the
basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to
operate within carefully prescribed procedural limitations.
a. �Facial Challenge�

Petitioners contend that PP 1017 is void on its face because of its �overbreadth.�
They claim that its enforcement encroached on both unprotected and protected rights under
Section 4, Article III of the Constitution and sent a �chilling effect� to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for
testing �on their faces� statutes in free speech cases, also known under the American Law
as First Amendment cases.[103]
A plain reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno,[104] the US Supreme Court held that �we
have not recognized an �overbreadth� doctrine outside the limited context of the First
Amendment� (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
�reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct.� Undoubtedly, lawless violence, insurrection and rebellion
are considered �harmful� and �constitutionally unprotected conduct.� In Broadrick v.
Oklahoma,[105] it was held:
It remains a �matter of no little difficulty� to determine when a
law may properly be held void on its face and when �such summary
action� is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at the
outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from �pure speech� toward
conduct and that conduct �even if expressive � falls within the scope
of otherwise valid criminal laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful, constitutionally
unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only �spoken words� and again, that �overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct.�[106] Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation.
Second, facial invalidation of laws is considered as �manifestly strong medicine,� to
be used �sparingly and only as a last resort,� and is �generally disfavored;�[107] The
reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication
is the principle that a person to whom a law may be applied will not be heard to challenge a law
on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other
situations not before the Court.[108] A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is
that it marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the
rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted
to raise the rights of third parties; and the court invalidates the entire
statute �on its face,� not merely �as applied for� so that the overbroad
law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the �chilling;� deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad law�s �very existence may cause
others not before the court to refrain from constitutionally protected speech
or expression.� An overbreadth ruling is designed to remove that deterrent
effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court
to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before the statute
is put into effect, is rarely if ever an appropriate task for the judiciary. The
 combination of the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis
of detailed statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
�by virtue of the power vested upon me by Section 18, Artilce
VII � do hereby command the Armed Forces of the Philippines, to maintain
law and order throughout the Philippines, prevent or suppress all forms of
lawless violence as well any act of insurrection or rebellion�

Second provision:

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

Petitioners likewise seek a facial review of PP 1017 on the ground of

vagueness. This, too, is unwarranted.
�and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
direction;�
Related to the �overbreadth� doctrine is the �void for vagueness doctrine� which
holds that �a law is facially invalid if men of common intelligence must necessarily guess
at its meaning and differ as to its application.�[110] It is subject to the same principles
governing overbreadth doctrine. For one, it is also an analytical tool for testing �on their
faces� statutes in free speech cases. And like overbreadth, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its application. They
also failed to establish that men of common intelligence cannot understand the meaning and
application of PP 1017.
Third provision:

b. Constitutional Basis of PP 1017

�as provided in Section 17, Article XII of the Constitution do

hereby declare a State of National Emergency.�
Now on the constitutional foundation of PP 1017.

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

First Provision: Calling-out Power

First provision:
 The first provision pertains to the President�s calling-out power. In
Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that
Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place the Philippines
or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing
to the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed
by any citizen, the sufficiency of the factual bases of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from its
filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days, otherwise
he shall be released.
grants the President, as Commander-in-Chief, a �sequence� of graduated powers. From the
most to the least benign, these are: the calling-out power, the power to suspend the privilege of
the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,[112] the Court ruled that the only criterion for the exercise of the calling-out
power is that �whenever it becomes necessary,� the President may call the armed forces
�to prevent or suppress lawless violence, invasion or rebellion.� Are these conditions
present in the instant cases? As stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her Office�s vast intelligence
network, she is in the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police
action. But every act that goes beyond the President�s calling-out power is considered illegal
or ultra vires. For this reason, a President must be careful in the exercise of his powers. He
cannot invoke a greater power when he wishes to act under a lesser power. There lies the
wisdom of our Constitution, the greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the President�s
authority to declare a �state of rebellion� (in Sanlakas) and the authority to proclaim a state of
national emergency. While President Arroyo�s authority to declare a �state of rebellion�
emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. � Proclamations. � Acts of the President fixing a
date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a specific
law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.
President Arroyo�s declaration of a �state of rebellion� was merely an act declaring a
status or condition of public moment or interest, a declaration allowed under Section 4 cited
above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and
deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national
emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a
provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She
also relied on Section 17, Article XII, a provision on the State�s extraordinary power to take
over privately-owned public utility and business affected with public interest. Indeed, PP 1017
calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed
harmless, without legal significance, or not written, as in the case of Sanlakas.
 Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of
Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain
therein that what the President invoked was her calling-out power.

Second Provision: �Take Care� Power

The declaration of Martial Law is a �warn[ing] to citizens that the military power has been
called upon by the executive to assist in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will The second provision pertains to the power of the President to ensure that the laws be
in any way render more difficult the restoration of order and the enforcement of law.�[113] faithfully executed. This is based on Section 17, Article VII which reads:

In his �Statement before the Senate Committee on Justice� on March 13, 2006, Mr.
Justice Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three powers of
the President as Commander-in-Chief, the power to declare Martial Law poses the most severe SEC. 17. The President shall have control of all the executive
threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot departments, bureaus, and offices. He shall ensure that the laws be
be used to stifle or persecute critics of the government. It is placed in the keeping of the faithfully executed.
President for the purpose of enabling him to secure the people from harm and to restore order
so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ. As the Executive in whom the executive power is vested,[115] the primary function of
the President is to enforce the laws as well as to formulate policies to be embodied in existing
laws. He sees to it that all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath or affirmation to the effect
that as President of the Philippines, he will, among others, �execute its laws.�[116] In the
exercise of such function, the President, if needed, may employ the powers attached to his office
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no as the Commander-in-Chief of all the armed forces of the country,[117] including the Philippine
more than a call by the President to the armed forces to prevent or suppress lawless National Police[118] under the Department of Interior and Local Government.[119]
violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial
Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any
act done contrary to its command is ultra vires.

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo,

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration of Martial Law or
suspension of the writ of habeas corpus.
Rafael Mariano, Teodoro Casi�o, Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in
violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in
Congress. They assail the clause �to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction.�

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

Petitioners� contention is understandable. A reading of PP 1017 operative clause

shows that it was lifted[120] from Former President Marcos� Proclamation No. 1081, which partly
reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines by virtue of the powers vested upon me by Article VII,
Section 10, Paragraph (2) of the Constitution, do hereby place the entire
Philippines as defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: �to enforce obedience to all the laws and decrees,
orders and regulations promulgated by me personally or upon my direction.� Upon the
other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction.�
Is it within the domain of President Arroyo to promulgate �decrees�?
PP 1017 states in part: �to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction.�
The President is granted an Ordinance Power under Chapter 2, Book III of Executive
Order No. 292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. � Acts of the President providing for
rules of a general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. � Acts of the President which
relate to particular aspect of governmental operations in pursuance of his
duties as administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. � Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of
an executive order.
Sec. 5. Memorandum Orders. � Acts of the President on matters
of administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied in
memorandum orders.
Sec. 6. Memorandum Circulars. � Acts of the President on
matters relating to internal administration, which the President desires to
bring to the attention of all or some of the departments, agencies, bureaus
or offices of the Government, for information or compliance, shall be
embodied in memorandum circulars.
Sec. 7. General or Special Orders. � Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines shall be issued as general or special orders.
President Arroyo�s ordinance power is limited to the foregoing issuances. She
cannot issue decrees similar to those issued by Former President Marcos under PP
1081. Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative power
during the period of Martial Law under the 1973 Constitution.[121]
This Court rules that the assailed PP 1017 is unconstitutional insofar as it
grants President Arroyo the authority to promulgate �decrees.� Legislative power is
peculiarly within the province of the Legislature. Section 1, Article VI categorically states that
�[t]he legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives.� To be sure, neither Martial Law nor a
state of rebellion nor a state of emergency can justify President Arroyo�s exercise of legislative
power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows
that these decrees are void and, therefore, cannot be enforced. With respect to �laws,� she
cannot call the military to enforce or implement certain laws, such as customs laws, laws
governing family and property relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless
violence.

Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws
and to all decrees, orders, and regulations promulgated
by me personally or upon my direction; and as
provided in Section 17, Article XII of the
Constitution do hereby declare a state of national
emergency.
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience �to all the laws
and to all decrees x x x� but also to act pursuant to the provision of Section 17, Article XII which
reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when
she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP
1017 purports to grant the President, without any authority or delegation from Congress, to take
over or direct the operation of any privately-owned public utility or business affected with public
interest.
This provision was first introduced in the 1973 Constitution, as a product of the
�martial law� thinking of the 1971 Constitutional Convention.[122] In effect at the time of its
approval was President Marcos� Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over �the management, control and
operation of the Manila Electric Company, the Philippine Long Distance Telephone Company,
the National Waterworks and Sewerage Authority, the Philippine National Railways, the
Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution
by the Government of its effort to contain, solve and end the present national emergency.�
Petitioners, particularly the members of the House of Representatives, claim that President
Arroyo�s inclusion of Section 17, Article XII in PP 1017 is an encroachment on the
legislature�s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President�s authority to declare �a state of
national emergency� and to exercise emergency powers. To the first, as elucidated by
the Court, Section 18, Article VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall have the sole
power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to
war but also to �other national emergency.� If the intention of the Framers of our
Constitution was to withhold from the President the authority to declare a �state of national
emergency� pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like
the declaration of the existence of a state of war), then the Framers could have provided
so. Clearly, they did not intend that Congress should first authorize the President before he can
declare a �state of national emergency.� The logical conclusion then is that President Arroyo
could validly declare the existence of a state of national emergency even in the absence of a
Congressional enactment.
 But the exercise of emergency powers, such as the taking over of privately owned
public utility or business affected with public interest, is a did, it must be found in some provision of the Constitution. And it is not
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and provisions of a
constitution which relate to the same subject matter will be construed together and considered in
the light of each other.[123] Considering that Section 17 of Article XII and Section 23 of Article VI,
previously quoted, relate to national emergencies, they must be read together to determine the
limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in
the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power not reposed upon it. However,
knowing that during grave emergencies, it may not be possible or practicable for Congress to
meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress
to grant emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.[124]
Section 17, Article XII must be understood as an aspect of the emergency powers
clause. The taking over of private business affected with public interest is just another facet of
the emergency powers generally reposed upon Congress. Thus, when Section 17 states that
the �the State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest,� it refers to Congress, not the President. Now,
whether or not the President may exercise such power is dependent on whether Congress may
delegate it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown
Sheet & Tube Co. et al. v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he
claimed that express constitutional language grants this power to the
President. The contention is that presidential power should be implied from
the aggregate of his powers under the Constitution. Particular reliance is
placed on provisions in Article II which say that �The executive Power shall
be vested in a President . . . .;� that �he shall take Care that the Laws be
faithfully executed;� and that he �shall be Commander-in-Chief of the
Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the
President�s military power as Commander-in-Chief of the Armed
Forces. The Government attempts to do so by citing a number of cases
upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even
though �theater of war� be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-in-
Chief of the Armed Forces has the ultimate power as such to take
possession of private property in order to keep labor disputes from
stopping production. This is a job for the nation�s lawmakers, not for
its military authorities.
Nor can the seizure order be sustained because of the
several constitutional provisions that grant executive power to the
President. In the framework of our Constitution, the President�s
power to see that the laws are faithfully executed refutes the idea that
he is to be a lawmaker. The Constitution limits his functions in the
lawmaking process to the recommending of laws he thinks wise and
the vetoing of laws he thinks bad. And the Constitution is neither
silent nor equivocal about who shall make laws which the President is
to execute. The first section of the first article says that �All
legislative Powers herein granted shall be vested in a Congress of the
United States. . .�[126]
Petitioner Cacho-Olivares, et al. contends that the term �emergency� under Section
17, Article XII refers to �tsunami,� �typhoon,� �hurricane� and �similar
occurrences.� This is a limited view of �emergency.�
Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that which is accepted as
normal. Implicit in this definitions are the elements of intensity, variety, and
perception.[127] Emergencies, as perceived by legislature or executive in the United Sates since
1933, have been occasioned by a wide range of situations, classifiable under three (3) principal
heads: a) economic,[128] b) natural disaster,[129] and c) national security.[130]
�Emergency,� as contemplated in our Constitution, is of the same breadth. It may
include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar
catastrophe of nationwide proportions or effect.[131] This is evident in the Records of the
Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee�s definition of �national
emergency� which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take
over or direct the operation of any privately owned public utility or business
affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los
Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
�national emergency.�
MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.[132]
x x x x x x
MR. TINGSON. May I ask the committee if �national emergency�
refers to military national emergency or could this be economic
emergency?�
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
[133]
MR. TINGSON. Thank you very much.
It may be argued that when there is national emergency, Congress may not be able to
convene and, therefore, unable to delegate to the President the power to take over privately-
owned public utility or business affected with public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
�x x x
After all the criticisms that have been made against the
efficiency of the system of the separation of powers, the fact
remains that the Constitution has set up this form of government,
with all its defects and shortcomings, in preference to the
commingling of powers in one man or group of men. The Filipino
people by adopting parliamentary government have given notice
that they share the faith of other democracy-loving peoples in this
system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress
all the time, not excepting periods of crisis no matter how
serious. Never in the history of the United States, the basic
features of whose Constitution have been copied in ours, have
specific functions of the legislative branch of enacting laws been
surrendered to another department � unless we regard as
legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was
fighting a total war, or when it was engaged in a life-and-death
struggle to preserve the Union. The truth is that under our concept
of constitutional government, in times of extreme perils more than
in normal circumstances �the various branches, executive,
legislative, and judicial,� given the ability to act, are called upon
�to perform the duties and discharge the responsibilities
committed to them respectively.�
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her during the
emergency to temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privately-owned public
utility or business affected with public interest. The President cannot decide whether
exceptional circumstances exist warranting the take over of privately-owned public
utility or business affected with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President has no power to point
out the types of businesses affected with public interest that should be taken over. In short, the
President has no absolute authority to exercise all the powers of the State under Section 17,
Article VII in the absence of an emergency powers act passed by Congress.
c. �AS APPLIED CHALLENGE�
One of the misfortunes of an emergency, particularly, that which pertains to security, is
that military necessity and the guaranteed rights of the individual are often not compatible. Our
history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here,
the right against unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of assembly under the
Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate �direct injury.�
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006,
they were arrested without warrants on their way to EDSA to celebrate the 20 thAnniversary
of People Power I. The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc.
claimed that on February 25, 2006, the CIDG operatives �raided and ransacked without
warrant� their office. Three policemen were assigned to guard their office as a possible
�source of destabilization.� Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were �turned away and dispersed� when they went to EDSA and later, to Ayala
Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the �direct injuries� allegedly suffered by the said petitioners shows that
they resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of
these illegal acts? In general, does the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although
they may be abused and misabused[135] and may afford an opportunity for abuse in the
manner of application.[136] The validity of a statute or ordinance is to be determined from its
general purpose and its efficiency to accomplish the end desired, not from its effects in a
particular case.[137] PP 1017 is merely an invocation of the President�s calling-out power. Its
general purpose is to command the AFP to suppress all forms of lawless violence, invasion or
rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP
1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct
illegal arrest, search or violate the citizens� constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the validity of the
statute or ordinance is to be measured is the essential basis for the exercise of power, and not
a mere incidental result arising from its exertion.[138] This is logical. Just imagine the
absurdity of situations when laws maybe declared unconstitutional just because the officers
implementing them have acted arbitrarily. If this were so, judging from the blunders committed
by policemen in the cases passed upon by the Court, majority of the provisions of the Revised
Penal Code would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are �acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines.� They are internal rules issued by
the executive officer to his subordinates precisely for the proper and efficientadministration of
law. Such rules and regulations create no relation except between the official who issues them
and the official who receives them.[139] They are based on and are the product of, a relationship
in which power is their source, and obedience, their object. [140] For these reasons, one
requirement for these rules to be valid is that they must be reasonable, not arbitrary or
capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the �necessary
and appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence.�
Unlike the term �lawless violence� which is unarguably extant in our statutes and
the Constitution, and which is invariably associated with �invasion, insurrection or rebellion,�
the phrase �acts of terrorism� is still an amorphous and vague concept. Congress has yet to
enact a law defining and punishing acts of terrorism.
 In fact, this �definitional predicament� or the �absence of an agreed definition of
terrorism� confronts not only our country, but the international
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the �fight
against terrorism� has become one of the basic slogans when it comes to
the justification of the use of force against certain states and against groups
operating internationally. Lists of states �sponsoring terrorism� and of
terrorist organizations are set up and constantly being updated according to
criteria that are not always known to the public, but are clearly determined
by strategic interests.
The basic problem underlying all these military actions � or
threats of the use of force as the most recent by the United States against
Iraq � consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal
categorization of acts of violence either by states, by armed groups such as
liberation movements, or by individuals.
The dilemma can by summarized in the saying �One country�s
terrorist is another country�s freedom fighter.� The apparent
contradiction or lack of consistency in the use of the term �terrorism� may
further be demonstrated by the historical fact that leaders of national
liberation movements such as Nelson Mandela in South Africa, Habib
Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a
few, were originally labeled as terrorists by those who controlled the territory
at the time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts �
the differentia specifica distinguishing those acts from eventually legitimate
acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization
has been trying in vain to reach a consensus on the basic issue of
definition. The organization has intensified its efforts recently, but has been
unable to bridge the gap between those who associate �terrorism� with
any violent act by non-state groups against civilians, state functionaries or
infrastructure or military installations, and those who believe in the concept
of the legitimate use of force when resistance against foreign occupation or
against systematic oppression of ethnic and/or religious groups within a
state is concerned.
The dilemma facing the international community can best be
illustrated by reference to the contradicting categorization of organizations
and movements such as Palestine Liberation Organization (PLO) � which
is a terrorist group for Israel and a liberation movement for Arabs and
Muslims � the Kashmiri resistance groups � who are terrorists in the
perception of India, liberation fighters in that of Pakistan � the earlier
Contras in Nicaragua � freedom fighters for the United States, terrorists for
the Socialist camp � or, most drastically, the Afghani Mujahedeen (later to
become the Taliban movement): during the Cold War period they were a
group of freedom fighters for the West, nurtured by the United States, and a
terrorist gang for the Soviet Union. One could go on and on in enumerating
examples of conflicting categorizations that cannot be reconciled in any way
� because of opposing political interests that are at the roots of those
perceptions.
How, then, can those contradicting definitions and conflicting
perceptions and evaluations of one and the same group and its actions be
explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on
whether a state is in the position of an occupying power or in that of a rival,
or adversary, of an occupying power in a given territory, the definition of
terrorism will �fluctuate� accordingly. A state may eventually see itself as
protector of the rights of a certain ethnic group outside its territory and will
therefore speak of a �liberation struggle,� not of �terrorism� when acts
of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a
decision on the definition of terrorism exactly because of these conflicting
interests of sovereign states that determine in each and every instance how
a particular armed movement (i.e. a non-state actor) is labeled in regard to
the terrorists-freedom fighter dichotomy. A �policy of double standards�
on this vital issue of international affairs has been the unavoidable
consequence.
This �definitional predicament� of an organization consisting of
sovereign states � and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! � has become even more serious
in the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being marginalized; and the
problem has become even more acute since the terrorist attacks of 11
September 2001 I the United States.[141]
The absence of a law defining �acts of terrorism� may result in abuse and
oppression on the part of the police or military. An illustration is when a group of persons are
merely engaged in a drinking spree. Yet the military or the police may consider the act as an
act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse
and oppression on their part. It must be remembered that an act can only be considered a crime
if there is a law defining the same as such and imposing the corresponding penalty thereon.
 So far, the word �terrorism� appears only once in our criminal laws, i.e., in P.D. No.
1835 dated January 16, 1981 enacted by President Marcos during the Martial Law regime. This
decree is entitled �Codifying The Various Laws on Anti-Subversion and Increasing The
Penalties for Membership in Subversive Organizations.� The word �terrorism� is mentioned
in the following provision: �That one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by force, violence, terrorism, x x x shall be
punished by reclusion temporal x x x.�
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of
the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define �acts of terrorism.� Since there is no law defining �acts of
terrorism,� it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine
what acts constitute terrorism. Her judgment on this aspect is absolute, without
restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking into
offices and residences, taking over the media enterprises, prohibition and dispersal of all
assemblies and gatherings unfriendly to the administration. All these can be effected in the
name of G.O. No. 5. These acts go far beyond the calling-out power of the President. Certainly,
they violate the due process clause of the Constitution. Thus, this Court declares that the �acts
of terrorism� portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit
acts beyond what are necessary and appropriate to suppress and prevent lawless
violence, the limitation of their authority in pursuing the Order. Otherwise, such acts are
considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that �the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.�[142] The plain import of the
language of the Constitution is that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.[143]
In the Brief Account[144] submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP operatives arrested him on
the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he
was fingerprinted, photographed and booked like a criminal suspect; fourth, he was treated
brusquely by policemen who �held his head and tried to push him� inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang No.
880[145]and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he
was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace
officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense.
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
 x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner
David�s warrantless arrest. During the inquest for the charges of inciting to
sedition andviolation of BP 880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the invective �Oust Gloria
Now�and their erroneous assumption that petitioner David was the leader of the
rally.[146] Consequently, the Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and
even if he was wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for the charge of violation of
BP 880 as it was not even known whether petitioner David was the leader of the rally. [147]
But what made it doubly worse for petitioners David et al. is that not only was their
right against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.
�Assembly� means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our republican
institution and complements the right of speech. As in the case of freedom of expression, this
right is not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent. In other words, like other
rights embraced in the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is intended to
be held in a public place, a permit for the use of such place, and not for the assembly itself, may
be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime, neither was
there a showing of a clear and present danger that warranted the limitation of that right. As can
be gleaned from circumstances, the charges of inciting to seditionand violation of BP
880 were mere afterthought. Even the Solicitor General, during the oral argument, failed to
justify the arresting officers� conduct. In De Jonge v. Oregon,[148] it was held that peaceable
assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a
crime. The holding of meetings for peaceable political action cannot be
proscribed. Those who assist in the conduct of such meetings cannot be
branded as criminals on that score. The question, if the rights of free speech
and peaceful assembly are not to be preserved, is not as to the auspices
under which the meeting was held but as to its purpose; not as to the
relations of the speakers, but whether their utterances transcend the bounds
of the freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed or are
engaged in a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violations of valid laws. But it is a
different matter when the State, instead of prosecuting them for such
offenses, seizes upon mere participation in a peaceable assembly and
a lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and
arrest of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal
was done merely on the basis of Malaca�ang�s directive canceling all permits previously
issued by local government units. This is arbitrary. The wholesale cancellation of all permits to
rally is a blatant disregard of the principle that �freedom of assembly is not to be limited,
much less denied, except on a showing of a clear and present danger of a substantive
evil that the State has a right to prevent.�[149] Tolerance is the rule and limitation is the
exception. Only upon a showing that an assembly presents a clear and present danger that the
State may deny the citizens� right to exercise it. Indeed, respondents failed to show or
convince the Court that the rallyists committed acts amounting to lawless violence, invasion or
rebellion. With the blanket revocation of permits, the distinction between protected and
unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged
with the local government units. They have the power to issue permits and to revoke such
permits after due notice and hearing on the determination of the presence of clear and present
danger. Here, petitioners were not even notified and heard on the revocation of their
permits.[150] The first time they learned of it was at the time of the dispersal. Such absence of
notice is a fatal defect. When a person�s right is restricted by government action, it behooves a
democratic government to see to it that the restriction is fair, reasonable, and according to
procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of
speech i.e., the freedom of the press. Petitioners� narration of facts, which the Solicitor
General failed to refute, established the following: first, the Daily Tribune�s offices were
searched without warrant; second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o� clock in the morning of February
25, 2006; fourth, the search was conducted in the absence of any official of the Daily
Tribune except the security guard of the building; and fifth, policemen stationed themselves at
the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid was �meant to show a �strong
presence,� to tell media outlets not to connive or do anything that would help the rebels
in bringing down this government.� Director General Lomibao further stated that �if they
do not follow the standards �and the standards are if they would contribute to instability
in the government, or if they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 � we will recommend a �takeover.�� National Telecommunications
Commissioner Ronald Solis urged television and radio networks to �cooperate� with the
government for the duration of the state of national emergency. He warned that his agency
will not hesitate to recommend the closure of any broadcast outfit that violates rules set
out for media coverage during times when the national security is threatened.[151]
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays
down the steps in the conduct of search and seizure. Section 4 requires that a search
warrant be issued upon probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 8 mandates that the search of a
house, room, or any other premise be made in the presence of the lawful occupantthereof or
any member of his family or in the absence of the latter, in the presence of two (2) witnesses of
sufficient age and discretion residing in the same locality. And Section 9 states that the
warrant must direct that it be served in the daytime, unless the property is on the person or in
the place ordered to be searched, in which case a direction may be inserted that it be served at
any time of the day or night. All these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners� freedom of the press. The best gauge
of a free and democratic society rests in the degree of freedom enjoyed by its media. In
the Burgos v. Chief of Staff[152] this Court held that --
As heretofore stated, the premises searched were the business
and printing offices of the "Metropolitan Mail" and the "We Forum�
newspapers. As a consequence of the search and seizure, these premises
were padlocked and sealed, with the further result that the printing and
publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or
censorship abhorrent to the freedom of the press guaranteed under
the fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even
militant press is essential for the political enlightenment and growth of
the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
�Metropolitan Mail� and �We Forum� newspapers in the above case, yet it cannot be
denied that the CIDG operatives exceeded their enforcement duties. The search and seizure of
materials for publication, the stationing of policemen in the vicinity of the The Daily
Tribune offices, and the arrogant warning of government officials to media, are plain
censorship. It is that officious functionary of the repressive government who tells the citizen that
he may speak only if allowed to do so, and no more and no less than what he is permitted to say
on pain of punishment should he be so rash as to disobey.[153] Undoubtedly, the The Daily
Tribune was subjected to these arbitrary intrusions because of its anti-government
sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it
involves the most defiant of our citizens. Freedom to comment on public affairs is essential to
the vitality of a representative democracy. It is the duty of the courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto
should always be obsta principiis.[154]
 Well, it was the police that did that, Your
Honor. Not upon my instructions.
Incidentally, during the oral arguments, the Solicitor General admitted that the search
of the Tribune�s offices and the seizure of its materials for publication and other papers are
illegal; and that the same are inadmissible �for any purpose,� thus:
SR. ASSO. JUSTICE PUNO:

JUSTICE CALLEJO:
Are you saying that the act of the policeman is
illegal, it is not based on any law, and it is not
based on Proclamation 1017.
You made quite a mouthful of admission when
you said that the policemen, when inspected
the Tribune for the purpose of gathering
evidence and you admitted that the SOLGEN BENIPAYO:
policemen were able to get the clippings. Is
that not in admission of the admissibility of
these clippings that were taken from the
Tribune? It is not based on Proclamation 1017, Your
Honor, because there is nothing in 1017
which says that the police could go and
inspect and gather clippings from Daily
SOLICITOR GENERAL BENIPAYO: Tribune or any other newspaper.

Under the law they would seem to be, if they SR. ASSO. JUSTICE PUNO:
were illegally seized, I think and I know, Your
Honor, and these are inadmissible for any
purpose.[155]
Is it based on any law?

xxx xxx xxx

SOLGEN BENIPAYO:

SR. ASSO. JUSTICE PUNO:

As far as I know, no, Your Honor, from the
facts, no.

These have been published in the past issues of

the Daily Tribune; all you have to do is to get
those past issues. So why do you have to go SR. ASSO. JUSTICE PUNO:
there at 1 o�clock in the morning and
without any search warrant? Did they
become suddenly part of the evidence of
rebellion or inciting to sedition or what? So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I
said, I don�t know if it is premature to say
this, we do not condone this. If the people
who have been injured by this would want
to sue them, they can sue and there are
remedies for this.[156]
Likewise, the warrantless arrests and seizures executed by the police were, according
to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not
contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don�t know whether this will clarify. The acts,
the supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be
condoned. You cannot blame the President for, as
you said, a misapplication of the law. These are acts of
the police officers, that is their responsibility.[157]
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and �should result in no constitutional or statutory breaches if applied according to their
letter.�
The Court has passed upon the constitutionality of these issuances. Its ratiocination
has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to
the calling out by the President of the military to prevent or suppress lawless violence, invasion
or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the
police committed acts which violate the citizens� rights under the Constitution, this Court has to
declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganiban�s concurring opinion,
attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 � a supervening event
� would have normally rendered this case moot and academic. However, while PP 1017 was
still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have
been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed �if the May 1
rallies� become �unruly and violent.� Consequently, the transcendental issues raised by the
parties should not be �evaded;� they must now be resolved to prevent future constitutional
aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a
call by the President for the AFP to prevent or suppress lawless violence. The proclamation is
sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed
earlier. However, PP 1017�s extraneous provisions giving the President express or implied
power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not
related to lawless violence as well as decrees promulgated by the President; and (3) to impose
standards on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17, Article XII of the
Constitution, the President, in the absence of a legislation, cannot take over privately-owned
public utility and private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President � acting as Commander-in-Chief � addressed to subalterns in the AFP to carry out
the provisions of PP 1017. Significantly, it also provides a valid standard � that the military and
the police should take only the �necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence.� But the words �acts of terrorism�
found in G.O. No. 5 have not been legally defined and made punishable by Congress and
should thus be deemed deleted from the said G.O. While �terrorism� has been denounced
generally in media, no law has been enacted to guide the military, and eventually the courts, to promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in
determine the limits of the AFP�s authority in carrying out this portion of G.O. No. 5. PP 1017 declaring national emergency under Section 17, Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does not authorize the President to take over
privately-owned public utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and
the PNP should implement PP 1017, i.e. whatever is �necessary and appropriate actions
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine and measures to suppress and prevent acts of lawless violence.� Considering that �acts
clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the of terrorism� have not yet been defined and made punishable by the Legislature, such portion
dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the of G.O. No. 5 is declared UNCONSTITUTIONAL.
imposition of standards on media or any prior restraint on the press; and (4) the warrantless
search of the Tribune offices and the whimsical seizures of some articles for publication and
other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by
the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action
and/or relevant criminal Informations have not been presented before this Court. Elementary
due process bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of
proof that these petitioners were committing acts constituting lawless violence, invasion or
rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint
on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of
its articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

It is well to remember that military power is a means to an end and substantive SO ORDERED.
civil rights are ends in themselves. How to give the military the power it needs to protect
the Republic without unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state. During emergency, governmental action may vary in
breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain
our people�s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority to cope
with crises without surrendering the two vital principles of constitutionalism: the maintenance of
legal limits to arbitrary power, and political responsibility of the government to the
governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on
the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
 behalf of the President of the Philippines,

ARMED FORCES OF THE PHILIPPINES

EN BANC
(AFP), or any of their units operating in

the Autonomous Region in Muslim

Mindanao (ARMM), and PHILIPPINE

DATU ZALDY UY AMPATUAN, G.R. No. 190259
NATIONAL POLICE, or any of their Promulgated:
ANSARUDDIN ADIONG, REGIE
units operating in ARMM,
SAHALI-GENERALE
Respondents. June 7, 2011
Petitioners, Present:

CORONA, C.J.,
x ---------------------------------------------------------------------------------------- x
CARPIO,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,
DECISION
- versus - BRION,

PERALTA,
ABAD, J.:
BERSAMIN,

DEL CASTILLO,

ABAD,
On November 24, 2009, the day after the gruesome massacre of 57 men and women, including
VILLARAMA, JR., some news reporters, then President Gloria Macapagal-Arroyo issued Proclamation
1946,[1] placing the Provinces of Maguindanao and Sultan Kudarat and the City
PEREZ, of Cotabato under a state of emergency. She directed the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP) to undertake such measures as may be allowed
MENDOZA, and by the Constitution and by law to prevent and suppress all incidents of lawless violence in the
named places.
SERENO, JJ.

HON. RONALDO PUNO, in his capacity

as Secretary of the Department of Interior
and Local Government and alter-ego of
President Gloria Macapagal-Arroyo,
Three days later or on November 27, President Arroyo also issued Administrative
Order 273 (AO 273)[2] transferring supervision of the Autonomous Region of Muslim Mindanao
(ARMM) from the Office of the President to the Department of Interior and Local Government
(DILG). But, due to issues raised over the terminology used in AO 273, the President issued
Administrative Order 273-A (AO 273-A) amending the former, by delegating instead of
transferring supervision of the ARMM to the DILG.[3]

and anyone acting in his stead and on

Claiming that the Presidents issuances encroached on the ARMMs autonomy, petitioners Datu
Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-Generale, all ARMM officials,[4] filed
this petition for prohibition under Rule 65. They alleged that the proclamation and the orders 2. Whether or not President Arroyo invalidly exercised emergency powers when she
empowered the DILG Secretary to take over ARMMs operations and seize the regional called out the AFP and the PNP to prevent and suppress all incidents of lawless violence in
governments powers, in violation of the principle of local autonomy under Republic Act 9054 Maguindanao, Sultan Kudarat, and Cotabato City; and
(also known as the Expanded ARMM Act) and the Constitution. The President gave the DILG
Secretary the power to exercise, not merely administrative supervision, but control over the
ARMM since the latter could suspend ARMM officials and replace them. [5]
3. Whether or not the President had factual bases for her actions.

Petitioner ARMM officials claimed that the President had no factual basis for declaring a state of
emergency, especially in the Province of Sultan Kudarat and the City of Cotabato, where no The Rulings of the Court
critical violent incidents occurred. The deployment of troops and the taking over of the ARMM
constitutes an invalid exercise of the Presidents emergency powers. [6] Petitioners asked that We dismiss the petition.
Proclamation 1946 as well as AOs 273 and 273-A be declared unconstitutional and that
respondents DILG Secretary, the AFP, and the PNP be enjoined from implementing them.

One. The claim of petitioners that the subject proclamation and administrative orders
[7]
violate the principle of local autonomy is anchored on the allegation that, through them, the
In its comment for the respondents, the Office of the Solicitor General (OSG) insisted President authorized the DILG Secretary to take over the operations of the ARMM and assume
that the President issued Proclamation 1946, not to deprive the ARMM of its autonomy, but to direct governmental powers over the region.
restore peace and order in subject places.[8] She issued the proclamation pursuant to her calling
out power[9] as Commander-in-Chief under the first sentence of Section 18, Article VII of the
Constitution. The determination of the need to exercise this power rests solely on her
wisdom.[10] She must use her judgment based on intelligence reports and such best information
But, in the first place, the DILG Secretary did not take over control of the powers of the
as are available to her to call out the armed forces to suppress and prevent lawless violence
ARMM. After law enforcement agents took respondent Governor of ARMM into custody for
wherever and whenever these reared their ugly heads.
alleged complicity in the Maguindanao massacre, the ARMM Vice-Governor, petitioner
Ansaruddin Adiong, assumed the vacated post on December 10, 2009 pursuant to the rule on
On the other hand, the President merely delegated through AOs 273 and 273-A her succession found in Article VII, Section 12,[14] of RA 9054. In turn, Acting Governor Adiong
supervisory powers over the ARMM to the DILG Secretary who was her alter ego any
named the then Speaker of the ARMM Regional Assembly, petitioner Sahali-Generale, Acting
way. These orders did not authorize a take over of the ARMM. They did not give him blanket ARMM Vice-Governor.[15] In short, the DILG Secretary did not take over the administration or
authority to suspend or replace ARMM officials.[11] The delegation was necessary to facilitate the
operations of the ARMM.
investigation of the mass killings.[12] Further, the assailed proclamation and administrative orders
did not provide for the exercise of emergency powers.[13]

Although normalcy has in the meantime returned to the places subject of this petition, it might be
relevant to rule on the issues raised in this petition since some acts done pursuant to
Proclamation 1946 and AOs 273 and 273-A could impact on the administrative and criminal
cases that the government subsequently filed against those believed affected by such
proclamation and orders.
The Issues Presented
The issues presented in this case are:
Two. Petitioners contend that the President unlawfully exercised emergency powers
when she ordered the deployment of AFP and PNP personnel in the places mentioned in the
proclamation.[16] But such deployment is not by itself an exercise of emergency powers as
understood under Section 23 (2), Article VI of the Constitution, which provides:
SECTION 23. x x x (2) In times of war or other national
emergency, the Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment thereof.

1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the principle of
local autonomy under Section 16, Article X of the Constitution, and Section 1, Article V of the
Expanded ARMM Organic Act;
The President did not proclaim a national emergency, only a state of emergency in the
three places mentioned. And she did not act pursuant to any law enacted by Congress that
authorized her to exercise extraordinary powers. The calling out of the armed forces to prevent
or suppress lawless violence in such places is a power that the Constitution directly vests in the
President. She did not need a congressional authority to exercise the same.
 ARMM were placed under a state of emergency, it follows that the take over of the entire ARMM
by the DILG Secretary had no basis too.[21]
Three. The Presidents call on the armed forces to prevent or suppress lawless
violence springs from the power vested in her under Section 18, Article VII of the Constitution,
which provides.[17]
But, apart from the fact that there was no such take over to begin with, the OSG also
clearly explained the factual bases for the Presidents decision to call out the armed forces, as
follows:
SECTION 18. The President shall be the Commander-in-Chief
of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. x x x The Ampatuan and Mangudadatu clans are prominent
families engaged in the political control of Maguindanao. It is also a
known fact that both families have an arsenal of armed followers who
hold elective positions in various parts of the ARMM and the rest
While it is true that the Court may inquire into the factual bases for the Presidents of Mindanao.
exercise of the above power,[18] it would generally defer to her judgment on the matter. As the
Court acknowledged in Integrated Bar of the Philippines v. Hon. Zamora,[19] it is clearly to the
President that the Constitution entrusts the determination of the need for calling out the armed
forces to prevent and suppress lawless violence. Unless it is shown that such determination was Considering the fact that the principal victims of the brutal
attended by grave abuse of discretion, the Court will accord respect to the Presidents judgment. bloodshed are members of the Mangudadatu family and the main
Thus, the Court said: perpetrators of the brutal killings are members and followers of the
Ampatuan family, both the military and police had to prepare for and
prevent reported retaliatory actions from the Mangudadatu clan and
additional offensive measures from the Ampatuan clan.
If the petitioner fails, by way of proof, to support the
assertion that the President acted without factual basis, then this
Court cannot undertake an independent investigation beyond the
pleadings. The factual necessity of calling out the armed forces is not xxxx
easily quantifiable and cannot be objectively established since matters
considered for satisfying the same is a combination of several factors
which are not always accessible to the courts. Besides the absence of
textual standards that the court may use to judge necessity, The Ampatuan forces are estimated to be approximately two
information necessary to arrive at such judgment might also prove thousand four hundred (2,400) persons, equipped with about two
unmanageable for the courts. Certain pertinent information might be thousand (2,000) firearms, about four hundred (400) of which have
difficult to verify, or wholly unavailable to the courts. In many been accounted for. x x x
instances, the evidence upon which the President might decide that
there is a need to call out the armed forces may be of a nature not
constituting technical proof.
As for the Mangudadatus, they have an estimated one
thousand eight hundred (1,800) personnel, with about two hundred
(200) firearms. x x x
On the other hand, the President, as Commander-in-Chief
has a vast intelligence network to gather information, some of which
may be classified as highly confidential or affecting the security of the
state. In the exercise of the power to call, on-the-spot decisions may Apart from their own personal forces, both clans have
be imperatively necessary in emergency situations to avert great loss
Special Civilian Auxiliary Army (SCAA) personnel who support them:
of human lives and mass destruction of property. Indeed, the decision about five hundred (500) for the Ampatuans and three hundred (300)
to call out the military to prevent or suppress lawless violence must be for the Mangudadatus.
done swiftly and decisively if it were to have any effect at all. x x x. [20]

What could be worse than the armed clash of two warring

Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of clans and their armed supporters, especially in light of intelligence
Maguindanao, Sultan Kudarat and Cotabato City, as well as the Presidents exercise of the reports on the potential involvement of rebel armed groups (RAGs).
calling out power had no factual basis. They simply alleged that, since not all areas under the
 One RAG was reported to have planned an attack on the WHEREFORE, the petition is DISMISSED for lack of merit.
forces of Datu Andal Ampatuan, Sr. to show support and sympathy for
the victims. The said attack shall worsen the age-old territorial dispute
between the said RAG and the Ampatuan family.
SO ORDERED.

xxxx

On the other hand, RAG faction which is based in Sultan

Kudarat was reported to have received three million pesos
(P3,000,000.00) from Datu Andal Ampatuan, Sr. for the procurement of
ammunition. The said faction is a force to reckon with because the
group is well capable of launching a series of violent activities to
divert the attention of the people and the authorities away from the
multiple murder case. x x x

In addition, two other factions of a RAG are likely to support

the Mangudadatu family. The Cotabato-based faction has the strength
of about five hundred (500) persons and three hundred seventy-two
(372) firearms while the Sultan Kudarat-based faction has the strength
of about four hundred (400) persons and three hundred (300) firearms
and was reported to be moving towards Maguindanao to support the
Mangudadatu clan in its armed fight against the Ampatuans.[22]

In other words, the imminence of violence and anarchy at the time the President issued
Proclamation 1946 was too grave to ignore and she had to act to prevent further bloodshed and
hostilities in the places mentioned. Progress reports also indicated that there was movement in
these places of both high-powered firearms and armed men sympathetic to the two
clans.[23] Thus, to pacify the peoples fears and stabilize the situation, the President had to take
preventive action. She called out the armed forces to control the proliferation of loose firearms
and dismantle the armed groups that continuously threatened the peace and security in the
affected places.

Notably, the present administration of President Benigno Aquino III has not withdrawn the
declaration of a state of emergency under Proclamation 1946. It has been reported[24]that the
declaration would not be lifted soon because there is still a need to disband private armies and
confiscate loose firearms. Apparently, the presence of troops in those places is still necessary to
ease fear and tension among the citizenry and prevent and suppress any violence that may still
erupt, despite the passage of more than a year from the time of the Maguindanao massacre.

Since petitioners are not able to demonstrate that the proclamation of state of
emergency in the subject places and the calling out of the armed forces to prevent or suppress
lawless violence there have clearly no factual bases, the Court must respect the Presidents
actions.
 EN BANC x ---------------------------------------------------- x

DIDAGEN P. DILANGALEN, G.R. No. 190294

PHILIP SIGFRID A. FORTUN G.R. No. 190293 Petitioner,

and ALBERT LEE G. ANGELES,

Petitioners, Present: - versus -

CORONA, C.J.,

CARPIO, EDUARDO R. ERMITA in his capacity as

Executive Secretary, NORBERTO
VELASCO, JR., GONZALES in his capacity as Secretary of
National Defense, RONALDO PUNO in his
LEONARDO-DE CASTRO, capacity as Secretary of Interior and Local
Government,
BRION,
Respondents.
- versus - PERALTA,

BERSAMIN,
x ---------------------------------------------------- x
DEL CASTILLO,

ABAD,
NATIONAL UNION OF PEOPLES G.R. No. 190301
VILLARAMA, JR.,
LAWYERS (NUPL) SECRETARY
PEREZ, GENERAL NERI JAVIER COLMENARES,
BAYAN MUNA REPRESENTATIVE SATUR
MENDOZA, C. OCAMPO, GABRIELA WOMENS PARTY
REPRESENTATIVE LIZA L. MAZA, ATTY.
JULIUS GARCIA MATIBAG, ATTY.
SERENO,
EPHRAIM B. CORTEZ, ATTY. JOBERT
ILARDE PAHILGA, ATTY. VOLTAIRE B.
REYES, and
AFRICA, BAGONG ALYANSANG
MAKABAYAN (BAYAN) SECRETARY
PERLAS-BERNABE, JJ. GENERAL RENATO M. REYES, JR. and
ANTHONY IAN CRUZ,
GLORIA MACAPAGAL-ARROYO, as
Petitioners,
Commander-in-Chief and President of the
Republic of the Philippines, EDUARDO
ERMITA, Executive Secretary, ARMED
FORCES OF THE PHILIPPINES (AFP), or
- versus -
any of their units, PHILIPPINE NATIONAL
POLICE (PNP), or any of their units, JOHN
DOES and JANE DOES acting under their
direction and control,
PRESIDENT GLORIA MACAPAGAL-
ARROYO, EXECUTIVE SECRETARY
Respondents.
EDUARDO R. ERMITA, ARMED FORCES
OF THE PHILIPPINES CHIEF OF STAFF
GENERAL VICTOR S. IBRADO,
PHILIPPINE NATIONAL POLICE - versus -
DIRECTOR GENERAL JESUS A.
VERZOSA, DEPARTMENT OF JUSTICE
SECRETARY AGNES VST DEVANADERA,
ARMED FORCES OF THE PHILIPPINES GLORIA MACAPAGAL-ARROYO, in his
EASTERN MINDANAO COMMAND CHIEF (sic) capacity as President of the Republic
LIEUTENANT GENERAL RAYMUNDO B. of the Philippines, HON. EDUARDO
FERRER, ERMITA, JR., in his capacity as Executive
Secretary, and HON. ROLANDO ANDAYA
Respondents. in his capacity as Secretary of the
Department of Budget and Management,
GENERAL VICTOR IBRADO, in his
capacity as Armed Forces of the
x ---------------------------------------------------- x Philippines Chief of Staff, DIRECTOR
JESUS VERZOSA, in his capacity as Chief
of the Philippine National Police,

JOSEPH NELSON Q. LOYOLA, G.R. No. 190302 Respondents.

Petitioner,

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

- versus -

BAILENG S. MANTAWIL, DENGCO G.R. No. 190356

HER EXCELLENCY PRESIDENT GLORIA SABAN, Engr. OCTOBER CHIO,

MACAPAGAL-ARROYO, ARMED FORCES AKBAYAN PARTY LIST
CHIEF OF STAFF GENERAL VICTOR REPRESENTATIVES WALDEN F.
IBRADO, PHILIPPINE NATIONAL POLICE BELLO and ANA THERESIA
(PNP), DIRECTOR GENERAL JESUS HONTIVEROS-BARAQUEL, LORETTA
VERZOSA, EXECUTIVE SECRETARY ANN P. ROSALES, MARVIC M.V.F.
EDUARDO ERMITA, LEONEN, THEODORE O. TE and
IBARRA M. GUTIERREZ III,
Respondents.
Petitioners,

x ---------------------------------------------------- x
- versus -

JOVITO R. SALONGA, RAUL C. G.R. No. 190307

PANGALANGAN, H. HARRY L. ROQUE,
JR., JOEL R. BUTUYAN, EMILIO
CAPULONG, FLORIN T. HILBAY, ROMEL
R. BAGARES, DEXTER DONNE B. DIZON,
ALLAN JONES F. LARDIZABAL and
GILBERT T. ANDRES, suing as taxpayers
and as CONCERNED Filipino citizens,
Petitioners,
THE EXECUTIVE SECRETARY, THE
SECRETARY OF NATIONAL DEFENSE,
THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF
BUDGET AND MANAGEMENT, and THE
CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES, THE
DIRECTOR GENERAL OF THE PHILIPPINE
NATIONAL POLICE,

Respondents.
x ---------------------------------------------------- x Believing that she needed greater authority to put order in Maguindanao and secure it
from large groups of persons that have taken up arms against the constituted authorities in the
province, on December 4, 2009 President Arroyo issued Presidential Proclamation 1959
declaring martial law and suspending the privilege of the writ of habeas corpus in that province
CHRISTIAN MONSOD and G.R. No. 190380 except for identified areas of the Moro Islamic Liberation Front.

CARLOS P. MEDINA, JR.,

Petitioners, Two days later or on December 6, 2009 President Arroyo submitted her report to
Congress in accordance with Section 18, Article VII of the 1987 Constitution which required her,
within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, to submit to that body a report in person or in writing of her action.
- versus -

In her report, President Arroyo said that she acted based on her finding that lawless
EDUARDO R. ERMITA, in his Promulgated: men have taken up arms in Maguindanao and risen against the government. The President
described the scope of the uprising, the nature, quantity, and quality of the rebels weaponry, the
capacity as Executive Secretary, movement of their heavily armed units in strategic positions, the closure of the Maguindanao
Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay Municipal Hall, and 14 other municipal
halls, and the use of armored vehicles, tanks, and patrol cars with unauthorized PNP/Police
Respondent. March 20, 2012
markings.

x ---------------------------------------------------------------------------------------- x
DECISION
On December 9, 2009 Congress, in joint session, convened pursuant to Section 18,
Article VII of the 1987 Constitution to review the validity of the Presidents action. But, two days
later or on December 12 before Congress could act, the President issued Presidential
Proclamation 1963, lifting martial law and restoring the privilege of the writ of habeas corpus in
Maguindanao.

ABAD, J.: Petitioners Philip Sigfrid A. Fortun and the other petitioners in G.R. 190293, 190294,
190301,190302, 190307, 190356, and 190380 brought the present actions to challenge the
constitutionality of President Arroyos Proclamation 1959 affecting Maguindanao. But, given the
prompt lifting of that proclamation before Congress could review it and before any serious
question affecting the rights and liberties of Maguindanaos inhabitants could arise, the Court
deems any review of its constitutionality the equivalent of beating a dead horse.
These cases concern the constitutionality of a presidential proclamation of martial law and
suspension of the privilege of habeas corpus in 2009 in a province in Mindanao which were
withdrawn after just eight days.
Prudence and respect for the co-equal departments of the government dictate that the Court
should be cautious in entertaining actions that assail the constitutionality of the acts of the
Executive or the Legislative department. The issue of constitutionality, said the Court in Biraogo
The Facts and the Case v. Philippine Truth Commission of 2010,[1] must be the very issue of the case, that the resolution
of such issue is unavoidable.

The issue of the constitutionality of Proclamation 1959 is not unavoidable for two reasons:
The essential background facts are not in dispute. On November 23, 2009 heavily armed men,
believed led by the ruling Ampatuan family, gunned down and buried under shoveled dirt 57
innocent civilians on a highway in Maguindanao. In response to this carnage, on November 24
President Arroyo issued Presidential Proclamation 1946, declaring a state of emergency in One. President Arroyo withdrew her proclamation of martial law and suspension of the privilege
Maguindanao, Sultan Kudarat, and Cotabato City to prevent and suppress similar lawless of the writ of habeas corpus before the joint houses of Congress could fulfill their automatic duty
violence in Central Mindanao.
to review and validate or invalidate the same. The pertinent provisions of Section 18, Article VII
of the 1987 Constitution state:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it,
he may, for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress,
if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without any need of a call.
xxxx
Although the above vests in the President the power to proclaim martial law or suspend the
privilege of the writ of habeas corpus, he shares such power with the Congress. Thus:
1. The Presidents proclamation or suspension is temporary, good for only
60 days;
2. He must, within 48 hours of the proclamation or suspension, report his
action in person or in writing to Congress;
3. Both houses of Congress, if not in session must jointly convene within 24
hours of the proclamation or suspension for the purpose of reviewing its
validity; and
4. The Congress, voting jointly, may revoke or affirm the Presidents
proclamation or suspension, allow their limited effectivity to lapse, or extend
the same if Congress deems warranted.
It is evident that under the 1987 Constitution the President and the Congress act in tandem in
exercising the power to proclaim martial law or suspend the privilege of the writ of habeas
corpus. They exercise the power, not only sequentially, but in a sense jointly since, after the
President has initiated the proclamation or the suspension, only the Congress can maintain the
same based on its own evaluation of the situation on the ground, a power that the President
does not have.
Consequently, although the Constitution reserves to the Supreme Court the power to review the
sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit
that the Court must allow Congress to exercise its own review powers, which is automatic rather
than initiated. Only when Congress defaults in its express duty to defend the Constitution
through such review should the Supreme Court step in as its final rampart. The constitutional
validity of the Presidents proclamation of martial law or suspension of the writ of habeas
corpus is first a political question in the hands of Congress before it becomes a justiciable one in
the hands of the Court.
Here, President Arroyo withdrew Proclamation 1959 before the joint houses of
Congress, which had in fact convened, could act on the same. Consequently, the petitions in
these cases have become moot and the Court has nothing to review. The lifting of martial law
and restoration of the privilege of the writ of habeas corpus in Maguindanao was a supervening
event that obliterated any justiciable controversy.[2]
Two. Since President Arroyo withdrew her proclamation of martial law and suspension of the
privilege of the writ of habeas corpus in just eight days, they have not been meaningfully
implemented. The military did not take over the operation and control of local government units
in Maguindanao. The President did not issue any law or decree affecting Maguindanao that
should ordinarily be enacted by Congress. No indiscriminate mass arrest had been
reported. Those who were arrested during the period were either released or promptly charged
in court. Indeed, no petition for habeas corpus had been filed with the Court respecting arrests
made in those eight days. The point is that the President intended by her action to address an
uprising in a relatively small and sparsely populated province. In her judgment, the rebellion was
localized and swiftly disintegrated in the face of a determined and amply armed government
presence.
In Lansang v. Garcia,[3] the Court received evidence in executive session to determine if
President Marcos suspension of the privilege of the writ of habeas corpus in 1971 had sufficient
factual basis. In Aquino, Jr. v. Enrile,[4] while the Court took judicial notice of the factual bases for
President Marcos proclamation of martial law in 1972, it still held hearings on the petitions
for habeas corpus to determine the constitutionality of the arrest and detention of the
petitioners. Here, however, the Court has not bothered to examine the evidence upon which
President Arroyo acted in issuing Proclamation 1959, precisely because it felt no need to, the
proclamation having been withdrawn within a few days of its issuance.
Justice Antonio T. Carpio points out in his dissenting opinion the finding of the Regional Trial
Court (RTC) of Quezon City that no probable cause exist that the accused before it committed
rebellion in Maguindanao since the prosecution failed to establish the elements of the crime. But
the Court cannot use such finding as basis for striking down the Presidents proclamation and
suspension. For, firstly, the Court did not delegate and could not delegate to the RTC of Quezon
City its power to determine the factual basis for the presidential proclamation and
suspension. Secondly, there is no showing that the RTC of Quezon City passed upon the same
evidence that the President, as Commander-in-Chief of the Armed Forces, had in her
possession when she issued the proclamation and suspension.
The Court does not resolve purely academic questions to satisfy scholarly interest,
however intellectually challenging these are.[5] This is especially true, said the Court in Philippine
Association of Colleges and Universities v. Secretary of Education,[6] where the issues reach
constitutional dimensions, for then there comes into play regard for the courts duty to avoid
decision of constitutional issues unless avoidance becomes evasion. The Courts duty is to steer
clear of declaring unconstitutional the acts of the Executive or the Legislative department, given
the assumption that it carefully studied those acts and found them consistent with the
fundamental law before taking them. To doubt is to sustain.[7]
If the Congress procrastinates or altogether fails to fulfill its duty respecting the
proclamation or suspension within the short time expected of it, then the Court can step in, hear
the petitions challenging the Presidents action, and ascertain if it has a factual basis. If the Court
finds none, then it can annul the proclamation or the suspension. But what if the 30 days given it
by the Constitution proves inadequate? Justice Carpio himself offers the answer in his dissent:
that 30-day period does not operate to divest this Court of its jurisdiction over the case. The
settled rule is that jurisdiction once acquired is not lost until the case has been terminated.
The problem in this case is that the President aborted the proclamation of martial law
and the suspension of the privilege of the writ of habeas corpus in Maguindanao in just eight
days. In a real sense, the proclamation and the suspension never took off. The Congress itself
adjourned without touching the matter, it having become moot and academic.

Notably, under Section 18, Article VII of the 1987 Constitution, the Court has only 30
days from the filing of an appropriate proceeding to review the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus. Thus
Of course, the Court has in exceptional cases passed upon issues that ordinarily
would have been regarded as moot. But the present cases do not present sufficient basis for the
exercise of the power of judicial review. The proclamation of martial law and the suspension of
the privilege of the writ of habeas corpus in this case, unlike similar Presidential acts in the late
60s and early 70s, appear more like saber-rattling than an actual deployment and arbitrary use
of political power.

The Supreme Court may review, in an appropriate proceeding filed by any

citizen, the sufficiency of the factual basis of the proclamation of martial law
or the suspension of the privilege of the writ of habeas corpus or the WHEREFORE, the Court DISMISSES the consolidated petitions on the ground that
extension thereof, and must promulgate its decision thereon within the same have become moot and academic.
thirty days from its filing. (Emphasis supplied)

SO ORDERED.
More than two years have passed since petitioners filed the present actions to annul
Proclamation 1959. When the Court did not decide it then, it actually opted for a default as was
its duty, the question having become moot and academic.

Justice Carpio of course points out that should the Court regard the powers of the
President and Congress respecting the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus as sequential or joint, it would be impossible for the Court
to exercise its power of review within the 30 days given it.

But those 30 days, fixed by the Constitution, should be enough for the Court to fulfill its
duty without pre-empting congressional action. Section 18, Article VII, requires the President to
report his actions to Congress, in person or in writing, within 48 hours of such proclamation or
suspension. In turn, the Congress is required to convene without need of a call within 24 hours
following the Presidents proclamation or suspension. Clearly, the Constitution calls for quick
action on the part of the Congress. Whatever form that action takes, therefore, should give the
Court sufficient time to fulfill its own mandate to review the factual basis of the proclamation or
suspension within 30 days of its issuance.

EN BANC
July 25, 2017
G.R. No. 231671
ALEXANDER A. PADILLA, RENE A.V. SAGUISAG, CHRISTIAN S. MONSOD, LORETTA
ANN P. ROSALES, RENE B. GOROSPE, and SENATOR LEILA M. DE LIMA, Petitioners
vs.
CONGRESS OF THE PHILIPPINES, consisting of the SENATE OF THE PHILIPPINES, as
represented by Senate President Aquilino "Koko" Pimentel III, and the HOUSE OF
REPRESENTATIVES, as represented by House Speaker Pantaleon D. Alvarez,
Respondents
x-----------------------x
G.R. No. 231694
FORMER SEN. WIGBERTO E. TANADA, BISHOP EMERITUS DEOGRACIAS S. INIGUEZ,
BISHOP BRODERICK PABILLO, BISHOP ANTONIO R. TOBIAS, MO. ADELAIDA
YGRUBAY, SHAMAH BULANGIS and CASSANDRA D. DELURIA, Petitioners,
vs.
CONGRESS OF THE PHILIPPINES, CONSISTING OF THE SENATE AND THE HOUSE OF
REPRESENTATIVES, AQUILINO "KOKO" PIMENTEL III, President, Senate of the
Philippines, and PANTALEON D. ALVAREZ, Speaker, House of the
Representatives, Respondents
DECISION
LEONARDO-DE CASTRO, J.:
These consolidated petitions under consideration essentially assail the failure and/or refusal of
respondent Congress of the Philippines (the Congress), composed of the Senate and the House
of Representatives, to convene in joint session and therein deliberate on Proclamation No. 216
issued on May 23, 201 7 by President Rodrigo Roa Duterte (President Duterte). Through
Proclamation No. 216, President Duterte declared a state of martial law and suspended the
privilege of the writ of habeas corpus in the whole of Mindanao for a period not e:xceeding sixty
(60) days effective from the date of the proclamation's issuance.
In the Petition for Mandamus of Alex.antler A. Padilla (Padilla), Rene A.V. Saguisag (Saguisag),
Christian S. Monsod (Monsod), Loretta Ann P. Rosales (Rosales), Rene B. Gorospe (Gorospe),
and Senator Leila M. De Lima (Senator De Lima), filed on June 6, 2017 and docketed as G.R.
No. 231671 (the Padilla Petition), petitioners seek a ruling from the Court directing the Congress
to convene in joint session to deliberate on Presidential Proclamation No. 216, and to vote
thereon.1
In the Petition for Certiorari and Mandamus of former Senator Wigberto E. Tanada (Tanada),
Bishop Emeritus Deogracias Iniguez (Bishop Iniguez), Bishop Broderick Pabillo (Bishop Pabillo
), Bishop Antonio Tobias (Bishop Tobias), Mo. Adelaida Ygrubay (Mo. Y grubay), Shamah
Bulangis (Bulangis), and Cassandra D. Deluria (Deluria), filed on June 7, 2017 and docketed as
G.R. No. 231694 (the Tañada Petition), petitioners entreat the Court to: (a) declare the refusal of
the Congress to convene in joint session for the purpose of considering Proclamation No. 216 to
be in grave abuse of discretion amounting to a lack or excess of jurisdiction; and (b) issue a writ
of mandamus directing the Congress to convene in joint session for the aforementioned
purpose.2
Respondent Congress, represented by the Office of the Solicitor General (OSG), filed
its Consolidated Comment on June 27, 2017. Respondents Senate of the Philippines and
Senate President Aquilino "Koko" Pimentel III (Senate President Pimentel), through the Office of
the Senate Legal Counsel, separately filed their Consolidated Comment (Ex Abudanti
Cautela) on June 29, 2017.
ANTECEDENT FACTS
On May 23, 2017, President Duterte issued Proclamation No. 216, declaring a state of martial
law and suspending the privilege of the writ of habeas corpus in the Mindanao group of islands
on the grounds of rebellion and necessity of public safety pursuant to Article VII, Section 18 of
the 1987 Constitution.
Within forty-eight (48) hours after the proclamation, or on May 25, 2017, and while the Congress
was in session, President Duterte transmitted his "Report relative to Proclamation No. 216 dated
23 May 2017" (Report) to the Senate, through Senate President Pimentel, and the House of
Representatives, through House Speaker Pantaleon D. Alvarez (House Speaker Alvarez).
According to President Duterte's Proclamation No. 216 and his Report to the Congress, the
declaration of a state of martial law and the suspension of the privilege of the writ of habeas
corpus in the whole of Mindanao ensued from the series of armed attacks, violent acts, and
atrocities directed against civilians and government authorities, institutions, and establishments
perpetrated by the Abu Sayyaf and Maute terrorist groups, in complicity with other local and
foreign armed affiliates, who have pledged allegiance to the Islamic State of Iraq and Syria
(ISIS), to sow lawless violence, terror, and political disorder over the said region for the ultimate
purpose of establishing a DAESH wilayah or Islamic Province in Mindanao.
Representatives from the Executive Department, the military, and other security officials of the
government were thereafter invited, on separate occasions, by the Senate and the House of
Representatives for a conference briefing regarding the circumstances, details, and updates
surrounding the President's proclamation and report.
On May 29, 2017, the briefing before the Senate was conducted, which lasted for about four (4)
hours, by Secretary of National Defense Delfin N. Lorenza (Secretary Lorenzana), National
Security Adviser and Director General of the National Security Council Hermogenes C. Esperon,
Jr. (Secretary Esperon), and Chief of Staff of the Armed Forces of the Philippines (AFP) General
Eduardo M. Afio (General Año). The following day, May 30, 2017, the Senate deliberated on
these proposed resolutions: (a) Proposed Senate (P.S.) Resolution No. 388,3 which expressed
support for President Duterte's Proclamation No. 216; and (b) P.S. Resolution No. 390, 4 which
called for the convening in joint session of the Senate and the House of Representatives to
deliberate on President Duterte's Proclamation No. 216.
P.S. Resolution No. 388 was approved, after receiving seventeen (17) affirmative votes as
against five (5) negative votes, and was adopted as Senate Resolution No.
495 entitled "Resolution Expressing the Sense of the Senate Not to Revoke, at this Time,
Proclamation No. 216, Series of 2017, Entitled 'Declaring a State of Martial Law and Suspending
the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao.’"6
P.S. Resolution No. 390, on the other hand, garnered only nine (9) votes from the senators who
were in favor of it as opposed to twelve (12) votes from the senators who were against its
approval and adoption.7
On May 31, 201 7, the House of Representatives, having previously constituted itself as a
Committee of the Whole House,8 was briefed by Executive Secretary Salvador C. Medialdea
(Executive Secretary Medialdea), Secretary Lorenzana, and other security officials for about six
(6) hours. After the closed-door briefing, the House of Representatives resumed its regular
meeting and deliberated on House Resolution No. 1050 entitled "Resolution Expressing the Full
Support of the House of Representatives to President Rodrigo Duterte as it Finds No Reason to
Revoke Proclamation No. 216, Entitled 'Declaring a State of Martial Law and Suspending the
Privilege of the Writ of Habeas Corpus in the Whole of Mindanao.'"9 The House of
Representatives proceeded to divide its members on the matter of approving said resolution
through viva voce voting. The result shows that the members who were in favor of passing the
subject resolution secured the majority vote.10
The House of Representatives also purportedly discussed the proposal calling for a joint session
of the Congress to deliberate and vote on President Duterte's Proclamation No. 216. After the
debates, however, the proposal was rejected.11
These series of events led to the filing of the present consolidated petitions.
THE PARTIES' ARGUMENTS
The Padilla Petition
Petitioners in G.R. No. 231671 raise the question of "[w]hether Congress is required to convene
in joint session, deliberate, and vote jointly under Article VII, [Section] 18 of the Constitution" and
submit the following arguments in support of their petition:
[I] THE PETITION SATISFIES THE REQUISITES FOR THE EXERCISE OF THE HONORABLE
COURT'S POWER OF JUDICIAL REVIEW.
[i] THERE IS AN ACTUAL CASE OR CONTROVERSY.
[ii] PETITIONERS, AS PART OF THE PUBLIC AND AS TAXPAYERS, POSSESS LEGAL
STANDING TO FILE THIS PETITION.
[iii] PETITIONER [DE LIMA], AS MEMBER OF CONGRESS, HAS LEGAL STANDING TO FILE
THIS PETITION.
[iv] THE CASE AND THE ISSUE INVOLVED ARE RIPE FOR JUDICIAL DETERMINATION.
[II] THE PLAIN TEXT OF THE CONSTITUTION, SUPPORTED BY THE EXPRESS INTENT OF
THE FRAMERS, AND CONFIRMED BY THE SUPREME COURT, REQUIRES THAT
CONGRESS CONVENE IN JOINT SESSION TO DELIBERATE AND VOTE AS A SINGLE
DELIBERATIVE BODY.
[i] THE PLAIN TEXT OF THE CONSTITUTION REQUIRES THAT CONGRESS CONVENE IN
JOINT SESSION.
[ii] THE EXPRESS INTENT OF THE FRAMERS IS FOR CONGRESS TO CONVENE IN JOINT
SESSION TO DELIBERATE AND VOTE AS A SINGLE DELIBERATIVE BODY.
[iii] THE SUPREME COURT CONFIRMED IN FORTUN v. GMA THAT CONGRESS HAS THE
"AUTOMATIC DUTY" TO CONVENE IN JOINT SESSION.
[iv] LEGISLATIVE PRECEDENT ALSO RECOGNIZES CONGRESS' DUTY TO CONVENE IN
JOINT SESSION.
[III] THE REQUIREMENT TO ACT AS A SINGLE DELIBERATIVE BODY UNDER ARTICLE VII,
[SECTION] 18 OF THE CONSTITUTION IS A MANDATORY, MINISTERIAL
CONSTITUTIONAL DUTY OF CONGRESS, WHICH CAN BE COMPELLED BY MANDAMUS.12
Petitioners claim that there is an actual case or controversy in this instance and that their case is
ripe for adjudication. According to petitioners, the resolutions separately passed by the Senate
and the House of Representatives, which express support as well as the intent not to revoke
President Duterte's Proclamation No. 216, injure their rights "to a proper [and] mandatory
legislative review of the declaration of martial law" and that the continuing failure of the
Congress to convene in joint session similarly causes a continuing injury to their rights. 13
Petitioners also allege that, as citizens and taxpayers, they all have locus standi in their
"assertion of a public right" which they have been deprived of when the Congress refused and/or
failed to convene in joint session to deliberate on President Duterte's Proclamation No. 216.
Senator De Lima adds that she, together with the other senators who voted in favor of the
resolution to convene the Congress jointly, were even effectively denied the opportunity to
perform their constitutionally-mandated duty, under Article VII, Section 18 of the Constitution, to
deliberate on the said proclamation of the President in a joint session of the Congress. 14
On the propriety of resorting to the remedy of mandamus, petitioners posit that ''the duty of
Congress to convene in joint session upon the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus does not require the exercise of discretion." Such
mandate upon the Congress is allegedly a purely ministerial act which can be compelled through
a writ of mandamus.15
As for the substantive issue, it is the primary contention of petitioners that a plain reading of
Article VII, Section 18 of the Constitution shows that the Congress is required to convene in joint
session to review Proclamation No. 216 and vote as a single deliberative body. The performance
of the constitutional obligation is allegedly mandatory, not discretionary. 16
According to petitioners, the discretionary nature of the phrase "may revoke such proclamation
or suspension" under Article VII, Section 18 of the Constitution allegedly pertain to the power of
the Congress to revoke but not to its obligation to jointly convene and vote - which, they stress,
is mandatory. To require the Congress to convene only when it exercises the power to revoke is
purportedly absurd since the Congress, without convening in joint session, cannot know
beforehand whether a majority vote in fact exists to effect a revocation.17
Petitioners claim that in Fortun v. Macapagal-Arroyo,18 this Court described the "duty" of the
Congress to convene in joint session as "automatic." The convening of the Congress in joint
session when former President Gloria Macapagal-Arroyo (President Macapagal-Arroyo)
declared martial law and suspended the privilege of the writ of habeas corpus in Maguindanao
was also a legislative precedent where the Congress clearly recognized its duty to convene in
joint session.19
The mandate upon the Congress to convene jointly is allegedly intended by the 1986
Constitutional Commission (ConCom) to serve as a protection against potential abuses in the
exercise of the President's power to declare martial law and suspend the privilege of the writ
of habeas corpus. It is "a mechanism purposely designed by the Constitution to compel
Congress to review the propriety of the President's action x x x [and] meant to contain martial
law powers within a democratic framework for the preservation of democracy, prevention of
abuses, and protection of the people."20
The Tañada Petition
The petitioners in G.R. No. 231694 chiefly opine that:
I. A PLAIN READING OF THE 1987 CONSTITUTION LEADS TO THE INDUBITABLE
CONCLUSION THAT A JOINT SESSION OF CONGRESS TO REVIEW A DECLARATION OF
MARTIAL LAW BY THE PRESIDENT IS MANDATORY.
II. FAIL URE TO CONVENE A JOINT SESSION DEPRIVES LAWMAKERS OF A
DELIBERATIVE AND INTERROGATORY PROCESS TO REVIEW MARTIAL LAW.
III. FAIL URE TO CONVENE A JOINT SESSION DEPRIVES THE PUBLIC OF TRANSPARENT
PROCEEDINGS WITHIN WHICH TO BE INFORMED OF THE FACTUAL BASES OF MARTIAL
LAW AND THE INTENDED PARAMETERS OF ITS IMPLEMENTATION.
IV. THE FRAMERS OF THE CONSTITUTION INTENDED THAT A JOINT SESSION OF
CONGRESS BE CONVENED IMMEDIATELY AFTER THE DECLARATION OF MARTIAL
LAW.21
Similar to the contentions in the Padilla Petition, petitioners maintain that they have sufficiently
shown all the essential requisites in order for this Court to exercise its power of judicial review, in
that: (1) an actual case or controversy exists; (2) they possess the standing to file this case; (3)
the constitutionality of a governmental act has been raised at the earliest possible opportunity;
and (4) the constitutionality of the said act is the very lis mota of the petition.
According to petitioners, there is an actual case or controversy because the failure and/or refusal
of the Congress to convene jointly deprived legislators of a venue within which to raise a motion
for revocation (or even extension) of President Duterte's Proclamation No. 216 and the public of
an opportunity to be properly informed as to the bases and particulars thereof. 22
Petitioners likewise claim to have legal standing to sue as citizens and taxpayers. Nonetheless,
they submit that the present case calls for the Court's liberality in the appreciation of their locus
standi given the fact that their petition presents "a question of first impression - one of
paramount importance to the future of our democracy - as well as the extraordinary nature of
Martial Law itself."23
Petitioners contend that the convening of the Congress in joint session, whenever the President
declares martial law or suspends the privilege of the writ of habeas corpus, is a public right and
duty mandated by the Constitution. The writ of mandamus is, thus, the "proper recourse for
citizens who seek to enforce a public right and to compel the performance of a public duty,
especially when the public right involved is mandated by the Constitution."24
For this group of petitioners, the Members of the Congress gravely abused their discretion for
their refusal to convene in joint session, underscoring that "[w]hile a writ of mandamus will not
generally lie from one branch of the government to a coordinate branch, or to compel the
performance of a discretionary act, this admits of certain exceptions, such as in instances of
gross abuse of discretion, manifest injustice, or palpable excess of authority, when there is no
other plain, speedy and adequate remedy."25
As to the merits, petitioners assert that the convening of the Congress in joint session after the
declaration of martial law is mandatory under Article VII, Section 18 of the Constitution, whether
or not the Congress is in session or there is intent to revoke. It is their theory that a joint session
should be a deliberative process in which, after debate and discussion, legislators can come to
an informed decision as to the factual and legal bases for the declaration of martial law.
Moreover, "legislators who wish to revoke the martial law proclamation should have the right to
put that vote on historical record in joint session - and, in like manner, the public should have the
right to know the position of their legislators with respect to this matter of the highest national
interest."26
Petitioners add that a public, transparent, and deliberative process is purportedly necessary to
allay the people's fears against "executive overreach." This concern allegedly cannot be
addressed by briefings in executive sessions given by representatives of the Executive Branch
to both Houses of the Congress.27
Petitioners further postulate that, based on the deliberations of the Members of the ConCom, the
phrase "voting jointly" under Article VII, Section 18 was intended to mean that a joint session is a
procedural requirement, necessary for the Congress to decide whether to revoke, affirm, or even
extend the declaration of martial law.28
Consolidation of Respondents' Comments
Respondents assert firmly that there is no mandatory duty on their part to "vote jointly," except in
cases of revocation or extension of the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus.29 In the absence of such duty, the non-convening of the
Congress in joint session does not pose any actual case or controversy that may be the subject
of judicial review.30 Additionally, respondents argue that the petitions raise a political question
over which the Court has no jurisdiction.
Petitioners' avowal that they are citizens and taxpayers is allegedly inadequate to clothe them
with locus standi. Generalized interests, albeit accompanied by the assertion of a public right, do
not establish locus standi. Petitioners must show that they have a direct and personal interest in
the Congress' failure to convene in joint session, which they failed to present herein. A
taxpayer's suit is likewise proper only when there is an exercise of the spending or taxing power
of the Congress. However, in these cases, the funds used in the implementation of martial law in
Mindanao are taken from those funds already appropriated by the Congress. Senator De Lima's
averment of her locus standi as an incumbent member of the legislature similarly lacks merit.
Insofar as the powers of the Congress are not impaired, there is no prejudice to each Member
thereof; and even assuming arguendo that the authority of the Congress is indeed compromised,
Senator De Lima still does not have standing to file the present petition for mandamus because
it is not shown that she has been allowed to participate in the Senate sessions during her
incarceration. She cannot, therefore, claim that she has suffered any direct injury from the non-
convening of the Congress in joint session.31
Respondents further contend that the constitutional right to information, as enshrined under
Article III, Section 7 of the Constitution, is not absolute. Matters affecting national security are
considered as a valid exception to the right to information of the public. For this reason, the
petitioners' and the public's right to participate in the deliberations of the Congress regarding the
factual basis of a martial law declaration may be restricted in the interest of national security and
public safety.32
Respondents allege that petitioners failed to present an appropriate case for mandamus to
lie. Mandamus will only issue when the act to be compelled is a clear legal duty or a ministerial
duty imposed by law upon the defendant or respondent to perform the act required that the law
specifically enjoins as a duty resulting from office, trust, or station. 33
According to respondents, it is erroneous to assert that it is their ministerial duty to convene in
joint session whenever martial law is proclaimed or the privilege of the writ of habeas corpus is
suspended in the absence of a clear and specific constitutional or legal provision. In fact, Article
VII, Section 18 does not use the words ''joint session" at all, much less impose the convening of
such joint session upon the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus. What the Constitution requires is joint voting when the action of the
Congress is to revoke or extend the proclamation or suspension. 34
Indeed, prior concurrence of the Congress is not constitutionally required for the effectivity of the
proclamation or suspension. Quoting from the deliberations of the framers of the Constitution
pertaining to Article VII, Section 18, the Congress points out that it was the intention of the said
framers to grant the President the power to declare martial law or suspend the privilege of the
writ of habeas corpus for a period not exceeding sixty (60) days without the concurrence of the
Congress. There is absolutely nothing under the Constitution that mandates the Congress to
convene in joint session when their intention is merely to discuss, debate, and/or review the
factual and legal basis for the proclamation. That is why the phrase "voting jointly" is limited only
in case the Congress intends to revoke the proclamation.35 In a situation where the Congress is
not in session, the Constitution simply provides that the Congress must convene in accordance
with its rules but does not state that it must convene in joint session. Respondents further refer
to the proper procedure for the holding of joint sessions.
Respondents brush aside as mere obiter dictum the Court's pronouncement in the Fortun case
that it is the duty of the Congress to convene upon the declaration of martial law. That whether
or not the Congress should convene in joint session in instances where it is not revoking the
proclamation was not an issue in that case. Moreover, the factual circumstances in
the Fortun case are entirely different from the present cases. The Congress then issued a
concurrent resolution calling for the convening of a joint session as the intention - at least as far
as the Senate was concerned - was to revoke the proclamation of martial law and the
suspension of the privilege of the writ of habeas corpus in Maguindanao. The Fortun case then
cannot be considered a legislative precedent of an "automatic convening of a joint session by
the Congress upon the President's proclamation of martial law."36
Respondents argue that the remedy of certiorari is likewise unavailing. To justify judicial
intervention, the abuse of discretion must be so patent and gross as to amount to an evasion of
a positive duty or to a virtual refusal to perform a duty enjoined by law or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion or hostility.37 The Congress has the duty to convene and vote jointly only in
two (2) instances, as respondents have already explained. The Congress had even issued their
respective resolutions expressing their support to, as well as their intent not to revoke, President
Duterte's Proclamation No. 216. There then can be no evasion of a positive duty or a virtual
refusal to perform a duty on the part of the Congress if there is no duty to begin with.38
Respondents respectfully remind the Court to uphold the "constitutional demarcation of the three
fundamental powers of government."39 The Court may not intervene in the internal affairs of the
Legislature and it is not within the province of the courts to direct the Congress how to do its
work. Respondents stress that this Court cannot direct the Congress to convene in joint session
without violating the basic principle of the separation of powers. 40
Subsequent Events
On July 14, 2017, petitioners in G.R. No. 231671, the Padilla Petition, filed a Manifestation,
calling the attention of the Court to the imminent expiration of the sixty (60)-day period of validity
of Proclamation No. 216 on July 22, 2017. Despite the lapse of said sixty (60)-day period,
petitioners exhort the Court to still resolve the instant cases for the guidance of the Congress,
State actors, and all Filipinos.
On July 22, 2017, the Congress convened in joint session and, with two hundred sixty-one (261)
votes in favor versus eighteen (18) votes against, overwhelmingly approved the extension of the
proclamation of martial law and the suspension of the privilege of the writ of habeas corpus in
Mindanao until December 31, 2017.
STATEMENT OF THE ISSUES
After a meticulous consideration of the parties' submissions, we synthesize them into the
following fundamental issues:
I. Whether or not the Court has jurisdiction over the subject matter of these consolidated
petitions;
II. Whether or not the petitions satisfy the requisites for the Court's exercise of its power of
judicial review;
III. Whether or not the Congress has the mandatory duty to convene jointly upon the President's
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus under
Article VII, Section 18 of the 1987 Constitution; and
IV. Whether or not a writ of mandamus or certiorari may be issued in the present cases.
THE COURT'S RULING
The Court's jurisdiction over these
consolidated petitions
The principle of separation of powers
The separation of powers doctrine is the backbone of our tripartite system of government. It is
implicit in the manner that our Constitution lays out in separate and distinct Articles the powers
and prerogatives of each co-equal branch of government. In Belgica v. Ochoa,41 this Court had
the opportunity to restate:
The principle of separation of powers refers to the constitutional demarcation of the three
fundamental powers of government. In the celebrated words of Justice Laurel in Angara v.
Electoral Commission, it means that the "Constitution has blocked out with deft strokes and in
bold lines, allotment of power to the executive, the legislative and the judicial departments of the
government." To the legislative branch of government, through Congress, belongs the power to
make laws; to the executive branch of government, through the President, belongs the power to
enforce laws; and to the judicial branch of government, through the Court, belongs the power to
interpret laws. Because the three great powers have been, by constitutional design, ordained in
this respect, "[ e ]ach department of the government has exclusive cognizance of matters within
its jurisdiction, and is supreme within its own sphere." Thus, "the legislature has no authority to
execute or construe the law, the executive has no authority to make or construe the law, and the
judiciary has no power to make or execute the law." The principle of separation of powers and its
concepts of autonomy and independence stem from the notion that the powers of government
must be divided to avoid concentration of these powers in any one branch; the division, it is
hoped, would avoid any single branch from lording its power over the other branches or the
citizenry. To achieve this purpose, the divided power must be wielded by co-equal branches of
government that are equally capable of independent action in exercising their respective
mandates. Lack of independence would result in the inability of one branch of government to
check the arbitrary or self-interest assertions of another or others. (Emphases supplied, citations
omitted.)
Contrary to respondents' protestations, the Court's exercise of jurisdiction over these petitions
cannot be deemed as an unwarranted intrusion into the exclusive domain of the Legislature.
Bearing in mind that the principal substantive issue presented in the cases at bar is the proper
interpretation of Article VII, Section 18 of the 1987 Constitution, particularly regarding the duty of
the Congress to vote jointly when the President declares martial law and/or suspends the
privilege of the writ of habeas corpus, there can be no doubt that the Court may take jurisdiction
over the petitions. It is the prerogative of the Judiciary to declare "what the law is." 42 It is worth
repeating here that:
[W]hen the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution
to determine conflicting claims of authority under the Constitution and to establish for the parties
in an actual controversy the rights which that instrument secures and guarantees to
them.43 (Emphases supplied.)
Political question doctrine
Corollary to respondents' invocation of the principle of separation of powers, they argue that
these petitions involve a political question in which the Court may not interfere. It is true that the
Court continues to recognize questions of policy as a bar to its exercise of the power of judicial
review.44 However, in a long line of cases,45 we have given a limited application to the political
question doctrine.
In The Diocese of Bacolod v. Commission on Elections,46 we emphasized that the Court's
judicial power as conferred by the Constitution has been expanded to include "the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." Further, in past cases, the Court has exercised its power of judicial review noting
that the requirement of interpreting the constitutional provision involved the legality and not
the wisdom of a manner by which a constitutional duty or power was exercised.47
In Association of Medical Clinics for Overseas Workers, Inc. (AMCOW) v. GCC Approved
Medical Centers Association, Inc.,48 we explained the rationale behind the Court's
expanded certiorari jurisdiction. Citing former Chief Justice and Constitutional Commissioner
Roberto R. Concepcion in his sponsorship speech for Article VIII, Section 1 of the Constitution,
we reiterated that the courts cannot hereafter evade the duty to settle matters, by claiming that
such matters constitute a political question.
Existence of the requisites for judicial review
Petitioners' legal standing
Petitioners in G.R. No. 231671 allege that they are suing in the following capacities: (1) Padilla
as a member of the legal profession representing victims of human rights violations, and a
taxpayer; (2) Saguisag as a human rights lawyer, former member of the Philippine Senate, and a
taxpayer; (3) Monsod as a framer of the Philippine Constitution and member of the 1986 Con
Com, and a taxpayer; (4) Rosales as a victim of human rights violations committed under martial
law declared by then President Ferdinand E. Marcos, and a taxpayer; (5) Gorospe as a lawyer
and a taxpayer; and (6) Senator De Lima as an incumbent Member of the Philippine Senate, a
human rights advocate, a former Secretary of Justice, Chairperson of the Commission on
Human Rights, and a taxpayer.
On the other hand, in G.R. No. 231694, while petitioner Tañada sues in his capacity as a Filipino
citizen and former legislator, his co-petitioners (Bishop Iniguez, Bishop Pabillo, Bishop Tobias,
Mo. Ygrubay, Bulangis, and Deluria) all sue in their capacity as Filipino citizens.
Respondents insist that none of the petitioners have legal standing, whether as a citizen,
taxpayer, or legislator, to file the present cases.1avvphi1
The Court has consistently held that locus standi is a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury as a result of the challenged
governmental act. The question is whether the challenging party alleges such personal stake in
the outcome of the controversy so as to assure the existence of concrete adverseness that
would sharpen the presentation of issues and illuminate the court in ruling on the constitutional
question posed.49
Petitioners satisfy these standards.
The Court has recognized that every citizen has the right, if not the duty, to interfere and see that
a public offense be properly pursued and punished, and that a public grievance be
remedied.50 When a citizen exercises this "public right" and challenges a supposedly illegal or
unconstitutional executive or legislative action, he represents the public at large, thus, clothing
him with the requisite locus standi. He may not sustain an injury as direct and adverse as
compared to others but it is enough that he sufficiently demonstrates in his petition that he is
entitled to protection or relief from the Court in the vindication of a public right. 51
Verily, legal standing is grounded on the petitioner's personal interest in the controversy. A
citizen who files a petition before the court asserting a public right satisfies the requirement of
personal interest simply because the petitioner is a member of the general public upon which the
right is vested.52 A citizen's personal interest in a case challenging an allegedly unconstitutional
act lies in his interest and duty to uphold and ensure the proper execution of the law. 53
The present petitions have been filed by individuals asserting that the Senate and the House of
Representatives have breached an allegedly constitutional duty to convene in joint session to
deliberate on Presidential Proclamation No. 216. The citizen-petitioners' challenge of a
purportedly unconstitutional act in violation of a public right, done in behalf of the general public,
gives them legal standing.
On the other hand, Senator De Lima questions the Congress' failure to convene in joint session
to deliberate on Proclamation No. 216, which, according to the petitioners, is the legislature's
constitutional duty.
We have ruled that legislators have legal standing to ensure that the constitutional prerogatives,
powers, and privileges of the Members of the Congress remain inviolate. 54 Thus, they are
allowed to question the validity of any official action - or in these cases, inaction - which, to their
mind, infringes on their prerogatives as legislators.55
Actual case or controversy
It is long established that the power of judicial review is limited to actual cases or controversies.
There is an actual case or controversy where there is a conflict of legal rights, an assertion of
opposite legal claims, where the contradiction of the rights can be interpreted and enforced on
the basis of existing law and jurisprudence.56
There are two conflicting claims presented before the Court: on the one hand, the petitioners'
assertion that the Congress has the mandatory duty to convene in joint session to deliberate on
Proclamation No. 216; and, on the other, the respondents' view that so convening in joint
session is discretionary on the part of the Congress.
Petitioners seek relief through a writ of mandamus and/or certiorari. Mandamus is a remedy
granted by law when any tribunal, corporation, board, officer, or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust,
or station, or unlawfully excludes another from the use or enjoyment of a right or office to which
such other is entitled.57 Certiorari, as a special civil action, is available only if: (1) it is directed
against a tribunal, board, or officer exercising judicial or quasi-judicial functions; (2) the tribunal,
board, or officer acted without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction; and (3) there is no appeal nor any plain, speedy, and
adequate remedy in the ordinary course of law.58 With respect to the Court, however, certiorari is
broader in scope and reach, and it may be issued to correct errors of jurisdiction committed not
only by a tribunal, corporation, board, or officer exercising judicial, quasi-judicial, or ministerial
functions, but also to set right, undo, and restrain any act of grave abuse of discretion amounting
to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the
latter does not exercise judicial, quasi-judicial or ministerial functions.59
As the present petitions allege an omission on the part of the Congress that constitutes neglect
of their constitutional duties, the petitions make a prima facie case for mandamus, and an actual
case or controversy ripe for adjudication exists. When an act or omission of a branch of
government is seriously alleged to have infringed the Constitution, it becomes not only the right
but, in fact, the duty of the judiciary to settle the dispute.60
Respondents aver that the Congress cannot be compelled to do something that is discretionary
on their part nor could they be guilty of grave abuse of discretion in the absence of any
mandatory obligation to jointly convene on their part to affirm the President's proclamation of
martial law. Thus, petitioners are not entitled to the reliefs prayed for in their petitions
for mandamus and/or certiorari; consequently, no actual case or controversy exists.
There is no merit to respondents' position.
For the Court to exercise its power of judicial review and give due course to the petitions, it is
sufficient that the petitioners set forth their material allegations to make out a prima facie case
for mandamus or certiorari.61 Whether the petitioners are actually and ultimately entitled to the
reliefs prayed for is exactly what is to be determined by the Court after careful consideration of
the parties' pleadings and submissions.
Liberality in cases of transcendental importance
In any case, it is an accepted doctrine that the Court may brush aside procedural technicalities
and, nonetheless, exercise its power of judicial review in cases of transcendental importance.
There are marked differences between the Chief Executive's military powers, including the
power to declare martial law, as provided under the present Constitution, in comparison to that
granted in the 1935 Constitution. Under the 1935 Constitution, 62 such powers were seemingly
limitless, unrestrained, and purely subject to the President's wisdom and discretion.
At present, the Commander-in-Chief still possesses the power to suspend the privilege of the
writ of habeas corpus and to proclaim martial law. However, these executive powers are now
subject to the review of both the legislative and judicial branches. This check-and-balance
mechanism was installed in the 1987 Constitution precisely to prevent potential abuses of these
executive prerogatives.
Inasmuch as the present petitions raise issues concerning the Congress' role in our
government's system of checks and balances, these are matters of paramount public interest or
issues of transcendental importance deserving the attention of the Court in view of their
seriousness, novelty, and weight as precedents.63
Mootness
The Court acknowledges that the main relief prayed for in the present petitions (i.e., that the
Congress be directed to convene in joint session and therein deliberate whether to affirm or
revoke Proclamation No. 216) may arguably have been rendered moot by: (a) the lapse of the
original sixty (60) days that the President's martial law declaration and suspension of the
privilege of the writ of habeas corpus were effective under Proclamation No. 216; (b) the
subsequent extension by the Congress of the proclamation of martial law and the suspension of
the privilege of the writ of habeas corpus over the whole of Mindanao after convening in joint
session on July 22, 2017; and (c) the Court's own decision in Lagman v. Medialdea,64 wherein
we ruled on the sufficiency of the factual bases for Proclamation No. 216 under the original
period stated therein.
In David v. Macapagal-Arroyo, the jurisprudential rules regarding mootness were succinctly
summarized, thus:
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.
xxxx
The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when constitutional issue raised requires formulation
of controlling principles to guide the bench, the bar, and the public; and fourth, the case is
capable of repetition yet evading review.65 (Emphasis supplied, citations omitted.)
It cannot be gainsaid that there are compelling and weighty reasons for the Court to proceed
with the resolution of these consolidated petitions on the merits. As explained in the preceding
discussion, these cases involve a constitutional issue of transcendental significance and novelty.
A definitive ruling from this Court is imperative not only to guide the Bench, the Bar, and the
public but, more importantly, to clarify the parameters of congressional conduct required by the
1987 Constitution, in the event of a repetition of the factual precedents that gave rise to these
cases.
The duty of the Congress to vote jointly
under Article VII, Section 18
We now come to the crux of the present petitions - the issue of whether or not under Article VII,
Section 18 of the 1987 Constitution, it is mandatory for the Congress to automatically convene in
joint session in the event that the President proclaims a state of martial law and/or suspends the
privilege of the writ of habeas corpus in the Philippines or any part thereof.
The Court answers in the negative. The Congress is not constitutionally mandated to convene in
joint session except to vote jointly to revoke the President's declaration or suspension.
By the language of Article VII, Section 18
of the 1987 Constitution, the Congress is
only required to vote jointly to revoke the
President's proclamation of martial law
and/or suspension of the privilege of the writ
of habeas corpus.
Article VII, Section 18 of the 1987 Constitution fully reads:
Sec. 18. The President shall be the Commander-in-Chief of allarmed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension which revocation shall not be set
aside by the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency
of the factual basis of the proclamation of martial law or the suspension of the privilege of the
writ or the extension thereof, and must promulgate its decision thereon within thirty days from its
filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released. (Emphasis supplied.)
Outside explicit constitutional limitations, the Commander-in-Chief clause in Article VII, Section
18 of the 1987 Constitution vests on the President, as Commander-in-Chief, absolute authority
over the persons and actions of the members of the armed forces, 66 in recognition that the
President, as Chief Executive, has the general responsibility to promote public peace, and as
Commander-in-Chief, the more specific duty to prevent and suppress rebellion and lawless
violence.67 However, to safeguard against possible abuse by the President of the exercise of his
power to proclaim martial law and/or suspend the privilege of the writ of habeas corpus, the
1987 Constitution, through the same provision, institutionalized checks and balances on the
President's power through the two other co-equal and independent branches of
government, i.e., the Congress and the Judiciary. In particular, Article VII, Section 18 of the 1987
Constitution requires the President to submit a report to the Congress after his proclamation of
martial law and/or suspension of the privilege of the writ of habeas corpus and grants the
Congress the power to revoke, as well as extend, the proclamation and/or suspension; and
vests upon the Judiciary the power to review the sufficiency of the factual basis for such
proclamation and/or suspension.
There are four provisions in Article VII, Section 18 of the 1987 Constitution specifically pertaining
to the role of the Congress when the President proclaims martial law and/or suspends the
privilege of the writ of habeas corpus, viz.:
a. Within forty-eight (48) hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in writing
to the Congress;
b. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which revocation shall not be set
aside by the President;
c. Upon the initiative of the_ President, the Congress may, in the same manner. extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist; and
d. The Congress, if not in session, shall within twenty-four hours (24) following such
proclamation or suspension, convene in accordance with its rules without need of call.
There is no question herein that the first provision was complied with, as within forty-eight (48)
hours from the issuance on May 23, 2017 by President Duterte of Proclamation No. 216,
declaring a state of martial law and suspending the privilege of the writ of habeas corpus in
Mindanao, copies of President Duterte's Report relative to Proclamation No. 216 was
transmitted to and received by the Senate and the House of Representatives on May 25, 2017.
The Court will not touch upon the third and fourth provisions as these concern factual
circumstances which are not availing in the instant petitions. The petitions at bar involve the
initial proclamation of martial law and suspension of the privilege of the writ of habeas
corpus, and not their extension; and the 17th Congress was still in session68 when President
Duterte issued Proclamation No. 216 on May 23, 2017.
It is the second provision that is under judicial scrutiny herein: "The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the President."
A cardinal rule in statutory construction is that when the law is clear and free from any doubt or
ambiguity, there is no room for construction or interpretation. There is only room for application.
According to the plain-meaning rule or verba legis, when the statute is clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without attempted interpretation. It is
expressed in the maxims index animi sermo or "speech is the index of intention[,]" and verba
legis non est recedendum or "from the words of a statute there should be no departure." 69
In Funa v. Chairman Villar,70 the Court also applied the verba legis rule in constitutional
construction, thus:
The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it
must he given its literal meaning and applied without attempted interpretation. This is known as
the plain meaning rule enunciated by the maxim verba legis non est recedendum, or from the
words of a statute there should be no departure.
The primary source whence to ascertain constitutional intent or purpose is the language of the
provision itself. If possible, the words in the Constitution must be given their ordinary meaning,
save where technical terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure
Administration illustrates the verbal legis rule in this wise:
We look to the language of the document itself in our search for its meaning. We do not of
course stop there, but that is where we begin. It is to he assumed that the words in which
constitutional provisions arc couched express the objective sought to be attained. They are to be
given their ordinary meaning except where technical terms are employed in which case the
significance thus attached to them prevails. As the Constitution is not primarily a lawyer's
document, it being essential for the rule of law to obtain that it should ever be present in the
people's consciousness, its language as much as possible should be understood in the sense
they have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it. based on the postulate that
the framers and the people mean what they say. Thus there are cases where the need for
construction is reduced to a minimum. (Emphases supplied.)
The provision in question is clear, plain, and unambiguous. In its literal and ordinary meaning,
the provision grants the Congress the power to revoke the President's proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus and prescribes how the
Congress may exercise such power, i.e., by a vote of at least a majority of all its Members,
voting jointly, in a regular or special session. The use of the word "may" in the provision - such
that "[t]he Congress x x x may revoke such proclamation or suspension x x x" - is to be
construed as permissive and operating to confer discretion on the Congress on whether or not to
revoke,71 but in order to revoke, the same provision sets the requirement that at least a majority
of the Members of the Congress, voting jointly, favor revocation.
It is worthy to stress that the provision does not actually refer to a "joint session." While it may be
conceded, subject to the discussions below, that the phrase "voting jointly" shall already be
understood to mean that the joint voting will be done "in joint session," notwithstanding the
absence of clear language in the Constitution,72 still, the requirement that "[t]he
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special
session, x x x" explicitly applies only to the situation when the Congress revokes the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas
corpus. Simply put, the provision only requires Congress to vote jointly on the revocation of the
President's proclamation and/or suspension.
Hence, the plain language of the subject constitutional provision does not support the petitioners'
argument that it is obligatory for the Congress to convene in joint session following the
President's proclamation of martial law and/or suspension of the privilege of the writ of habeas
corpus, under all circumstances.
The deliberations of the 1986 ConCom reveal the framers' specific intentions to (a) remove the
requirement of prior concurrence of the Congress for the effectivity of the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus; and
(b) grant to the Congress the discretionary power to revoke the President's proclamation and/or
suspension by a vote of at least a majority of its Members, voting jointly.
The Court recognized in Civil Liberties Union v. The Executive Secretary73 that:
A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in
mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be
prevented or remedied. A. doubtful provision will be examined in the light of the history of the
times, and the condition and circumstances under which the Constitution was framed. The object
is to ascertain the reason which induced· the framers of the Constitution to enact the particular
provision and the purpose sought to be accomplished thereby, in order to construe the whole as
to make the words consonant to that reason and calculated to effect that purpose.
However, in the same Decision, the Court issued the following caveat:
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention "are of value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give US no light as to the views. of the large
majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We think it safer to construe the constitution
from what appears upon its face.'' The proper interpretation therefore depends more on how it
was understood by the people adopting it than in the framer's understanding
thereof.74 (Emphasis supplied.)
As the Court established in its preceding discussion, the clear meaning of the relevant provision
in Article VU, Section 18 of the 1987 Constitution is that the Congress is only required to vote
jointly on the revocation of the President's proclamation of martial law and/or suspension of the
privilege of the writ of habeas co1pus. Based on the Civil Liberties Union case, there is already
no need to look beyond the plain language of the provision and decipher the intent of the
framers of the 1987 Constitution. Nonetheless, the deliberations on Article VII, Section 18 of the
1986 ConCom does not reveal a manifest intent of the framers to make it mandatory for the
Congress to convene in joint session following the President's proclamation and/or suspension,
so it could deliberate as a single body, regardless of whether its Members will concur in or
revoke the President's proclamation and/or suspension.
What is evident in the deliberations of the 1986 ConCom were the framers' intentions to (a)
remove the requirement of prior concurrence by the Congress for the effectivity of the
President's proclamation of martial law and/or suspension of the privilege of the writ of habeas
corpus; and (b) grant to the Congress the discretionary power to revoke the President's
proclamation and/or suspension by a vote of at least a majority of its Members, voting jointly.
As the Commander-in-Chief clause was initially drafted, the President's suspension of the
privilege of the writ of habeas corpus required the prior concurrence of at least a majority of all
the members of the Congress to be effective. The first line read, "The President shall be the
commander-in-chief of all the armed forces of the Philippines and, whenever it becomes
necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion
or rebellion[;]" and the next line, "In case of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, and, with the concurrence of at least a majority
of all the members of the Congress, suspend the privilege of the writ of habeas corpus."75
The Commissioners, however, extensively debated on whether or not there should be prior
concurrence by the Congress, and the exchanges below present the considerations for both
sides:
MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that in the first
imposition of martial law there is no need for concurrence of the majority of the Members of
Congress because the provision says "in case of actual invasion and rebellion." If there is actual
invasion and rebellion, as Commissioner Crispino de Castro said, there is need for immediate
response because there is an attack. Second, the fact of securing a concurrence may be
impractical because the roads might be blocked or barricaded. They say that in case of rebellion,
one cannot even take his car and go to the Congress, which is possible because the roads are
blocked or barricaded. And maybe if the revolutionaries are smart they would have an individual
team for each and every Member of the Congress so he would not be able to respond to a call
for a session. So the requirement of an initial concurrence of the majority of all the Members of
the Congress in case of an invasion or rebellion might be impractical as I can see it.
Second, Section l5states that the Congress may revoke the declaration or lift the suspension.
And third, the matter of declaring martial law is already a justiciable question and no longer a
political one in that it is subject to judicial review at any point in time. So on that basis, I agree
that there is no need for concurrence as aprerequisite to declare martial law or to suspend the
privilege of the writ of habeas corpus. x x x
xxxx
MR. SUAREZ. x x x
The Commissioner is suggesting that in connection with Section 15, we delete the phrase "and,
with the concurrence of at least a majority of all the Members of the Congress..."
MR. PADILLA. That is correct especially for the initial suspension of the privilege of the writ
of habeas corpus or also the declaration of martial law.
MR. SUAREZ. So in both instances, the Commissioner is suggesting that .this would be an
exclusive prerogative of the President?
MR. PADILLA. At least initially, for a period of 60 days. But even that period of 60 days may be
shortened by the Congress or the Senate because the next sentence says that the Congress or
the Senate may even revoke the proclamation.
xxxx
MR. MONSOD. x x x
We are back to Section 15, page 7, lines 1 and 2. I just want to reiterate my previous proposal to
amend by deletion the phrase "and, with the concurrence of at least a majority of all the
members of Congress."
xxxx
MR. SUAREZ. x x x
The Commissioner is proposing a very substantial amendment because this means that he is
vesting exclusively unto the President the right to determine the factors which may lead to the
declaration of martial law and the suspension of the writ of habeas corpus. I suppose he has
strong and compelling reasons in seeking to delete this particular phrase. May we be informed of
his good and substantial reasons?
MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous
interpellatioi1s regarding this phrase, even during the discussions on the Bill of Rights, as I
understand it, the interpretation is a situation of actual invasion or rebellion. In these situations,
the President has to act quickly. Secondly, this declaration has a time fuse. It is only good for a
maximum of 60 days. At the end of 60 days, it automatically terminates. Thirdly, the right of the
judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists,
even during those first 60 days.
MR. SUAREZ. Given cur traumatic experience during the past administration, if we give
exclusive right to the President to determine these factors, especially the existence of an
invasion or rebellion and the second factor of determining whether the public safety requires it or
not, may I call the attention of the Gentleman to what happened to us during the past ac
ministration. Proclamation No. 1081 was issued by Ferdinand E. Marcos in his capacity as
President of the Philippines by virtue of the powers vested upon him purportedly under Article
VII, Section 10(2) of the Constitution, wherein he made this predicate under the "Whereas"
provision.
Whereas, the rebellion and armed action undertaken by these lawless elements of the
Communists and other armed aggrupations organized to overthrow the Republic of the
Philippines by armed violence and force, have assumed the magnitude of an actual state of war
against our people and the Republic of the Philippines.
And may I also call the attention of the Gentleman to General Order No. 3, also promulgated by
Ferdinand E. Marcos, in his capacity as Commander-in-Chief of all the Armed Forces of the
Philippines and pursuant to Proclamation No. 1081 dated September 21, 1972 wherein he said,
among other things:
Whereas, martial law having been declared because of wanton destruction of lives and
properties, widespread lawlessness and anarchy and chaos and disorder now prevailing
throughout the country, which condition has been brought about by groups of men who are
actively engaged in a criminal conspiracy to seize political and state power in the Philippines in
order to take over the government by force and violence, the extent of which has now assumed
the proportion of an actual war against our people and the legitimate government...
And he gave all reasons in order to suspend the privilege of the writ of habeas corpus and
declare martial law in our country without justifiable reason. Would the Gentleman still insist on
the deletion of the phrase "and, with the concurrence of at least a majority of all the members of
the Congress"?
MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos he is undoubtedly an
aberration in our history and national consciousness. But given the possibility that there would
be another Marcos, our Constitution now has sufficient safeguards. As I said, it is not really true,
as the Gentleman has mentioned, that there is an exclusive right to determine the factual bases
because the paragraph beginning on line 9 precisely tells us that the Supreme Court may
review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ or the extension
thereof and must promulgate its decision on the same within 30 days from its filing.
I believe that there are enough safeguards. The Constitution is supposed to balance the
interests of the country. And here we are trying to balance the public interest in case of invasion
or rebellion as against the rights of citizens. And I am saying that there are enough safeguards,
unlike in 1972 when Mr. Marcos was able to do all those things mentioned.
MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos had done?
MR. MONSOD. There is nothing absolute in this world, and there may be another Marcos. What
we are looking for are safeguards that are reasonable and, I believe, adequate at this point. On
the other hand, in case of invasion or rebellion, even during the first 60 days when the intention
here is to protect the country in that situation, it would be unreasonable to ask that there should
be a concurrence on the part of the Congress, which situation is automatically terminated at the
end of such 60 days.
xxxx
MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide for a legislative
check on this awesome power of the Chief Executive acting as Commander-in-Chief?
MR. MONSOD. I would be less comfortable if we have a presidency that cannot act under those
conditions.
MR. SUAREZ. But he can act with the concurrence of the proper or appropriate authority.
MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the concurrence of
Congress would be available; and, secondly, the President will be able to act quickly in order to
deal with the circumstances.
MR. SUAREZ. So, we would be subordinating actual circumstances to expediency.
MR. MONSOD. I do not believe it is expediency when one is trying to protect the country in the
event of an invasion or a rebellion.
MR. SUAREZ. No. But in both instances, we would be seeking to protect not only the country
but the rights of simple citizens. We have to balance these interests without sacrificing the
security of the State.
MR. MONSOD. I agree with the Gentleman that is why in the Article on the Bill of Rights, which
was approved on Third Reading, the safeguards and the protection of the citizens have been
strengthened. And on line 21 of this paragraph, I endorsed the proposed amendment of
Commissioner Padilla. We are saying that those who are arrested should be judicially charged
within five days; otherwise, they shall be released. So, there are enough safeguards.
MR. SUAREZ. These are safeguards after the declaration of martial law and after the
suspension of the writ of habeas corpus.
MR. MONSOD. That is true.76 (Emphases supplied.)
Ultimately, twenty-eight (28) Commissioners voted to remove the requirement for prior
concurrence by the Congress for the effectivity of the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas corpus, against only twelve (12)
Commissioners who voted to retain it.
As the result of the foregoing, the 1987 Constitution does not provide at all for the manner of
determination and expression of concurrence (whether prior or subsequent) by the Congress in
the President's proclamation of martial law and/or suspension of the privilege of the writ
of habeas corpus. In the instant cases, both Houses of the Congress separately passed
resolutions, in accordance with their respective rules of procedure, expressing their support for
President Duterte's Proclamation No. 216.
In contrast, being one of the constitutional safeguards against possible abuse by the President
of his power to proclaim martial law and/or suspend the privilege of the writ of habeas
corpus, the 1987 Constitution explicitly provides for how the Congress may exercise its
discretionary power to revoke the President's proclamation and/or suspension, that is, "voting
jointly, by a vote of at least a majority of all its Members in regular or special session."
The ConCom deliberations on this particular provision substantially revolved around whether the
two Houses will have to vote jointly or separately to revoke the President's proclamation of
martial law and/or suspension of the privilege of the writ of habeas corpus; but as the Court
reiterates, it is undisputedly for the express purpose of revoking the President's proclamation
and/or suspension.
Based on the ConCom deliberations, pertinent portions of which are reproduced hereunder, the
underlying reason for the requirement that the two Houses of the Congress will vote jointly is to
avoid the possibility of a deadlock and to facilitate the process of revocation of the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus:
MR. MONSOD. Madam President, I want to ask the Committee a clarifying question on line 4 of
page 7 as to whether the meaning here is that the majority of all the Members of each House
vote separately. Is that the intent of this phrase?
xxxx
FR. BERNAS. We would like a little discussion on that because yesterday we already removed
the necessity for concurrence of Congress for the initial imposition of martial law. If we require
the Senate and the House of Representatives to vote separately for purposes of revoking the
imposition of martial law, that will make it very difficult for Congress to revoke the imposition of
martial law and the suspension of the privilege of the writ of habeas corpus. That is just thinking
aloud. To balance the fact that the President acts unilaterally, then the Congress voting as one
body and not separately can revoke the declaration of martial law or the suspension of the
privilege of the writ of habeas corpus.
MR. MONSOD. In other words, voting jointly.
FR. BERNAS. Jointly, yes.
xxxx
MR. RODRIGO. May I comment on the statement made by Commissioner Bernas? I was a
Member of the Senate for 12 years. Whenever a bicameral Congress votes, it is always
separately.
For example, bills coming. from the Lower House are voted upon by the Members of the House.
Then they go up to the Senate and voted upon separately. Even on constitutional amendments,
where Congress meets in joint session, the two Houses vote separately.
Otherwise, the Senate will be useless; it will be sort of absorbed by the House considering that
the Members of the Senate are completely outnumbered by the Members of the House. So, I
believe that whenever Congress acts, it must be the two Houses voting separately.
If the two Houses vote "jointly," it would mean mixing the 24 Senators with 250 Congressmen.
This would result in the Senate being absorbed and controlled by the House. This violates the
purpose of having a Senate.
FR. BERNAS. I quite realize that that is the practice and, precisely, in proposing this, I am
consciously proposing this as an exception to this practice because of the tremendous effect on
the nation when the privilege of the writ of habeas corpus is suspended and then martial law is
imposed. Since we have allowed the President to impose martial law and suspend the privilege
of the writ of habeas corpus unilaterally, we should make it a little more easy for Congress to
reverse such actions for the sake of protecting the rights of the people.
MR. RODRIGO. Maybe the way it can be done is to vest this function in just one of the
Chambers - to the House alone or to the Senate alone. But to say, "by Congress," both House
and Senate "voting" jointly is practically a vote by the House.
FR. BERNAS. I would be willing to say just the vote of the House.
MR. RODRIGO. That is less insulting to the Senate. However, there are other safeguards. For
example, if, after 60 days the Congress does not act, the effectiveness of the declaration of
martial law or the suspension of the privilege of the writ ceases. Furthermore, there is recourse
to the Supreme Court.
FR. BERNAS. I quite realize that there is this recourse to the Supreme Court and there is a time
limit, but at the same time because of the extraordinary character of this event when martial law
is imposed, I would like to make it easier for the representatives of the people to review this very
significant action taken by the President.
MR. RODRIGO. Between the Senate being absorbed and controlled by the House numerically
and the House voting alone, the lesser of two evils is the latter.
xxxx
MR. GUINGONA. x x x
In connection with the inquiry of Commissioner Monsod, and considering the statements made
by Commissioner Rodrigo, I would like to say, in reply to Commissioner Bernas, that perhaps
because of necessity, we might really have to break tradition. Perhaps it would be better to
give this function of revoking the proclamation of martial law or the suspension of the writ or
extending the same to the House of Representatives, instead of to the Congress. I feel that even
the Senators would welcome this because they would feel frustrated by the imbalance in the
number between the Senators and the Members of the House of Representatives.
Anyway, Madam President, we have precedents or similar cases. For example, under Section
24 of the committee report on the Legislative, appropriation, revenue or tariff bills, and bills
authorizing increase of public debt are supposed to originate exclusively in the House of
Representatives. Besides, we have always been saying that it is the Members of the House of
Representatives who are mostly in touch with the people since they represent the various
districts of our country.
xxxx
MR. MONSOD. I would prefer to have the vote of both Houses because this is a very serious
question that must be fully discussed. By limiting it alone to the House of Representatives, then
we lose the benefit of the advice and opinion of the Members of the Senate. I would prefer that
they would be in joint session, but I would agree with Father Bernas that they should not be
voting separately as part of the option. I think they should be voting jointly, so that, in effect, the
Senators will have only one vote. But at least we have the benefit of their advice.
xxxx
MR. RODRIGO. I was the one who proposed that the two Houses vote separately because if
they vote jointly, the Senators are absolutely outnumbered. It is insulting to the intelligence of the
Senators to join a session where they know they are absolutely outnumbered. Remember that
the Senators are elected at large by the whole country. The Senate is a separate Chamber. The
Senators have a longer term than the Members of the House; they have a six-year term. They
are a continuing Senate. Out of 24, twelve are elected every year. So, if they will participate at
all, the Senate must vote separately. That is the practice everywhere where there are two
chambers. But as I said, between having a joint session of the Senate and the House voting
jointly where it is practically the House that will decide alone, the lesser of two evils is just to let
the House decide alone instead of insulting the Senators by making them participate in a
charade.
MR. REGALADO. May the Committee seek this clarification from Commissioner Rodrigo? This
vC1ting is supposed to revoke the proclamation of martial Jaw. If the two Houses vote
separately and a majority is obtained in the House of Representatives for the revocation of the
proclamation of martial law but that same majority cannot be obtained in the Senate voting
separately, what would be the situation?
MR. RODRIGO. Then the proclamation of martial law or the suspension continues for almost
two months. After two months, it stops. Besides, there is recourse to the Supreme Court.
MR. REGALADO. Therefore, that arrangement would be very difficult for the legislative since
they are voting separately and, for lack of majority in one of the Houses they are precluded from
revoking that proclamation. They will just, therefore, have to wait until the lapse of 60 days.
MR. RODRIGO. It might be difficult, yes. But remember, we speak of the Members of Congress
who are elected by the people. Let us not forget that the President is also elected by the people.
Are we forgetting that the President is elected by the people? We seem to distrust all future
Presidents just because one President destroyed our faith by his declaration of martial law. I
think we are overreacting. Let us not judge all Presidents who would henceforth be elected by
the Filipino people on the basis of the abuses made by that one President. Of course, we must
be on guard; but let us not overreact.
Let me make my position clear. I am against the proposal to make the House and the Senate
vote jointly. That is an insult to the Senate.
xxxx
MR. RODRIGO. Will the Gentleman yield to a question?
MR. MONSOD. Yes, Madam President.
MR. RODRIGO. So, in effect, if there is a joint session composed of 250 Members of the
House plus 24 Members of the Senate, the total would be 274. The majority would be one-half
plus one.
MR. MONSOD. So, 148 votes.
MR. RODRIGO. And the poor Senators would be absolutely absorbed and outnumbered by the
250 Members of the House. Is that it?
MR. MONSOD. Yes, that is one of the implications of the suggestion and the amendment is
being made nonetheless because there is a higher objective or value which is to prevent a
deadlock that would enable the President to continue the full 60 days in case one House
revokes and the other House does not.
The proposal also allows the Senators to participate fully in the discussions and whether we like
it or not, the Senators have very large persuasive powers because of their prestige and their
national vote.
MR. RODRIGO. So, the Senators will have the "quality votes" but Members of the House will
have the "quantity votes." Is that it?
MR. MONSOD. The Gentleman is making an assumption that they will vote against each other. I
believe that they will discuss, probably in joint session and vote on it; then the consensus will be
clear.
xxxx
MR. NOLLEDO. Madam President, the purpose of the amendment is really to set forth a
limitation because we have to avoid a stalemate. For example, the Lower House decides that
the declaration of martial law should be revoked, and that later on, the Senate sitting separately
decides that it should not be revoked. It becomes inevitable that martial law shall continue even
if there should be no factual basis for it.
MR. OPLE. Madam President, if this amendment is adopted, we will be held responsible for a
glaring inconsistency in the Constitution to a degree that it distorts the bicameral system that we
have agreed to adopt. I reiterate: If there are deadlocks, it is the responsibility of the presidential
leadership, together with the leaders of both Houses, to overcome them.77 (Emphases supplied.)
When the matter was put to a vote, twenty-four (24) Commissioners voted for the two Houses of
the Congress "voting jointly" in the revocation of the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas corpus, and thirteen (13) Commissioners
opted for the two Houses "voting separately."
Yet, there was another attempt to amend the provision by requiring just the House of
Representatives, not the entire Congress, to vote on the revocation of the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus:
MR. RODRIGO. Madam President, may I propose an amendment?
xxxx
MR. RODRIGO. On Section 15, page 7, line 4, I propose to change the word "Congress" to
HOUSE OF REPRESENTATIVES so that the sentence will read: "The HOUSE OF
REPRESENTATIVES, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension or extend the same if the invasion or
rebellion shall persist and public safety requires it."
FR. BERNAS. Madam President, the proposed amendment is really a motion for
reconsideration. We have already decided that both Houses will vote jointly. Therefore, the
proposed amendment, in effect, asks for a reconsideration of that vote in order to give it to the
House of Representatives.
MR. RODRIGO. Madam President, the opposite of voting jointly is voting separately. If my
amendment were to vote separately, then, yes, it is a motion for reconsideration. But this is
another formula.
xxxx
MR. DE CASTRO. What is the rationale of the amendment?
MR. RODRIGO. It is intended to avoid that very extraordinary and awkward provision which
would make the 24 Senators meet jointly with 250 Members of the House and make them vote
jointly. What I mean is, the 24 Senators, like a drop in the bucket, are absorbed numerically by
the 250 Members of the House.
xxxx
MR. SARMIENTO. Madam President, we need the wisdom of the Senators. What is at stake is
the future of our country - human rights and civil liberties. If we separate the Senators, then we
deprive the Congressmen of the knowledge and experience of these 24 men. I think we should
forget the classification of "Senators" or "Congressmen." We should all work together to restore
democracy in our country. So we need the wisdom of 24 Senators.
MR. RODRIGO. Madam President, may I just answer. This advice of the 24 Senators can be
sought because they are in the same building. Anyway, the provision, with the amendment of
Commissioner Monsod, does not call for a joint session. It only says: "the Congress, by a vote of
at least a majority of all its Members in regular or special session" - it does not say "joint
session." So, I believe that if the Members of the House need the counsel of the Senators, they
can always call on them, they can invite them.78 (Emphasis supplied.)
The proposed amendment was not adopted, however, as only five (5) Commissioners voted in
its favor and twenty-five (25) Commissioners voted against it. Thus, the power to revoke the
President's proclamation of martial law and/or suspension of the privilege of the writ of habeas
corpus still lies with both Houses of the Congress, voting jointly, by a vote of at least a majority
of all its Members.
Significantly, the Commissioners only settled the manner of voting by the Congress, i.e., "voting
jointly, by a vote of at least a majority of all its Members," in order to revoke the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus, but
they did not directly take up and specify in Article VII, Section 18 of the 1987 Constitution that
the voting shall be done during a joint session of both Houses of the Congress. In fact,
Commissioner Francisco A. Rodrigo expressly observed that the provision does not call for a
joint session. That the Congress will vote on the revocation of the President's proclamation
and/or suspension in a joint session can only be inferred from the arguments of the
Commissioners who pushed for the "voting jointly" amendment that the Members of the House
of Representatives will benefit from the advice, opinion, and/or wisdom of the Senators, which
will be presumably shared during a joint session of both Houses. Such inference is far from a
clear mandate for the Congress to automatically convene in joint session, under all
circumstances, when the President proclaims martial law and/or suspends the privilege of the
writ of habeas corpus, even when Congress does not intend to revoke the President's
proclamation and/or suspension.
There was no obligation on the part of the Congress herein to convene in joint session as the
provision on revocation under Article VII, Section 18 of the 1987 Constitution did not even come
into operation in light of the resolutions, separately adopted by the two Houses of the Congress
in accordance with their respective rules of procedure, expressing support for President
Duterte's Proclamation No. 216.
The provision in Article VII, Section 18 of the 1987 Constitution requiring the Congress to vote
jointly in a joint session is specifically for the purpose of revocation of the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus. In the
petitions at bar, the Senate and House of Representatives already separately adopted
resolutions expressing support for President Duterte's Proclamation No. 216. Given the express
support of both Houses of the Congress for Proclamation No. 216, and their already evident lack
of intent to revoke the same, the provision in Article VII, Section 18 of the 1987 Constitution on
revocation did not even come into operation and, therefore, there is no obligation on the part of
the Congress to convene in joint session.
Practice and logic dictate that a collegial body will first hold a meeting among its own members
to get a sense of the opinions of its individual members and, if possible and necessary, reach an
official stance, before convening with another collegial body. This is exactly what the two Houses
of the Congress did in these cases.
The two Houses of the Congress, the Senate and the House of Representatives, immediately
took separate actions on President Duterte's proclamation of martial law and suspension of the
privilege of the writ of habeas corpus in Mindanao through Proclamation No. 216, in accordance
with their respective rules of procedure. The Consolidated Comment (Ex Abudanti Cautela), filed
by the Senate and Senate President Pimentel, recounted in detail the steps undertaken by both
Houses of the Congress as regards Proclamation No. 216, to wit:
2. On the date of the President's declaration of martial law and the suspension of the privilege of
the writ of habeas corpus, Congress was in session (from May 2, to June 2, 2017), in its First
Regular Session of the 17th Congress, as evidenced by its Legislative Calendar, otherwise
known as Calendar of Session as contained in Concurrent Resolution No. 3 of both the Senate
and the House of Representatives.x x x
3. During the plenary session of the Senate on the following day, 24 May 2017, privilege
speeches and discussions had already been made about the declaration of martial law and the
suspension of the privilege of the writ of habeas corpus. This prompted Senator Franklin M.
Drilon to move to invite the Secretary of National Defense, the National Security Adviser and the
Chief of Staff of the Armed Forces of the Philippines to brief the senators in closed session on
what transpired in Mindanao. Submitted to a vote and there being no objection, the Senate
approved the motion. x x x
4. On 25 May 2017, the President furnished the Senate and the House of Representatives,
through Senate President Aquilino "Koko" Pimentel III and Speaker Pantaleon D. Alvarez,
respectively, with copies of his report (hereinafter, the "Report") detailing the factual and legal
basis for his declaration of martial law and the suspension of the privilege of the writ of habeas
corpus in Mindanao.
5. On or about 25 May 2017, invitation letters were issued and sent by the Senate Secretary,
Atty. Lutgardo B. Barbo to the following officials requesting them to attend a briefing for the
Senators on 29 May 2017 at 3:00 p.m. at the Senators' Lounge at the Senate in a closed door
session to describe what transpired in Mindanao which was the basis of the declaration of
martial law in Mindanao: (a) Secretary Delfin N. Lorenzana, Secretary of National Defense
(hereinafter, "Secretary Lorenzana"); (b) Secretary Hermogenes C. Esperon, Jr., National
Security Adviser and Director General of the National Security Council (hereinafter, "Secretary
Esperon"); and (c) General Eduardo M. Año, Chief of Staff of the Armed Forces of the
Philippines (hereinafter, "Gen. Año"). The said letters stated that the Senators requested that the
President's Report be explained and that more details be given about the same. Xxx
6. On 29 May 2017, about 3:30 p.m., a closed door briefing was conducted by Secretary
Lorenzana, Secretary Esperon and other security officials for the Senators to brief them about
the circumstances surrounding the declaration of martial law and to inform them about details
about the President's Report. The briefing lasted for about four (4) hours. After the briefing, the
Senators had a caucus to determine what could be publicly revealed.
7. On the same day, 29 May 2017, the House of Representatives resolved to constitute itself as
a Committee of the Whole on 31 May 2017 to consider the President's Report.
8. On 30 May 2017, two (2) resolutions were introduced in the Senate about the proclamation of
martial law. The first one was P.S. Resolution No. 388 (hereinafter, "P.S.R. No. 388") introduced
by Senators Sotto, Pimentel, Recto, Angara, Binay, Ejercito, Gatchalian, Gordon, Honasan,
Lacson, Legarda, Pacquiao, Villanueva, Villar and Zubiri which was entitled, "Expressing the
Sense of the Senate, Supporting the Proclamation No. 216 dated May 23, 2017, entitled
"Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in
the Whole of Mindanao" and Finding no Cause to revoke the Same." The second one was P.S.
Resolution No. 390 (hereinafter, "P.S.R. No. 390") introduced by Senators Pangilinan, Drilon,
Hontiveros, Trillanes, Aquino and De Lima which was entitled, "Resolution to Convene Congress
in Joint Session and Deliberate on Proclamation No. 216 dated 23 May 2017 entitled, "Declaring
a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole
of Mindanao." x x x
9. Discussions were made on the two (2) proposed resolutions during the plenary deliberations
of the Senate on 30 May 2017. The first resolution to be discussed was P.S.R. No. 388. During
the deliberations, amendments were introduced to it and after the amendments and the debates,
P.S.R. No. 388 was voted upon and it was adopted by a vote of seventeen (17) affirmative votes
and five (5) negative votes. The amended, substituted and approved version of P.S.R. No. 388,
which was then renamed Resolution No. 49, states as follows:
RESOLUTION NO. 49
RESOLUTION EXPRESSING THE SENSE OF THE SENATE NOT TO REVOKE, AT THIS
TIME, PROCLAMATION NO. 216, SERIES OF 2017, ENTITLED, "DECLARING A STATE OF
MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN
THE WHOLE OF MINDANAO."
WHEREAS, the 1987 Philippine Constitution, Article VII, Section 18, provides that:
"... in case of invasion or rebellion, when the public safety requires it, he (President) may, for a
period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law...";
WHEREAS, President Rodrigo Roa Duterte issued Proclamation No. 216, series of 2017,
entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas
Corpus in the Whole of Mindanao," on May 23, 2017 (the "Proclamation");
WHEREAS, pursuant to his duty under the Constitution, on May 25, 2017, and within forth-eight
hours after the issua.11ce of the Proclamation, President Duterte submitted to the Senate his
report on the factual and legal basis of the Proclamation;
WHEREAS, on May 29, 2017, the Senators were briefed by the Department of National Defense
(DND), the Armed Forces of the Philippines (AFP), and by the National Security Council (NSC)
on the factual circumstances surrounding the Proclamation as well as the updates on the
situation in Mindanao;
WHEREAS, on the basis of the information received by the Senators, the Senate is convinced
that President Duterte declared martial law and suspended the privilege of the writ of habeas
corpus in the whole of Mindanao because actual rebellion exists and that the public safety
requires it;
WHEREAS, the Senate, at this time, agrees that there is no compelling reason to revoke
Proclamation No. 216, series of 2017;
WHEREAS, the Proclamation does not suspend the operation of the Constitution, which among
others, guarantees respect for human rights and guards against any abuse or violation thereof:
Now, therefore, be it
Resolved, as it is hereby resolved, To express the sense of the Senate, that there is no
compelling reason to revoke Proclamation No. 216, series of 2017 at this time.
Adopted. x x x"
xxxx
10. Immediately thereafter, P.S.R. No. 390 was also deliberated upon. After a prolonged
discussion, a vote was taken on it and nine (9) senators were in favor and twelve (12) were
against. As such, P.S.R. No. 390 calling for a joint session of Congress was not adopted. x x x
11. In the meantime, on 31 May 2017, the House of Representatives acting as a Committee of
the Whole was briefed for about six (6) hours by officials of the government led by Executive
Secretary Salvador C. Medialdea (hereinafter, "Executive Secretary Medialdea"), Secretary
Lorenzana and other security officials on the factual circumstances surrounding the President's
declaration of martial law and on the statements contained in the President's Report. During the
evening of the same day, a majority of the House of Representatives passed Resolution No.
1050 entitled, "'Resolution Expressing the Full Support of the House of Representatives to
President Rodrigo Roa Duterte As It Finds No Reason to Revoke Proclamation No. 216 Entitled,
'Declaring A State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in
the Whole of Mindanao."' In the same deliberations, it was likewise proposed that the House of
Representatives call for a joint session of Congress to deliberate and vote on the President's
declaration of martial law and the suspension of the privilege of the writ of habeas
corpus. However, after debates, the proposal was not carried. x x x.79
It cannot be disputed then that the Senate and House of Representatives placed President
Duterte's Proclamation No. 216 under serious review and consideration, pursuant to their power
to revoke such a proclamation vested by the Constitution on the Congress. Each House timely
took action by accepting and assessing the President's Report, inviting over and interpellating
executive officials, and deliberating amongst their fellow Senators or Representatives, before
finally voting in favor of expressing support for President Duterte's Proclamation No. 216 and
against calling for a joint session with the other House. The prompt actions separately taken by
the two Houses of the Congress on President Duterte's Proclamation No. 216 belied all the
purported difficulties and delays such procedures would cause as raised in the Concurring and
Dissenting Opinion of Associate Justice Marvic M.V.F. Leonen (Justice Leonen). As earlier
pointed out, there is no constitutional provision governing concurrence by the Congress in the
President's proclamation of martial law and/or suspension of the privilege of the writ of habeas
corpus, and absent a specific mandate for the Congress to hold a joint session in the event of
concurrence, then whether or not to hold a joint session under such circumstances is completely
within the discretion of the Congress.
The Senate and Senate President Pimentel explained in their Consolidated Comment (Ex
Abudanti Cautela), that, by practice, the two Houses of the Congress must adopt a concurrent
resolution to hold a joint session, and only thereafter can the Houses adopt the rules to be
observed for that particular joint session:
It must be stated that the Senate and the House of Representatives have their own respective
Rules, i.e., the Rules of the Senate and the Rules of the House of Representatives. There is no
general body of Rules applicable to a joint session of Congress. Based on parliamentary
practice and procedure, the Senate and House of Representatives only adopt Rules for a joint
session on an ad hoc basis but only after both Houses have already agreed to convene in a joint
session through a Concurrent Resolution. The Rules for a Joint Session for a particular purpose
become functus officio after the purpose of the joint session has been achieved. Examples of
these Rules for a Joint Session are (1) the Rules of the Joint Public Session of Congress on
Canvassing the Votes Cast for Presidential and Vice-Presidential Candidates in the May 9, 2016
Election adopted on 24 May 2016; and (2) the Rules of the Joint Session of Congress on
Proclamation No. 1959 (Proclaiming a State of Martial Law and Suspending the Privilege of the
Writ of Habeas Corpus in the Province of Maguindanao, Except for Certain Areas) adopted on
09 December 2009. The only time that the Senate and the House of Representatives do not
adopt Rules for a joint session is when they convene on the fourth Monday of July for its regular
session to receive or listen to the State of the Nation Address of the President and even then,
they adopt a Concurrent Resolution to do so.
The usual procedure for having a joint session is for both Houses to first adopt a Concurrent
Resolution to hold a joint session. This is achieved by either of two (2) ways: (1) both the Senate
and the House of Representatives simultaneously adopting the Concurrent Resolution - an
example would be when the two (2) Houses inform the President that they are ready to receive
his State of the Nation Address or (2) For one (1) House to pass its own resolution and to send it
to the other House for the latter's concurrence. Once the joint session of both Houses is actually
convened, it is only then that the Senate and the House of Representatives jointly adopt the
Rules for the joint session. x x x80 (Emphases supplied.)
With neither Senate nor the House of Representatives adopting a concurrent resolution, no joint
session by the two Houses of the Congress can be had in the present cases.
The Court is bound to respect the rules of the Congress, a co-equal and independent branch of
government. Article VI, Section 16(3) of the 1987 Constitution states that "[e]ach House shall
determine the rules of its proceedings." The provision has been traditionally construed as a grant
of full discretionary authority to the Houses of Congress in the formulation, adoption, and
promulgation of its rules; and as such, the exercise of this power is generally exempt from
judicial supervision and interference.81 Moreover, unless there is a clear showing by strong and
convincing reasons that they conflict with the Constitution, "all legislative acts are clothed with an
armor of constitutionality particularly resilient where such acts follow a long-settled and well-
established practice by the Legislature."82Nothing in this Decision should be presumed to give
precedence to the rules of the Houses of the Congress over the provisions of the Constitution.
This Court simply holds that since the Constitution does not regulate the manner by which the
Congress may express its concurrence to a Presidential proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus, the Houses of the Congress have the
discretion to adopt rules of procedure as they may deem appropriate for that purpose.
The Court highlights the particular circumstance herein that both Houses of Congress already
separately expressed support for President Duterte's Proclamation No. 216, so revocation
was not even a possibility and the provision on revocation under Article VII, Section 18 of the
1987 Constitution requiring the Congress to vote jointly in a joint session never came into
operation. It will be a completely different scenario if either of the Senate or the House of
Representatives, or if both Houses of the Congress, resolve/s to revoke the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas
corpus, in which case, Article VII, Section 18 of the 1987 Constitution shall apply and the
Congress must convene in joint session to vote jointly on the revocation of the proclamation
and/or suspension. Given the foregoing parameters in applying Article VII, Section 18 of the
1987 Constitution, Justice Leonen's concern, expressed in his Concurring and Dissenting
Opinion, that a deadlock may result in the future, is completely groundless.
The legislative precedent referred to by petitioners actually supports the position of the Court in
the instant cases. On December 4, 2009, then President Macapagal-Arroyo issued Proclamation
No. 1959, entitled "Proclaiming a State of Martial law and Suspending the Privilege of the Writ of
Habeas Corpus in the Province of Maguindanao, except for Certain Areas." The Senate, on
December 14, 2009, adopted Resolution No. 217, entitled "Resolution Expressing the Sense of
the Senate that the Proclamation of Martial Law in the Province of Maguindanao is Contrary to
the Provisions of the 1987 Constitution." Consequently, the Senate and the House of
Representatives adopted Concurrent Resolutions, i.e., Senate Concurrent Resolution No. 14
and House Concurrent Resolution No. 33, calling both Houses of the Congress to convene in
joint session on December 9, 2009 at 4:00 p.m. at the Session Hall of the House of
Representatives to deliberate on Proclamation No. 1959. It appears then that the two Houses of
the Congress in 2009 also initially took separate actions on President Macapagal-Arroyo's
Proclamation No. 1959, with the Senate eventually adopting Resolution No. 217, expressing
outright its sense that the proclamation of ma11ial law was unconstitutional and necessarily
implying that such proclamation should be revoked. With one of the Houses favoring revocation,
and in observation of the established practice of the Congress, the two Houses adopted
concurrent resolutions to convene in joint session to vote on the revocation of Proclamation No.
1959.
For the same reason, the Fortun case cannot be deemed a judicial precedent for the present
cases. The factual background of the Fortun case is not on all fours with these cases. Once
more, the Court points out that in the Fortun case, the Senate expressed through Resolution No.
217 its objection to President Macapagal-Arroyo's Proclamation No. 1959 for being
unconstitutional, and both the Senate and the House of Representatives adopted concurrent
resolutions to convene in joint session for the purpose of revoking said proclamation; while in the
cases at bar, the Senate and the House of Representatives adopted Senate Resolution No. 49
and House Resolution No. 1050, respectively, which expressed support for President Duterte's
Proclamation No. 216, and both Houses of the Congress voted against calling for a joint session.
In addition, the fundamental issue in the Fortun case was whether there was factual basis for
Proclamation No. 1959 and not whether it was mandatory for the Congress to convene in joint
session; and even before the Congress could vote on the revocation of Proclamation No. 1959
and the Court could resolve the Fortun case, President Macapagal-Arroyo already issued
Proclamation No. 1963 on December 12, 2009, entitled "Proclaiming the Termination of the
State of Martial Law and the Restoration of the Privilege of the Writ of Habeas Corpus in the
Province of Maguindanao." Furthermore, the word "automatic" in the Fortun case referred to the
duty or power of the Congress to review the proclamation of martial law and/or suspension of the
privilege of the writ of habeas corpus, rather than the joint session of Congress.83
Petitioners invoke the following provision also in Article VII, Section 18 of the 1987 Constitution:
"The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension convene in accordance with its rules without call." Petitioners reason that if the
Congress is not in session, it is constitutionally mandated to convene within twenty-four (24)
hours from the President's proclamation of martial law and/or suspension of the privilege of the
writ of habeas corpus, then it is with all the more reason required to convene immediately if in
session.
The Court is not persuaded.
First, the provision specially addresses the situation when the President proclaims martial law
and/or suspends the privilege of the writ of habeas corpus while the Congress is in recess. To
ensure that the Congress will be able to act swiftly on the proclamation and/or suspension, the
1987 Constitution provides that it should convene within twenty-four (24) hours without need for
call. It is a whole different situation when the Congress is still in session as it can readily take up
the proclamation and/or suspension in the course of its regular sessions, as what happened in
these cases. Second, the provision only requires that the Congress convene without call, but it
does not explicitly state that the Congress shall already convene in joint session. In fact, the
provision actually states that the Congress "convene in accordance with its rules," which can
only mean the respective rules of each House as there are no standing rules for joint sessions.
And third, it cannot be said herein that the Congress failed to convene immediately to act on
Proclamation No. 216. Both Houses of the Congress promptly took action on Proclamation No.
216, with the Senate already issuing invitations to executive officials even prior to receiving
President Duterte's Report, except that the two Houses of the Congress acted separately. By
initially undertaking separate actions on President Duterte's Proclamation No. 216 and making
their respective determination of whether to support or revoke said Proclamation, the Senate
and the House of Representatives were only acting in accordance with their own rules of
procedure and were not in any way remiss in their constitutional duty to guard against a
baseless or unjustified proclamation of martial law and/or suspension of the privilege of the writ
of habeas corpus by the President.
There is likewise no basis for petitioners' assertion that without a joint session, the public cannot
hold the Senators and Representatives accountable for their respective positions on President
Duterte's Proclamation No. 216. Senate records completely chronicled the deliberations and the
voting by the Senators on Senate Resolution No. 49 (formerly P.S. Resolution No. 388) and P.S.
Resolution No. 390. While it is true that the House of Representatives voted on House
Resolution No. 1050 viva voce, this is only in accordance with its rules. Per the Rules of the
House of Representatives:
RULE XV
Voting
Sec. 115. Manner of Voting. -The Speaker shall rise and state the motion or question that is
being put to a vote in clear, precise and simple language. The Speaker shall say "as many as
are in favor, (as the question may be) say 'aye'". After the affirmative vote is counted, the
Speaker shall say "as many as are opposed, (as the question may be) say 'nay"'.
If the Speaker doubts the result of the voting or a motion to divide the House is Carried, the
House shall divide. The Speaker shall ask those in favor to rise, to be followed by those against.
If still in doubt of the outcome or a count by tellers is demanded, the Speaker shall name one (1)
Member from each side of the question to count the Members in the affirmative and those in the
negative. After the count is reported, the Speaker shall announce the result.
An abstention shall not be counted as a vote. Unless otherwise provided by the Constitution or
by these rules, a majority of those voting, there being a quorum, shall decide the issue.
Sec. 116. Nominal Voting. - Upon motion of a Member, duly approved by one-fifth (1/5) of the
Members present, there being a quorum, nominal voting on any question may be called. In case
of nominal voting, the Secretary General shall call, in alphabetical order, the nan1es of the
Members who shall state their vote as their names are called.
Sec. 117. Second Call on Nominal Voting. - A second call on nominal voting shall be made to
allow Members who did not vote during the first call to vote.1avvphi1 Members who fail to vote
during the second call shall no longer be allowed to vote.
Since no one moved for nominal voting on House Resolution No. 1050, then the votes of the
individual Representatives cannot be determined. It does not render though the proceedings
unconstitutional or invalid.
The Congress did not violate the right of the
public to information when it did not
convene in joint session.
The Court is not swayed by petitioners' argument that by not convening in joint session, the
Congress violated the public's right to information because as records show, the Congress still
conducted deliberations on President Duterte's Proclamation No. 216, albeit separately; and the
public's right to information on matters of national security is not absolute. When such matters
are being taken up in the Congress, whether in separate or joint sessions, the Congress has
discretion in the manner the proceedings will be conducted.
Petitioners contend that the Constitution requires a public deliberation process on the
proclamation of martial law: one that is conducted via a joint session and by a single body. They
insist that the Congress must be transparent, such that there is an "open and robust debate,"
where the evaluation of the proclamation's factual bases and subsequent implementation shall
be openly discussed and where each member's position on the issue is heard and made known
to the public.
The petitioners' insistence on the conduct of a "joint session" contemplates a mandatory joint
Congressional session where public viewing is allowed.
However, based on their internal rules, each House has the discretion over the manner by which
Congressional proceedings are to be conducted. Verily, sessions are generally open to the
public,84 but each House may decide to hold an executive session due to the confidential nature
of the subject matter to be discussed and deliberated upon.
Rule XI of the Rules of the House of Representatives provides:
Section 82. Sessions Open to the Public. - Sessions shall be open to the public. However, when
the security of the State or the dignity of the House or any of its Members are affected by any
motion or petition being considered, the House may hold executive sessions.
Guests and visitors in the galleries are prohibited from using their cameras and video recorders.
Cellular phones and other similar electronic devices shall be put in silent mode.
Section 83. Executive Sessions. - When the House decides to hold an executive session, the
Speaker shall direct the galleries and hallways to be cleared and the doors closed. Only the
Secretary General, the Sergeant-at- Arms and other persons specifically authorized by the
House shall be admitted to the executive session. They shall preserve the confidentiality of
everything read or discussed in the session. (Emphasis supplied.)
Rule XLVII of the Rules of the Senate similarly sets forth the following:
SEC. 126. The executive sessions of the Senate shall be held always behind closed doors. In
such sessions, only the Secretary, the Sergeant-at-Arms, and/or such other persons as may be
authorized by the Senate may be admitted to the session hall.
SEC. 127. Executive sessions shall be held whenever a Senator so requests it and his petition
has been duly seconded, or when the security of the State or public interest so requires.
Thereupon, the President shall order that the public be excluded from the gallery and the doors
of the session hall be closed.
The Senator who presented the motion shall then explain the reasons which he had for
submitting the same.
The minutes of the executive sessions shall be recorded m a separate book. (Emphasis
supplied)
From afore-quoted rules, it is clear that matters affecting the security of the state are considered
confidential and must be discussed and deliberated upon in an executive session, excluding the
public therefrom.
That these matters are considered confidential is in accordance with settled jurisprudence that,
in the exercise of their right to information, the government may withhold certain types of
information from the public such as state secrets regarding military, diplomatic, and other
national security matters.85 The Court has also ruled that the Congress' deliberative process,
including information discussed and deliberated upon in an executive session,86may be kept out
of the public's reach.
The Congress not only recognizes the sensitivity of these matters but also endeavors to
preserve their confidentiality. In fact, Rule XL VII, Section 12887 of the Rules of the Senate
expressly establishes a secrecy ban prohibiting all its members, including Senate officials and
employees, from divulging any of the confidential matters taken up by the Senate. A Senator
found to have violated this ban faces the possibility of expulsion from his office. 88This is
consistent with the Ethical Standards Act89 that prohibits public officials and employees from
using or divulging "confidential or classified information officially known to them by reason of
their office and not made available to the public."90
Certainly, the factual basis of the declaration of martial law involves intelligence information,
military tactics, and other sensitive matters that have an undeniable effect on national security.
Thus, to demand Congress to hold a public session during which the legislators shall openly
discuss these matters, all the while under public scrutiny, is to effectively compel them to make
sensitive information available to everyone, without exception, and to breach the recognized
policy of preserving these matters' confidentiality, at the risk of being sanctioned, penalized, or
expelled from Congress altogether.
That these are the separate Rules of the two Houses of the Congress does not take away from
their persuasiveness and applicability in the event of a joint session.1âwphi1 Since both Houses
separately recognize the policy of preserving the confidentiality of national security matters, then
in all likelihood, they will consistently observe the same in a joint session. The nature of these
matters as confidential is not affected by the composition of the body that will deliberate upon it -
whether it be the two Houses of the Congress separately or in joint session.
Also, the petitioners' theory that a regular session must be preferred over a mere briefing for
purposes of ensuring that the executive and military officials are placed under oath does not
have merit. The Senate Rules of Procedure Governing Inquiries In Aid of Legislation91 require
that all witnesses at executive sessions or public hearings who testify as to matters of fact shall
give such testimony under oath or affirmation. The proper implementation of this rule is within
the Senate's competence, which is beyond the Court's reach.
Propriety of the issuance of a writ of
mandamus or certiorari
For mandamus to lie, there must be compliance with Rule 65, Section 3, Rules of Court, to wit:
SECTION 3. Petition for mandamus. - When any tribunal, corporation, board, officer or person
unlawfully neglects the perfom1ance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, immediately or at some other time to be specified by the
court, to do the act required to be done to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the respondent,
longer hold a joint session, considering their respective resolutions not to revoke said
Proclamation.
In the same vein, there is no cause for the Court to grant a writ of certiorari.
As earlier discussed, under the Court's expanded jurisdiction, a petition for certiorari is a proper
remedy to question the act of any branch or instrumentality of the government on the ground of
grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the government, even if the latter does not exercise judicial, quasi-judicial or
ministerial functions.95 Grave abuse of discretion implies such capricious and whimsical exercise
of judgment as to be equivalent to lack or excess of jurisdiction; in other words, power is
exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal
hostility; and such exercise is so patent or so gross as to amount to an evasion of a positive duty
or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of
law.96 It bears to mention that to pray in one petition for the issuance of both a writ
of mandamus and a writ of certiorari for the very same act - which, in the Tañada Petition, the
non-convening by the two Houses of the Congress in joint session - is contradictory, as the
former involves a mandatory duty which the government branch or instrumentality must perform
without discretion, while the latter recognizes discretion on the part of the government branch or
instrumentality but which was exercised arbitrarily or despotically. Nevertheless, if the Court is to
adjudge the petition for certiorari alone, it still finds the same to be without merit. To reiterate, the
two Houses of the Congress decided to no longer hold a joint session only after deliberations
among their Members and putting the same to vote, in accordance with their respective rules of
procedure. Premises considered, the Congress did not gravely abuse its discretion when it did
not jointly convene upon the President's issuance of Proclamation No. 216 prior to expressing
its concurrence thereto.
WHEREFORE, the petitions are DISMISSED for lack of merit.

Jurisprudence has laid down the following requirements for a petition for mandamus to prosper: SO ORDERED.

[T]hus, a petition for mandamus will prosper if it is shown that the subject thereof is a ministerial
act or duty, and not purely discretionary on the part of the board, officer or person, and that the
petitioner has a well-defined, clear and certain right to warrant the grant thereof.

The difference between a ministerial and discretionary act has long been established. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal authority, without regard to or the
exercise of his own judgment upon the propriety or impropriety of the act done. If the law
imposes a duty upon a public officer and gives him the right to decide how or when the duty shall
be performed, such duty is discretionary and not ministerial. The duty is ministerial only when
the discharge of the same requires neither the exercise of official discretion or
judgment.92 (Emphases added.)

It is essential to the issuance of a writ of mandamus that petitioner should have a clear legal
right to the thing demanded and it must be the imperative duty of the respondent to perform the
act required. Mandamus never issues in doubtful cases. While it may not be necessary that the
ministerial duty be absolutely expressed, it must however, be clear. The writ neither confers
powers nor imposes duties. It is simply a command to exercise a power already possessed and
to perform a duty already imposed.93

Although there are jurisprudential examples of the Court issuing a writ of mandamus to compel
the fulfillment of legislative duty,94 we must distinguish the present controversy with those
previous cases. In this particular instance, the Court has no authority to compel the Senate and
the House of Representatives to convene in joint session absent a clear ministerial duty on its
part to do so under the Constitution and in complete disregard of the separate actions already
undertaken by both Houses on Proclamation No. 216, including their respective decisions to no
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 187298 July 03, 2012
JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN
AWADI, and SPO1 SATTAL H. JADJULI, Petitioners,
vs.
GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN. JUANCHO SABAN,
COL. EUGENIO CLEMEN PN, P/SUPT. JULASIRIM KASIM and P/SUPT. BIENVENIDO G.
LATAG, in their capacity as officers of the Phil. Marines and Phil. National Police,
respectively, Respondents.
DECISION
SERENO, J.:
On 15 January 2009, three members from the International Committee of the Red Cross (ICRC)
were kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu. 1 Andres Notter, a Swiss
national and head of the ICRC in Zamboanga City, Eugenio Vagni, an Italian national and ICRC
delegate, and Marie Jean Lacaba, a Filipino engineer, were purportedly inspecting a water and
sanitation project for the Sulu Provincial Jail when inspecting a water and sanitation project for
the Sulu Provincial Jail when they were seized by three armed men who were later confirmed to
be members of the Abu Sayyaf Group (ASG).2 The leader of the alleged kidnappers was
identified as Raden Abu, a former guard at the Sulu Provincial Jail. News reports linked Abu to
Albader Parad, one of the known leaders of the Abu Sayyaf.
On 21 January 2009, a task force was created by the ICRC and the Philippine National Police
(PNP), which then organized a parallel local group known as the Local Crisis Committee. 3 The
local group, later renamed Sulu Crisis Management Committee, convened under the leadership
of respondent Abdusakur Mahail Tan, the Provincial Governor of Sulu. Its armed forces
component was headed by respondents General Juancho Saban, and his deputy, Colonel
Eugenio Clemen. The PNP component was headed by respondent Police Superintendent
Bienvenido G. Latag, the Police Deputy Director for Operations of the Autonomous Region of
Muslim Mindanao (ARMM).4
Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male civilians
coming from different municipalities, who were redeployed to surrounding areas of Patikul. 5 The
organization of the CEF was embodied in a "Memorandum of Understanding" 6 entered into
between three parties: the provincial government of Sulu, represented by Governor Tan; the
Armed Forces of the Philippines, represented by Gen. Saban; and the Philippine National Police,
represented by P/SUPT. Latag. The Whereas clauses of the Memorandum alluded to the
extraordinary situation in Sulu, and the willingness of civilian supporters of the municipal mayors
to offer their services in order that "the early and safe rescue of the hostages may be achieved." 7
This Memorandum, which was labeled ‘secret’ on its all pages, also outlined the responsibilities
of each of the party signatories, as follows:
Responsibilities of the Provincial Government:
1) The Provincial Government shall source the funds and logistics needed for the
activation of the CEF;
2) The Provincial Government shall identify the Local Government Units which shall
participate in the operations and to propose them for the approval of the parties to this
agreement;
3) The Provincial Government shall ensure that there will be no unilateral action(s) by
the CEF without the knowledge and approval by both parties.
Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):
1) The AFP/PNP shall remain the authority as prescribed by law in military operations
and law enforcement;
2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance
of their assigned task(s);
3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of
operation(s);
4) The AFP/PNP shall provide the necessary support and/or assistance as called for
in the course of operation(s)/movements of the CEF.8
Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local Government,
announced to the media that government troops had cornered some one hundred and twenty
(120) Abu Sayyaf members along with the three (3) hostages.9 However, the ASG made
contact with the authorities and demanded that the military pull its troops back from the jungle
area.10 The government troops yielded and went back to their barracks; the Philippine Marines
withdrew to their camp, while police and civilian forces pulled back from the terrorists’ stronghold
by ten (10) to fifteen (15) kilometers. Threatening that one of the hostages will be beheaded, the
ASG further demanded the evacuation of the military camps and bases in the different
barangays in Jolo.11 The authorities were given no later than 2:00 o’clock in the afternoon of 31
March 2009 to comply.12
On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 (Proclamation 1-
09), declaring a state of emergency in the province of Sulu.13 It cited the kidnapping incident as a
ground for the said declaration, describing it as a terrorist act pursuant to the Human Security
Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A. 7160),
which bestows on the Provincial Governor the power to carry out emergency measures during
man-made and natural disasters and calamities, and to call upon the appropriate national law
enforcement agencies to suppress disorder and lawless violence.
In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up
checkpoints and chokepoints, conduct general search and seizures including arrests, and other
actions necessary to ensure public safety. The pertinent portion of the proclamation states:
NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I, ABDUSAKUR
MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY DECLARE A STATE
OF EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE PHILIPPINE NATIONAL
POLICE WITH THE ASSISTANCE OF THE ARMED FORCES OF THE PHILIPPINES AND THE
CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING:
1. The setting-up of checkpoints and chokepoints in the province;
2. The imposition of curfew for the entire province subject to such Guidelines as may
be issued by proper authorities;
 3. The conduct of General Search and Seizure including arrests in the pursuit of the
kidnappers and their supporters; and
4. To conduct such other actions or police operations as may be necessary to ensure
public safety.
DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS
31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14
On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to respondent
P/SUPT. Julasirim Kasim.15 Upon arriving at the police station, he was booked, and interviewed
about his relationship to Musin, Jaiton, and Julamin, who were all his deceased relatives. Upon
admitting that he was indeed related to the three, he was detained. After a few hours, former
Punong Barangay Juljahan Awadi, Hadji Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2
Marcial Hajan, SPO3 Muhilmi Ismula, Punong Barangay Alano Mohammad and jeepney driver
Abduhadi Sabdani, were also arrested.16 The affidavit17 of the apprehending officer alleged that
they were suspected ASG supporters and were being arrested under Proclamation 1-09. The
following day, 2 April 2009, the hostage Mary Jane Lacaba was released by the ASG.
On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of the
"Guidelines for the Implementation of Proclamation No. 1, Series of 2009 Declaring a State of
Emergency in the Province of Sulu."18These Guidelines suspended all Permits to Carry
Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and allowed
civilians to seek exemption from the gun ban only by applying to the Office of the Governor and
obtaining the appropriate identification cards. The said guidelines also allowed general searches
and seizures in designated checkpoints and chokepoints.
On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop Ismi,
Ahajan Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the present Petition
for Certiorari and Prohibition,19 claiming that Proclamation 1-09 was issued with grave abuse of
discretion amounting to lack or excess of jurisdiction, as it threatened fundamental freedoms
guaranteed under Article III of the 1987 Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were issued ultra
vires, and thus null and void, for violating Sections 1 and 18, Article VII of the Constitution, which
grants the President sole authority to exercise emergency powers and calling-out powers as the
chief executive of the Republic and commander-in-chief of the armed forces.20 Additionally,
petitioners claim that the Provincial Governor is not authorized by any law to create civilian
armed forces under his command, nor regulate and limit the issuances of PTCFORs to his own
private army.
In his Comment, Governor Tan contended that petitioners violated the doctrine on hierarchy of
courts when they filed the instant petition directly in the court of last resort, even if both the Court
of Appeals (CA) and the Regional Trial Courts (RTC) possessed concurrent jurisdiction with the
Supreme Court under Rule 65.21 This is the only procedural defense raised by respondent Tan.
Respondents Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT. Julasirim Kasim, and
P/SUPT. Bienvenido Latag did not file their respective Comments.1âwphi1
On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra vires, as
Governor Tan allegedly acted pursuant to Sections 16 and 465 of the Local Government Code,
which empowers the Provincial Governor to carry out emergency measures during calamities
and disasters, and to call upon the appropriate national law enforcement agencies to suppress
disorder, riot, lawless violence, rebellion or sedition.22 Furthermore, the Sangguniang
Panlalawigan of Sulu authorized the declaration of a state of emergency as evidenced by
Resolution No. 4, Series of 2009 issued on 31 March 2009 during its regular session. 23
The threshold issue in the present case is whether or not Section 465, in relation to Section 16,
of the Local Government Code authorizes the respondent governor to declare a state of
emergency, and exercise the powers enumerated under Proclamation 1-09, specifically the
conduct of general searches and seizures. Subsumed herein is the secondary question of
whether or not the provincial governor is similarly clothed with authority to convene the CEF
under the said provisions.
We grant the petition.
I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy of Courts
We first dispose of respondents’ invocation of the doctrine of hierarchy of courts which allegedly
prevents judicial review by this Court in the present case, citing for this specific purpose, Montes
v. Court of Appeals and Purok Bagong Silang Association, Inc. v. Yuipco. 24 Simply put, the
doctrine provides that where the issuance of an extraordinary writ is also within the competence
of the CA or the RTC, it is in either of these courts and not in the Supreme Court, that the
specific action for the issuance of such writ must be sought unless special and important laws
are clearly and specifically set forth in the petition. The reason for this is that this Court is a court
of last resort and must so remain if it is to perform the functions assigned to it by the Constitution
and immemorial tradition. It cannot be burdened with deciding cases in the first instance. 25
The said rule, however, is not without exception. In Chavez v. PEA-Amari,26 the Court stated:
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the
Court. The principle of hierarchy of courts applies generally to cases involving factual questions.
As it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant
case, however, raises constitutional questions of transcendental importance to the public. The
Court can resolve this case without determining any factual issue related to the case. Also, the
instant case is a petition for mandamus which falls under the original jurisdiction of the Court
under Section 5, Article VIII of the Constitution. We resolve to exercise primary jurisdiction over
the instant case.27
The instant case stems from a petition for certiorari and prohibition, over which the Supreme
Court possesses original jurisdiction.28 More crucially, this case involves acts of a public official
which pertain to restrictive custody, and is thus impressed with transcendental public importance
that would warrant the relaxation of the general rule. The Court would be remiss in its
constitutional duties were it to dismiss the present petition solely due to claims of judicial
hierarchy.
In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public importance
involved in cases that concern restrictive custody, because judicial review in these cases serves
as "a manifestation of the crucial defense of civilians ‘in police power’ cases due to the
diminution of their basic liberties under the guise of a state of emergency." 30 Otherwise, the
importance of the high tribunal as the court of last resort would be put to naught, considering the
nature of "emergency" cases, wherein the proclamations and issuances are inherently short-
lived. In finally disposing of the claim that the issue had become moot and academic, the Court
also cited transcendental public importance as an exception, stating:
Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na pangangalaga
(restrictive custody) at pagmonitor ng galaw (monitoring of movements) ng nagpepetisyon,
dedesisyunan namin ito (a) dahil sa nangingibabaw na interes ng madla na nakapaloob dito,
(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang maturuan ang
kapulisan tungkol dito.
The moot and academic principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when [the] constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the
case is capable of repetition yet evading review.
…There is no question that the issues being raised affect the public interest, involving as they do
the people’s basic rights to freedom of expression, of assembly and of the press. Moreover, the
Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules.
It has the symbolic function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by constitutional guarantees. And
lastly, respondents contested actions are capable of repetition. Certainly, the petitions are
subject to judicial review.
Evidently, the triple reasons We advanced at the start of Our ruling are justified under the
foregoing exceptions. Every bad, unusual incident where police officers figure in generates
public interest and people watch what will be done or not done to them. Lack of disciplinary
steps taken against them erode public confidence in the police institution. As petitioners
themselves assert, the restrictive custody of policemen under investigation is an existing
practice, hence, the issue is bound to crop up every now and then. The matter is capable of
repetition or susceptible of recurrence. It better be resolved now for the education and guidance
of all concerned.31 (Emphasis supplied)
Hence, the instant petition is given due course, impressed as it is with transcendental public
importance.
II. Only the President is vested with calling-out powers, as the commander-in-chief of the
Republic
i. One executive, one commander-in-chief
32
As early as Villena v. Secretary of Interior, it has already been established that there is one
repository of executive powers, and that is the President of the Republic. This means that when
Section 1, Article VII of the Constitution speaks of executive power, it is granted to the President
and no one else.33 As emphasized by Justice Jose P. Laurel, in his ponencia in Villena:
With reference to the Executive Department of the government, there is one purpose which is
crystal-clear and is readily visible without the projection of judicial searchlight, and that is the
establishment of a single, not plural, Executive. The first section of Article VII of the Constitution,
dealing with the Executive Department, begins with the enunciation of the principle that "The
executive power shall be vested in a President of the Philippines." This means that the President
of the Philippines is the Executive of the Government of the Philippines, and no other.34
Corollarily, it is only the President, as Executive, who is authorized to exercise emergency
powers as provided under Section 23, Article VI, of the Constitution, as well as what became
known as the calling-out powers under Section 7, Article VII thereof.
ii. The exceptional character of Commander-in-Chief powers dictate that they are exercised by
one president
Springing from the well-entrenched constitutional precept of One President is the notion that
there are certain acts which, by their very nature, may only be performed by the president as the
Head of the State. One of these acts or prerogatives is the bundle of Commander-in-Chief
powers to which the "calling-out" powers constitutes a portion. The President’s Emergency
Powers, on the other hand, is balanced only by the legislative act of Congress, as embodied in
the second paragraph of Section 23, Article 6 of the Constitution:
Article 6, Sec 23(2). In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as it may prescribe,
to exercise powers necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment
thereof.35
Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.36
The power to declare a state of martial law is subject to the Supreme Court’s authority to review
the factual basis thereof. 37 By constitutional fiat, the calling-out powers, which is of lesser gravity
than the power to declare martial law, is bestowed upon the President alone. As noted in Villena,
"(t)here are certain constitutional powers and prerogatives of the Chief Executive of the Nation
which must be exercised by him in person and no amount of approval or ratification will validate
the exercise of any of those powers by any other person. Such, for instance, is his power to
suspend the writ of habeas corpus and proclaim martial law x x x.38
Indeed, while the President is still a civilian, Article II, Section 339 of the Constitution mandates
that civilian authority is, at all times, supreme over the military, making the civilian president the
nation’s supreme military leader. The net effect of Article II, Section 3, when read with Article VII,
Section 18, is that a civilian President is the ceremonial, legal and administrative head of the
armed forces. The Constitution does not require that the President must be possessed of military
training and talents, but as Commander-in-Chief, he has the power to direct military operations
and to determine military strategy. Normally, he would be expected to delegate the actual
command of the armed forces to military experts; but the ultimate power is his.40 As
Commander-in-Chief, he is authorized to direct the movements of the naval and military forces
placed by law at his command, and to employ them in the manner he may deem most
effectual.41
In the case of Integrated Bar of the Philippines v. Zamora, 42 the Court had occasion to rule that
the calling-out powers belong solely to the President as commander-in-chief:
When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is
clear from the intent of the framers and from the text of the Constitution itself. The Court, thus,
cannot be called upon to overrule the President’s wisdom or substitute its own. However, this
does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. In view of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to
show that the President’s decision is totally bereft of factual basis.
There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise
of such power.43(Emphasis supplied)
Under the foregoing provisions, Congress may revoke such proclamation or suspension and the
Court may review the sufficiency of the factual basis thereof. However, there is no such
equivalent provision dealing with the revocation or review of the President’s action to call out the
armed forces. The distinction places the calling out power in a different category from the power
to declare martial law and the power to suspend the privilege of the writ of habeas corpus,
otherwise, the framers of the Constitution would have simply lumped together the three powers
and provided for their revocation and review without any qualification. 44
That the power to call upon the armed forces is discretionary on the president is clear from the
deliberation of the Constitutional Commission:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the
President as Commander-in-Chief. First, he can call out such Armed Forces as may be
necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas
corpus, then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of
habeas corpus, his judgment is subject to review. We are making it subject to review by the
Supreme Court and subject to concurrence by the National Assembly. But when he exercises
this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion
that his judgment cannot be reviewed by anybody.
xxx xxx xxx
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to
judicial review.
The reason for the difference in the treatment of the aforementioned powers highlights the intent
to grant the President the widest leeway and broadest discretion in using the power to call out
because it is considered as the lesser and more benign power compared to the power to
suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of
which involve the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by this Court.
x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his
judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or
rebellion.45 (Emphasis Supplied)
In the more recent case of Constantino, Jr. v. Cuisia,46 the Court characterized these powers as
exclusive to the President, precisely because they are of exceptional import:
These distinctions hold true to this day as they remain embodied in our fundamental law. There
are certain presidential powers which arise out of exceptional circumstances, and if exercised,
would involve the suspension of fundamental freedoms, or at least call for the supersedence of
executive prerogatives over those exercised by co-equal branches of government. The
declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the
pardoning power, notwithstanding the judicial determination of guilt of the accused, all fall within
this special class that demands the exclusive exercise by the President of the constitutionally
vested power. The list is by no means exclusive, but there must be a showing that the executive
power in question is of similar gravitas and exceptional import.47
In addition to being the commander-in-chief of the armed forces, the President also acts as the
leader of the country’s police forces, under the mandate of Section 17, Article VII of the
Constitution, which provides that, "The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully executed." During
the deliberations of the Constitutional Commission on the framing of this provision, Fr. Bernas
defended the retention of the word "control," employing the same rationale of singularity of the
office of the president, as the only Executive under the presidential form of government.48
Regarding the country’s police force, Section 6, Article XVI of the Constitution states that: "The
State shall establish and maintain one police force, which shall be national in scope and civilian
in character, to be administered and controlled by a national police commission. The authority of
local executives over the police units in their jurisdiction shall be provided by law."49
A local chief executive, such as the provincial governor, exercises operational supervision over
the police,50 and may exercise control only in day-to-day operations, viz:
Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or by law full
control of the police by the local chief executive and local executives, the mayors. By our
experience, this has spawned warlordism, bossism and sanctuaries for vices and abuses. If the
national government does not have a mechanism to supervise these 1,500 legally, technically
separate police forces, plus 61 city police forces, fragmented police system, we will have a lot of
difficulty in presenting a modern professional police force. So that a certain amount of
supervision and control will have to be exercised by the national government.
For example, if a local government, a town cannot handle its peace and order problems or police
problems, such as riots, conflagrations or organized crime, the national government may come
in, especially if requested by the local executives. Under that situation, if they come in under
such an extraordinary situation, they will be in control. But if the day-to-day business of police
investigation of crime, crime prevention, activities, traffic control, is all lodged in the mayors, and
if they are in complete operational control of the day-to-day business of police service, what the
national government would control would be the administrative aspect.
xxx xxx xxx
Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual duties
being performed by the ordinary policemen, will be under the supervision of the local
executives?
Mr. Natividad: Yes, Madam President.
xxx xxx xxx
Mr. de los Reyes: But in exceptional cases, even the operational control can be taken over by
the National Police Commission?
Mr. Natividad: If the situation is beyond the capacity of the local governments. 51 (Emphases
supplied)
Furthermore according to the framers, it is still the President who is authorized to exercise
supervision and control over the police, through the National Police Commission:
Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-in-Chief
of all the armed forces.
Mr. Natividad: Yes, Madam President.
Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not suppose
they come under the Commander-in-Chief powers of the President of the Philippines.
Mr. Natividad: They do, Madam President. By law, they are under the supervision and control of
the President of the Philippines.
Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national police.
Mr. Natividad: He is the President.
Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision that the
President is the Commander-in-Chief of all the armed forces.
Mr. Natividad: No, not under the Commander-in-Chief provision.
Mr. Rodrigo: There are two other powers of the President. The
President has control over ministries, bureaus and offices, and supervision over local
governments. Under which does the police fall, under control or under supervision?
Mr. Natividad: Both, Madam President.
Mr. Rodrigo: Control and supervision.
Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the President. 52
In the discussions of the Constitutional Commission regarding the above provision it is clear that
the framers never intended for local chief executives to exercise unbridled control over the police
in emergency situations. This is without prejudice to their authority over police units in their
jurisdiction as provided by law, and their prerogative to seek assistance from the police in day to
day situations, as contemplated by the Constitutional Commission. But as a civilian agency of
the government, the police, through the NAPOLCOM, properly comes within, and is subject to,
the exercise by the President of the power of executive control. 53
iii. The provincial governor does not possess the same calling-out powers as the President
Given the foregoing, respondent provincial governor is not endowed with the power to call upon
the armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan
exceeded his authority when he declared a state of emergency and called upon the Armed
Forces, the police, and his own Civilian Emergency Force. The calling-out powers contemplated
under the Constitution is exclusive to the President. An exercise by another official, even if he is
the local chief executive, is ultra vires, and may not be justified by the invocation of Section 465
of the Local Government Code, as will be discussed subsequently.
Respondents, however, justify this stance by stating that nowhere in the seminal case of David
v. Arroyo, which dealt squarely with the issue of the declaration of a state of emergency, does it
limit the said authority to the President alone. Respondents contend that the ruling in David
expressly limits the authority to declare a national emergency, a condition which covers the
entire country, and does not include emergency situations in local government units. 54 This claim
is belied by the clear intent of the framers that in all situations involving threats to security, such
as lawless violence, invasion or rebellion, even in localized areas, it is still the President who
possesses the sole authority to exercise calling-out powers. As reflected in the Journal of the
Constitutional Commission:
Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC DISORDER in lieu
of "invasion or rebellion." Mr. Sumulong stated that the committee could not accept the
amendment because under the first section of Section 15, the President may call out and make
use of the armed forces to prevent or suppress not only lawless violence but even invasion or
rebellion without declaring martial law. He observed that by deleting "invasion or rebellion" and
substituting PUBLIC DISORDER, the President would have to declare martial law before he can
make use of the armed forces to prevent or suppress lawless invasion or rebellion.
Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter situation where
there is some lawless violence in a small portion of the country or public disorder in another at
which times, the armed forces can be called to prevent or suppress these incidents. He noted
that the Commander-in-Chief can do so in a minor degree but he can also exercise such powers
should the situation worsen. The words "invasion or rebellion" to be eliminated on line 14 are
covered by the following sentence which provides for "invasion or rebellion." He maintained that
the proposed amendment does not mean that under such circumstances, the President cannot
call on the armed forces to prevent or suppress the same. 55 (Emphasis supplied)
III. Section 465 of the Local
Government Code cannot be invoked to justify the powers enumerated under Proclamation 1-09
Respondent governor characterized the kidnapping of the three ICRC workers as a terroristic
act, and used this incident to justify the exercise of the powers enumerated under Proclamation
1-09.56 He invokes Section 465, in relation to Section 16, of the Local Government Code, which
purportedly allows the governor to carry out emergency measures and call upon the appropriate
national law enforcement agencies for assistance. But a closer look at the said proclamation
shows that there is no provision in the Local Government Code nor in any law on which the
broad and unwarranted powers granted to the Governor may be based.
Petitioners cite the implementation of "General Search and Seizure including arrests in the
pursuit of the kidnappers and their supporters,"57 as being violative of the constitutional
proscription on general search warrants and general seizures. Petitioners rightly assert that this
alone would be sufficient to render the proclamation void, as general searches and seizures are
proscribed, for being violative of the rights enshrined in the Bill of Rights, particularly:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.58
In fact, respondent governor has arrogated unto himself powers exceeding even the martial law
powers of the President, because as the Constitution itself declares, "A state of martial law does
not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ."59
We find, and so hold, that there is nothing in the Local Government Code which justifies the acts
sanctioned under the said Proclamation. Not even Section 465 of the said Code, in relation to
Section 16, which states:
Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.
xxx xxx xxx
(b) For efficient, effective and economical governance the purpose of which is the general
welfare of the province and its inhabitants pursuant to Section 16 of this Code, the provincial
governor shall:
(1) Exercise general supervision and control over all programs, projects, services, and activities
of the provincial government, and in this connection, shall:
xxx xxx xxx
(vii) Carry out such emergency measures as may be necessary during and in the aftermath of
man-made and natural disasters and calamities;
(2) Enforce all laws and ordinances relative to the governance of the province and the exercise
of the appropriate corporate powers provided for under Section 22 of this Code, implement all
approved policies, programs, projects, services and activities of the province and, in addition to
the foregoing, shall:
xxx xxx xxx
(vi) Call upon the appropriate national law enforcement agencies to suppress disorder, riot,
lawless violence, rebellion or sedition or to apprehend violators of the law when public interest
so requires and the police forces of the component city or municipality where the disorder or
violation is happening are inadequate to cope with the situation or the violators.
Section 16. General Welfare. - Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance, and those which are essential to the
promotion of the general welfare. Within their respective territorial jurisdictions, local government
units shall ensure and support, among other things, the preservation and enrichment of culture,
promote health and safety, enhance the right of the people to a balanced ecology, encourage
and support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants. (Emphases supplied)
Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the said
provision expressly refers to calamities and disasters, whether man-made or natural. The
governor, as local chief executive of the province, is certainly empowered to enact and
implement emergency measures during these occurrences. But the kidnapping incident in the
case at bar cannot be considered as a calamity or a disaster. Respondents cannot find any legal
mooring under this provision to justify their actions.
Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two reasons.
First, the Armed Forces of the Philippines does not fall under the category of a "national law
enforcement agency," to which the National Police Commission (NAPOLCOM) and its
departments belong.
Its mandate is to uphold the sovereignty of the Philippines, support the Constitution, and defend
the Republic against all enemies, foreign and domestic. Its aim is also to secure the integrity of
the national territory.60
Second, there was no evidence or even an allegation on record that the local police forces were
inadequate to cope with the situation or apprehend the violators. If they were inadequate, the
recourse of the provincial governor was to ask the assistance of the Secretary of Interior and
Local Government, or such other authorized officials, for the assistance of national law
enforcement agencies.
The Local Government Code does not involve the diminution of central powers inherently vested
in the National Government, especially not the prerogatives solely granted by the Constitution to
the President in matters of security and defense.
The intent behind the powers granted to local government units is fiscal, economic, and
administrative in nature.1âwphi1The Code is concerned only with powers that would make the
delivery of basic services more effective to the constituents,61 and should not be unduly
stretched to confer calling-out powers on local executives.
In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of powers is
a step towards the autonomy of local government units (LGUs), and is actually an experiment
whose success heavily relies on the power of taxation of the LGUs. The underpinnings of the
Code can be found in Section 5, Article II of the 1973 Constitution, which allowed LGUs to create
their own sources of revenue.62 During the interpellation made by Mr. Tirol addressed to Mr. de
Pedro, the latter emphasized that "Decentralization is an administrative concept and the process
of shifting and delegating power from a central point to subordinate levels to promote
independence, responsibility, and quicker decision-making. … (I)t does not involve any transfer
of final authority from the national to field levels, nor diminution of central office powers and
responsibilities. Certain government agencies, including the police force, are exempted from the
decentralization process because their functions are not inherent in local government units." 63
IV. Provincial governor is not authorized to convene CEF
Pursuant to the national policy to establish one police force, the organization of private citizen
armies is proscribed. Section 24 of Article XVIII of the Constitution mandates that:
Private armies and other armed groups not recognized by duly constituted authority shall be
dismantled. All paramilitary forces including Civilian Home Defense Forces (CHDF) not
consistent with the citizen armed force established in this Constitution, shall be dissolved or,
where appropriate, converted into the regular force.
Additionally, Section 21of Article XI states that, "The preservation of peace and order within the
regions shall be the responsibility of the local police agencies which shall be organized,
maintained, supervised, and utilized in accordance with applicable laws. The defense and
security of the regions shall be the responsibility of the National Government."
Taken in conjunction with each other, it becomes clear that the Constitution does not authorize
the organization of private armed groups similar to the CEF convened by the respondent
Governor. The framers of the Constitution were themselves wary of armed citizens’ groups, as
shown in the following proceedings:
MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary force
operating under the cloak, under the mantle of legality is creating a lot of problems precisely by
being able to operate as an independent private army for many regional warlords. And at the
same time, this I think has been the thrust, the intent of many of the discussions and objections
to the paramilitary units and the armed groups.
MR. PADILLA: My proposal covers two parts: the private armies of political warlords and other
armed torces not recognized by constituted authority which shall be dismantled and dissolved. In
my trips to the provinces, I heard of many abuses committed by the CHDF (Civilian Home
Defense Forces), specially in Escalante, Negros Occidental. But I do not know whether a
particular CHDF is approved or authorized by competent authority. If it is not authorized, then
the CHDF will have to be dismantled. If some CHDFs, say in other provinces, are authorized by
constituted authority, by the Armed Forces of the Philippines, through the Chief of Staff or the
Minister of National Defense, if they are recognized and authorized, then they will not be
dismantled. But I cannot give a categorical answer to any specific CHDF unit, only the principle
that if they are armed forces which are not authorized, then they should be
dismantled. 64 (Emphasis supplied)

Thus, with the discussions in the Constitutional Commission as guide, the creation of the Civilian
Emergency Force (CEF) in the present case, is also invalid.

WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding

respondents to desist from further proceedings m implementing Proclamation No. 1, Series of
2009, and its Implementing Guidelines. The said proclamation and guidelines are hereby
declared NULL and VOID for having been issued in grave abuse of discretion, amounting to lack
or excess of jurisdiction.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 206666 January 21, 2015
ATTY. ALICIA RISOS-VIDAL, Petitioner,
ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH EJERCITO ESTRADA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to Rule 65, both
of the Revised Rules of Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which essentially prays
for the issuance of the writ of certiorari annulling and setting aside the April 1, 2013 1 and April
23, 20132 Resolutions of the Commission on Elections (COMELEC), Second Division and En
bane, respectively, in SPA No. 13-211 (DC), entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito
Estrada" for having been rendered with grave abuse of discretion amounting to lack or excess of
jurisdiction; and (2) a Petition-in-Intervention3 filed by Alfredo S. Lim (Lim), wherein he prays to
be declared the 2013 winning candidate for Mayor of the City of Manila in view of private
respondent former President Joseph Ejercito Estrada’s (former President Estrada)
disqualification to run for and hold public office.
The Facts
The salient facts of the case are as follows:
On September 12, 2007, the Sandiganbayan convicted former President Estrada, a former
President of the Republic of the Philippines, for the crime of plunder in Criminal Case No. 26558,
entitled "People of the Philippines v. Joseph Ejercito Estrada, et al." The dispositive part of the
graft court’s decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No.
26558 finding the accused, Former President Joseph Ejercito Estrada, GUILTY beyond
reasonable doubt of the crime of PLUNDER, defined in and penalized by Republic Act No. 7080,
as amended. On the other hand, for failure of the prosecution to prove and establish their guilt
beyond reasonable doubt, the Court finds the accused Jose "Jinggoy" Estrada and Atty. Edward
S. Serapio NOT GUILTY of the crime of plunder, and accordingly, the Court hereby orders their
ACQUITTAL.
The penalty imposable for the crime of plunder under Republic Act No. 7080, as amended by
Republic Act No. 7659, is Reclusion Perpetua to Death. There being no aggravating or
mitigating circumstances, however, the lesser penalty shall be applied in accordance with Article
63 of the Revised Penal Code. Accordingly, the accused Former President Joseph Ejercito
Estrada is hereby sentenced to suffer the penalty of Reclusion Perpetua and the accessory
penalties of civil interdiction during the period of sentence and perpetual absolute
disqualification.
The period within which accused Former President Joseph Ejercito Estrada has been under
detention shall be credited to him in full as long as he agrees voluntarily in writing to abide by the
same disciplinary rules imposed upon convicted prisoners.
Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act
No. 7659, the Court hereby declares the forfeiture in favor of the government of the following:
(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred Ninety[-]One
Thousand Pesos (₱545,291,000.00), with interest and income earned, inclusive of the
amount of Two Hundred Million Pesos (₱200,000,000.00), deposited in the name and
account of the Erap Muslim Youth Foundation.
(2) The amount of One Hundred Eighty[-]Nine Million Pesos (₱189,000,000.00),
inclusive of interests and income earned, deposited in the Jose Velarde account.
(3) The real property consisting of a house and lot dubbed as "Boracay Mansion"
located at #100 11th Street, New Manila, Quezon City.
The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio are
hereby ordered cancelled and released to the said accused or their duly authorized
representatives upon presentation of the original receipt evidencing payment thereof and subject
to the usual accounting and auditing procedures. Likewise, the hold-departure orders issued
against the said accused are hereby recalled and declared functus oficio. 4
On October 25, 2007, however, former President Gloria Macapagal Arroyo (former President
Arroyo) extended executive clemency, by way of pardon, to former President Estrada. The full
text of said pardon states:
MALACAÑAN PALACE
MANILA
By the President of the Philippines
PARDON
WHEREAS, this Administration has a policy of releasing inmates who have reached the age of
seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half years,
WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective
position or office,
IN VIEW HEREOF and pursuant to the authority conferred upon me by the Constitution, I hereby
grant executive clemency to JOSEPH EJERCITO ESTRADA, convicted by the Sandiganbayan
of Plunder and imposed a penalty of Reclusion Perpetua. He is hereby restored to his civil and
political rights.
The forfeitures imposed by the Sandiganbayan remain in force and in full, including all writs and
processes issued by the Sandiganbayan in pursuance hereof, except for the bank account(s) he
owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall take
effect.
Given under my hand at the City of Manila, this 25th Day of October, in the year of Our Lord, two
thousand and seven.
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary5
On October 26, 2007, at 3:35 p.m., former President Estrada "received and accepted" 6 the
pardon by affixing his signature beside his handwritten notation thereon.
On November 30, 2009, former President Estrada filed a Certificate of Candidacy7 for the
position of President. During that time, his candidacy earned three oppositions in the
COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny Due Course and Cancel Certificate of
Candidacy" filed by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028 (DC), a petition
for "Disqualification as Presidential Candidate" filed by Evilio C. Pormento (Pormento); and (3)
SPA No. 09-104 (DC), a "Petition to Disqualify Estrada Ejercito, Joseph M.from Running as
President due to Constitutional Disqualification and Creating Confusion to the Prejudice of
Estrada, Mary Lou B" filed by Mary Lou Estrada. In separate Resolutions 8 dated January 20,
2010 by the COMELEC, Second Division, however, all three petitions were effectively dismissed
on the uniform grounds that (i) the Constitutional proscription on reelection applies to a sitting
president; and (ii) the pardon granted to former President Estrada by former President Arroyo
restored the former’s right to vote and be voted for a public office. The subsequent motions for
reconsideration thereto were denied by the COMELEC En banc.
After the conduct of the May 10, 2010 synchronized elections, however, former President
Estrada only managed to garner the second highest number of votes.
Of the three petitioners above-mentioned, only Pormento sought recourse to this Court and filed
a petition for certiorari, which was docketed as G.R. No. 191988, entitled "Atty. Evilio C.
Pormento v. Joseph ‘ERAP’ Ejercito Estrada and Commission on Elections." But in a
Resolution9 dated August 31, 2010, the Court dismissed the aforementioned petition on the
ground of mootness considering that former President Estrada lost his presidential bid.
On October 2, 2012, former President Estrada once more ventured into the political arena, and
filed a Certificate of Candidacy,10 this time vying for a local elective post, that ofthe Mayor of the
City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for Disqualification
against former President Estrada before the COMELEC. The petition was docketed as SPA No.
13-211 (DC). Risos Vidal anchored her petition on the theory that "[Former President Estrada] is
Disqualified to Run for Public Office because of his Conviction for Plunder by the
Sandiganbayan in Criminal Case No. 26558 entitled ‘People of the Philippines vs. Joseph
Ejercito Estrada’ Sentencing Him to Suffer the Penalty of Reclusion Perpetuawith Perpetual
Absolute Disqualification."11 She relied on Section 40 of the Local Government Code (LGC), in
relation to Section 12 of the Omnibus Election Code (OEC), which state respectively, that:
Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following persons are disqualified from running for any
elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one (1) year or more of imprisonment, within two (2) years
after serving sentence; (b) Those removed from office as a result of an administrative
case;
(c) Those convicted by final judgment for violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of this Code;
and
(g) The insane or feeble minded. (Emphasis supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final judgmentfor subversion, insurrection,
rebellion, or for any offense for which he has been sentenced to a penalty of more than eighteen
months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to
hold any public office, unless he has been given plenary pardon or granted amnesty. (Emphases
supplied.)
In a Resolution dated April 1, 2013,the COMELEC, Second Division, dismissed the petition for
disqualification, the fallo of which reads:
WHEREFORE, premises considered, the instant petition is hereby DISMISSED for utter lack of
merit.12
The COMELEC, Second Division, opined that "[h]aving taken judicial cognizance of the
consolidated resolution for SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and the 10 May
2010 En Banc resolution affirming it, this Commission will not be labor the controversy further.
Moreso, [Risos-Vidal] failed to present cogent proof sufficient to reverse the standing
pronouncement of this Commission declaring categorically that [former President Estrada’s] right
to seek public office has been effectively restored by the pardon vested upon him by former
President Gloria M. Arroyo. Since this Commission has already spoken, it will no longer engage
in disquisitions of a settled matter lest indulged in wastage of government resources." 13
The subsequent motion for reconsideration filed by Risos-Vidal was denied in a Resolution
dated April 23, 2013.
On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the present petition. She
presented five issues for the Court’s resolution, to wit:
I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT
RESPONDENT ESTRADA’S PARDON WAS NOT CONDITIONAL;
II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT FINDING THAT
RESPONDENT ESTRADA IS DISQUALIFIED TO RUN AS MAYOR OF MANILA
UNDER SEC. 40 OF THE LOCAL GOVERNMENTCODE OF 1991 FOR HAVING
BEEN CONVICTED OF PLUNDER, AN OFFENSE INVOLVING MORAL
TURPITUDE;
III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING THE
PETITION FOR DISQUALIFICATION ON THE GROUND THAT THE CASE
INVOLVES THE SAME OR SIMILAR ISSUES IT ALREADY RESOLVED IN THE
CASES OF "PORMENTO VS. ESTRADA", SPA NO. 09-028 (DC) AND IN "RE:
PETITION TO DISQUALIFY ESTRADA EJERCITO, JOSEPH M. FROM RUNNING
AS PRESIDENT, ETC.," SPA NO. 09-104 (DC);
 IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT RULING THAT
RESPONDENT ESTRADA’S PARDON NEITHER RESTORED HIS RIGHT OF
SUFFRAGE NOR REMITTED HIS PERPETUAL ABSOLUTE DISQUALIFICATION
FROM SEEKING PUBLIC OFFICE; and
V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT HAVING
EXERCISED ITS POWER TO MOTU PROPRIO DISQUALIFY RESPONDENT
ESTRADA IN THE FACE OF HIS PATENT DISQUALIFICATION TO RUN FOR
PUBLIC OFFICE BECAUSE OF HIS PERPETUAL AND ABSOLUTE
DISQUALIFICATION TO SEEK PUBLIC OFFICE AND TO VOTE RESULTING FROM
HIS CRIMINAL CONVICTION FOR PLUNDER.14
While this case was pending beforethe Court, or on May 13, 2013, the elections were conducted
as scheduled and former President Estrada was voted into office with 349,770 votes cast in his
favor. The next day, the local board of canvassers proclaimed him as the duly elected Mayor of
the City of Manila.
On June 7, 2013, Lim, one of former President Estrada’s opponents for the position of Mayor,
moved for leave to intervene in this case. His motion was granted by the Court in a
Resolution15 dated June 25, 2013. Lim subscribed to Risos-Vidal’s theory that former President
Estrada is disqualified to run for and hold public office as the pardon granted to the latter failed
to expressly remit his perpetual disqualification. Further, given that former President Estrada is
disqualified to run for and hold public office, all the votes obtained by the latter should be
declared stray, and, being the second placer with 313,764 votes to his name, he (Lim) should be
declared the rightful winning candidate for the position of Mayor of the City of Manila.
The Issue
Though raising five seemingly separate issues for resolution, the petition filed by Risos-Vidal
actually presents only one essential question for resolution by the Court, that is, whether or not
the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction
in ruling that former President Estrada is qualified to vote and be voted for in public office as a
result of the pardon granted to him by former President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing out that the pardon granted to
former President Estrada was conditional as evidenced by the latter’s express acceptance
thereof. The "acceptance," she claims, is an indication of the conditional natureof the pardon,
with the condition being embodied in the third Whereas Clause of the pardon, i.e., "WHEREAS,
Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office."
She explains that the aforementioned commitment was what impelled former President Arroyo to
pardon former President Estrada, without it, the clemency would not have been extended. And
any breach thereof, that is, whenformer President Estrada filed his Certificate of Candidacy for
President and Mayor of the City of Manila, he breached the condition of the pardon; hence, "he
ought to be recommitted to prison to serve the unexpired portion of his sentence x x x and
disqualifies him as a candidate for the mayoralty [position] of Manila."16
Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former President
Estrada mustbe disqualified from running for and holding public elective office is actually the
proscription found in Section 40 of the LGC, in relation to Section 12 ofthe OEC. She argues that
the crime of plunder is both an offense punishable by imprisonment of one year or more and
involving moral turpitude; such that former President Estrada must be disqualified to run for and
hold public elective office.
Even with the pardon granted to former President Estrada, however, Risos-Vidal insists that the
same did not operate to make available to former President Estrada the exception provided
under Section 12 of the OEC, the pardon being merely conditional and not absolute or plenary.
Moreover, Risos-Vidal puts a premium on the ostensible requirements provided under Articles
36 and 41 of the Revised Penal Code, to wit:
ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold
publicoffice, or the right of suffrage, unless such rights be expressly restored by the terms of the
pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The
penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon. (Emphases
supplied.)
She avers that in view of the foregoing provisions of law, it is not enough that a pardon makes a
general statement that such pardon carries with it the restoration of civil and political rights. By
virtue of Articles 36 and 41, a pardon restoring civil and political rights without categorically
making mention what specific civil and political rights are restored "shall not work to restore the
right to hold public office, or the right of suffrage; nor shall it remit the accessory penalties of civil
interdiction and perpetual absolute disqualification for the principal penalties of reclusion
perpetua and reclusion temporal."17 In other words, she considers the above constraints as
mandatory requirements that shun a general or implied restoration of civil and political rights in
pardons.
Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and
Florentino P. Feliciano in Monsanto v. Factoran, Jr.18 to endorse her position that "[t]he
restoration of the right to hold public office to one who has lost such right by reason of conviction
in a criminal case, but subsequently pardoned, cannot be left to inference, no matter how
intensely arguable, but must be statedin express, explicit, positive and specific language."
Applying Monsantoto former President Estrada’s case, Risos-Vidal reckons that "such express
restoration is further demanded by the existence of the condition in the [third] [W]hereas [C]lause
of the pardon x x x indubitably indicating that the privilege to hold public office was not restored
to him."19
On the other hand, the Office ofthe Solicitor General (OSG) for public respondent COMELEC,
maintains that "the issue of whether or not the pardon extended to [former President Estrada]
restored his right to run for public office had already been passed upon by public respondent
COMELEC way back in 2010 via its rulings in SPA Nos. 09-024, 09-028 and 09-104, there is no
cogent reason for it to reverse its standing pronouncement and declare [former President
Estrada] disqualified to run and be voted as mayor of the City of Manila in the absence of any
new argument that would warrant its reversal. To be sure, public respondent COMELEC
correctly exercised its discretion in taking judicial cognizance of the aforesaid rulings which are
known toit and which can be verified from its own records, in accordance with Section 2, Rule
129 of the Rules of Court on the courts’ discretionary power to take judicial notice of matters
which are of public knowledge, orare capable of unquestionable demonstration, or ought to be
known to them because of their judicial functions."20
Further, the OSG contends that "[w]hile at first glance, it is apparent that [former President
Estrada’s] conviction for plunder disqualifies him from running as mayor of Manila under Section
40 of the [LGC], the subsequent grant of pardon to him, however, effectively restored his right to
run for any public office."21 The restoration of his right to run for any public office is the exception
to the prohibition under Section 40 of the LGC, as provided under Section 12 of the OEC. As to
the seeming requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the express
restoration/remission of a particular right to be stated in the pardon, the OSG asserts that "an
airtight and rigid interpretation of Article 36 and Article 41 of the [RPC] x x x would be stretching
too much the clear and plain meaning of the aforesaid provisions."22 Lastly, taking into
consideration the third Whereas Clause of the pardon granted to former President Estrada, the
OSG supports the position that it "is not an integral part of the decree of the pardon and cannot
therefore serve to restrict its effectivity."23
Thus, the OSG concludes that the "COMELEC did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the assailed Resolutions." 24
For his part, former President Estrada presents the following significant arguments to defend his
stay in office: that "the factual findings of public respondent COMELEC, the Constitutional body
mandated to administer and enforce all laws relative to the conduct of the elections, [relative to
the absoluteness of the pardon, the effects thereof, and the eligibility of former President Estrada
to seek public elective office] are binding [and conclusive] on this Honorable Supreme Court;"
that he "was granted an absolute pardon and thereby restored to his full civil and political rights,
including the right to seek public elective office such as the mayoral (sic) position in the City of
Manila;" that "the majority decision in the case of Salvacion A. Monsanto v. Fulgencio S.
Factoran, Jr.,which was erroneously cited by both Vidal and Lim as authority for their respective
claims, x x x reveal that there was no discussion whatsoever in the ratio decidendi of the
Monsanto case as to the alleged necessity for an expressed restoration of the ‘right to hold
public office in the pardon’ as a legal prerequisite to remove the subject perpetual special
disqualification;" that moreover, the "principal question raised in this Monsanto case is whether
or not a public officer, who has been granted an absolute pardon by the Chief Executive, is
entitled to reinstatement toher former position without need of a new appointment;" that his
"expressed acceptance [of the pardon] is not proof that the pardon extended to [him] is
conditional and not absolute;" that this case is a mere rehash of the casesfiled against him
during his candidacy for President back in 2009-2010; that Articles 36 and 41 of the Revised
Penal Code "cannot abridge or diminish the pardoning power of the President expressly granted
by the Constitution;" that the text of the pardon granted to him substantially, if not fully, complied
with the requirement posed by Article 36 of the Revised Penal Code as it was categorically
stated in the said document that he was "restored to his civil and political rights;" that since
pardon is an act of grace, it must be construed favorably in favor of the grantee; 25 and that his
disqualification will result in massive disenfranchisement of the hundreds of thousands of
Manileños who voted for him.26
The Court's Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon that fully restored allhis civil and
political rights, which naturally includes the right to seek public elective office, the focal point of
this controversy. The wording of the pardon extended to former President Estrada is complete,
unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised
Penal Code. The only reasonable, objective, and constitutional interpretation of the language of
the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code.
Recall that the petition for disqualification filed by Risos-Vidal against former President Estrada,
docketed as SPA No. 13-211 (DC), was anchored on Section 40 of the LGC, in relation to
Section 12 of the OEC, that is, having been convicted of a crime punishable by imprisonment of
one year or more, and involving moral turpitude, former President Estrada must be disqualified
to run for and hold public elective office notwithstanding the fact that he is a grantee of a pardon
that includes a statement expressing "[h]e is hereby restored to his civil and political rights."
Risos-Vidal theorizes that former President Estrada is disqualified from running for Mayor of
Manila inthe May 13, 2013 Elections, and remains disqualified to hold any local elective post
despite the presidential pardon extended to him in 2007 by former President Arroyo for the
reason that it (pardon) did not expressly provide for the remission of the penalty of perpetual
absolute disqualification, particularly the restoration of his (former President Estrada) right to
vote and bevoted upon for public office. She invokes Articles 36 and 41 of the Revised Penal
Code as the foundations of her theory.
It is insisted that, since a textual examination of the pardon given to and accepted by former
President Estrada does not actually specify which political right is restored, it could be inferred
that former President Arroyo did not deliberately intend to restore former President Estrada’s
rights of suffrage and to hold public office, orto otherwise remit the penalty of perpetual absolute
disqualification. Even if her intention was the contrary, the same cannot be upheld based on the
pardon’s text.
The pardoning power of the President cannot be limited by legislative action.
The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C,
provides that the President of the Philippines possesses the power to grant pardons, along with
other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws,
rules, and regulations shall be granted by the President without the favorable recommendation
of the Commission.
It is apparent from the foregoing constitutional provisions that the only instances in which the
President may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have
not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and
regulations in which there was no favorable recommendation coming from the COMELEC.
Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit
the pardoning power of the President.
In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under the 1935
Constitution,wherein the provision granting pardoning power to the President shared similar
phraseology with what is found in the present 1987 Constitution, the Court then unequivocally
declared that "subject to the limitations imposed by the Constitution, the pardoning power cannot
be restricted or controlled by legislative action." The Court reiterated this pronouncement in
Monsanto v. Factoran, Jr.29 thereby establishing that, under the present Constitution, "a pardon,
being a presidential prerogative, should not be circumscribed by legislative action." Thus, it is
unmistakably the long-standing position of this Court that the exercise of the pardoning power is
discretionary in the President and may not be interfered with by Congress or the Court, except
only when it exceeds the limits provided for by the Constitution.
This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts of
Congress, specifically through legislation, was strongly adhered to by an overwhelming majority
of the framers of the 1987 Constitution when they flatly rejected a proposal to carve out an
exception from the pardoning power of the President in the form of "offenses involving graft and
corruption" that would be enumerated and defined by Congress through the enactment of a law.
The following is the pertinent portion lifted from the Record of the Commission (Vol. II):
MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an amendment on the
same section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for violations of corrupt practices laws may be
limited by legislation.
I suggest that this be deletedon the grounds that, first, violations of corrupt practices may include
a very little offense like stealing ₱10; second, which I think is more important, I get the
impression, rightly or wrongly, that subconsciously we are drafting a constitution on the premise
that all our future Presidents will bebad and dishonest and, consequently, their acts will be
lacking in wisdom. Therefore, this Article seems to contribute towards the creation of an anti-
President Constitution or a President with vast responsibilities but no corresponding power
except to declare martial law. Therefore, I request that these lines be deleted.
MR. REGALADO. Madam President,may the Committee react to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution of Commissioner Davide because of
the fact that similar to the provisions on the Commission on Elections, the recommendation of
that Commission is required before executive clemency isgranted because violations of the
election laws go into the very political life of the country.
With respect to violations of our Corrupt Practices Law, we felt that it is also necessary to have
that subjected to the same condition because violation of our Corrupt Practices Law may be of
such magnitude as to affect the very economic systemof the country. Nevertheless, as a
compromise, we provided here that it will be the Congress that will provide for the classification
as to which convictions will still require prior recommendation; after all, the Congress could take
into account whether or not the violation of the Corrupt Practices Law is of such magnitude as to
affect the economic life of the country, if it is in the millions or billions of dollars. But I assume the
Congress in its collective wisdom will exclude those petty crimes of corruption as not to require
any further stricture on the exercise of executive clemency because, of course, there is a whale
of a difference if we consider a lowly clerk committing malversation of government property or
funds involving one hundred pesos. But then, we also anticipate the possibility that the corrupt
practice of a public officer is of such magnitude as to have virtually drained a substantial portion
of the treasury, and then he goes through all the judicial processes and later on, a President who
may have close connections with him or out of improvident compassion may grant clemency
under such conditions. That is why we left it to Congress to provide and make a classification
based on substantial distinctions between a minor act of corruption or an act of substantial
proportions. SR. TAN. So, why do we not just insert the word GROSS or GRAVE before the
word "violations"?
MR. REGALADO. We feel that Congress can make a better distinction because "GRAVE" or
"GROSS" can be misconstrued by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed amendment?
THE PRESIDENT. Please proceed.
MR. RODRIGO. The power to grant executive clemency is essentially an executive power, and
that is precisely why it is called executive clemency. In this sentence, which the amendment
seeks to delete, an exception is being made. Congress, which is the legislative arm, is allowed
to intrude into this prerogative of the executive. Then it limits the power of Congress to subtract
from this prerogative of the President to grant executive clemency by limiting the power of
Congress to only corrupt practices laws. There are many other crimes more serious than these.
Under this amendment, Congress cannot limit the power of executive clemency in cases of drug
addiction and drug pushing which are very, very serious crimes that can endanger the State;
also, rape with murder, kidnapping and treason. Aside from the fact that it is a derogation of the
power of the President to grant executive clemency, it is also defective in that it singles out just
one kind of crime. There are far more serious crimes which are not included.
MR. REGALADO. I will just make one observation on that. We admit that the pardoning power is
anexecutive power. But even in the provisions on the COMELEC, one will notice that
constitutionally, it is required that there be a favorable recommendation by the Commission on
Elections for any violation of election laws.
At any rate, Commissioner Davide, as the principal proponent of that and as a member of the
Committee, has explained in the committee meetings we had why he sought the inclusion of this
particular provision. May we call on Commissioner Davide to state his position.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am constrained to rise to object to the proposal. We have just approved the
Article on Accountability of Public Officers. Under it, it is mandated that a public office is a public
trust, and all government officers are under obligation to observe the utmost of responsibility,
integrity, loyalty and efficiency, to lead modest lives and to act with patriotism and justice.
In all cases, therefore, which would go into the verycore of the concept that a public office is a
public trust, the violation is itself a violation not only of the economy but the moral fabric of public
officials. And that is the reason we now want that if there is any conviction for the violation of the
Anti-Graft and Corrupt Practices Act, which, in effect, is a violation of the public trust character of
the public office, no pardon shall be extended to the offender, unless some limitations are
imposed.
Originally, my limitation was, it should be with the concurrence of the convicting court, but the
Committee left it entirely to the legislature to formulate the mechanics at trying, probably, to
distinguish between grave and less grave or serious cases of violation of the Anti-Graft and
Corrupt Practices Act. Perhaps this is now the best time, since we have strengthened the Article
on Accountability of Public Officers, to accompany it with a mandate that the President’s right to
grant executive clemency for offenders or violators of laws relating to the concept of a public
office may be limited by Congress itself.
MR. SARMIENTO. Madam President.
THE PRESIDENT. Commissioner Sarmiento is recognized.
MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.
Madam President, over and over again, we have been saying and arguing before this
Constitutional Commission that we are emasculating the powers of the presidency, and this
provision to me is another clear example of that. So, I speak against this provision. Even the
1935 and the 1973 Constitutions do not provide for this kind of provision.
I am supporting the amendment by deletion of Commissioner Tan.
MR. ROMULO. Commissioner Tingson would like to be recognized.
THE PRESIDENT. Commissioner Tingson is recognized.
MR. TINGSON. Madam President, I am also in favor of the amendment by deletion because I
am in sympathy with the stand of Commissioner Francisco "Soc" Rodrigo. I do believe and we
should remember that above all the elected or appointed officers of our Republic, the leader is
the President. I believe that the country will be as the President is, and if we systematically
emasculate the power of this presidency, the time may come whenhe will be also handcuffed
that he will no longer be able to act like he should be acting.
So, Madam President, I am in favor of the deletion of this particular line.
MR. ROMULO. Commissioner Colayco would like to be recognized.
THE PRESIDENT. Commissioner Colayco is recognized.
MR. COLAYCO. Thank you very much, Madam President.
I seldom rise here to object to or to commend or to recommend the approval of proposals, but
now I find that the proposal of Commissioner Tan is worthy of approval of this body.
Why are we singling out this particular offense? There are other crimes which cast a bigger blot
on the moral character of the public officials.
Finally, this body should not be the first one to limit the almost absolute power of our Chief
Executive in deciding whether to pardon, to reprieve or to commute the sentence rendered by
the court.
I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will be
Commissioner Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been called the
Anti-Graft Court, so if this is allowed to stay, it would mean that the President’s power togrant
pardon or reprieve will be limited to the cases decided by the Anti-Graft Court, when as already
stated, there are many provisions inthe Revised Penal Code that penalize more serious
offenses.
Moreover, when there is a judgment of conviction and the case merits the consideration of the
exercise of executive clemency, usually under Article V of the Revised Penal Code the judge will
recommend such exercise of clemency. And so, I am in favor of the amendment proposed by
Commissioner Tan for the deletion of this last sentence in Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is recognized.
MR. NATIVIDAD. I am also against this provision which will again chip more powers from the
President. In case of other criminals convicted in our society, we extend probation to them while
in this case, they have already been convicted and we offer mercy. The only way we can offer
mercy to them is through this executive clemency extended to them by the President. If we still
close this avenue to them, they would be prejudiced even worse than the murderers and the
more vicious killers in our society. I do not think they deserve this opprobrium and punishment
under the new Constitution.
I am in favor of the proposed amendment of Commissioner Tan.
MR. ROMULO. We are ready tovote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President, prefers to submit this to the floor and also
because of the objection of the main proponent, Commissioner Davide. So we feel that the
Commissioners should vote on this question.
VOTING
THE PRESIDENT. As many as are in favor of the proposed amendment of Commissioner Tan to
delete the last sentence of Section 17 appearing on lines 7, 8 and 9, please raise their hand.
(Several Members raised their hand.)
As many as are against, please raise their hand. (Few Members raised their hand.)
The results show 34 votes in favor and 4 votes against; the amendment is
approved.30 (Emphases supplied.)
The proper interpretation of Articles
36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal
Code cannot, in any way, serve to abridge or diminish the exclusive power and prerogative of
the President to pardon persons convicted of violating penal statutes.
The Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles contain specific
textual commands which must be strictly followed in order to free the beneficiary of presidential
grace from the disqualifications specifically prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code provides:
ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold
publicoffice, or the right of suffrage, unless such rights be expressly restored by the terms of the
pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The
penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon. (Emphases
supplied.)
A rigid and inflexible reading of the above provisions of law, as proposed by Risos-Vidal, is
unwarranted, especially so if it will defeat or unduly restrict the power of the President to grant
executive clemency.
It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free
from ambiguity, it must be given its literal meaning and applied without attempted interpretation.
Verba legis non est recedendum. From the words of a statute there should be no departure. 31 It
is this Court’s firm view that the phrase in the presidential pardon at issue which declares that
former President Estrada "is hereby restored to his civil and political rights" substantially
complies with the requirement of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was no express
remission and/or restoration of the rights of suffrage and/or to hold public office in the pardon
granted to former President Estrada, as required by Articles 36 and 41 of the Revised Penal
Code.
Justice Leonen posits in his Dissent that the aforementioned codal provisions must be followed
by the President, as they do not abridge or diminish the President’s power to extend clemency.
He opines that they do not reduce the coverage of the President’s pardoning power. Particularly,
he states:
Articles 36 and 41 refer only to requirements of convention or form. They only provide a
procedural prescription. They are not concerned with areas where or the instances when the
President may grant pardon; they are only concerned with how he or she is to exercise such
power so that no other governmental instrumentality needs to intervene to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the pardon
the restoration of the rights of suffrage and to hold public office, or the remission of the
accessory penalty of perpetual absolute disqualification,he or she should do so expressly.
Articles 36 and 41 only ask that the President state his or her intentions clearly, directly, firmly,
precisely, and unmistakably. To belabor the point, the President retains the power to make such
restoration or remission, subject to a prescription on the manner by which he or she is to state
it.32
With due respect, I disagree with the overbroad statement that Congress may dictate as to how
the President may exercise his/her power of executive clemency. The form or manner by which
the President, or Congress for that matter, should exercise their respective Constitutional
powers or prerogatives cannot be interfered with unless it is so provided in the Constitution. This
is the essence of the principle of separation of powers deeply ingrained in our system of
government which "ordains that each of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally allocated
sphere."33 Moreso, this fundamental principle must be observed if noncompliance with the form
imposed by one branch on a co-equal and coordinate branch will result into the diminution of an
exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that
will give full effect to the executive clemency granted by the President, instead of indulging in an
overly strict interpretation that may serve to impair or diminish the import of the pardon which
emanated from the Office of the President and duly signed by the Chief Executive
himself/herself. The said codal provisions must be construed to harmonize the power of
Congress to define crimes and prescribe the penalties for such crimes and the power of the
President to grant executive clemency. All that the said provisions impart is that the pardon of
the principal penalty does notcarry with it the remission of the accessory penalties unless the
President expressly includes said accessory penalties in the pardon. It still recognizes the
Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the
principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and
41 only clarify the effect of the pardon so decided upon by the President on the penalties
imposedin accordance with law.
A close scrutiny of the text of the pardon extended to former President Estrada shows that both
the principal penalty of reclusion perpetua and its accessory penalties are included in the
pardon. The first sentence refers to the executive clemency extended to former President
Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of
reclusion perpetua. The latter is the principal penalty pardoned which relieved him of
imprisonment. The sentence that followed, which states that "(h)e is hereby restored to his civil
and political rights," expressly remitted the accessory penalties that attached to the principal
penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the Revised Penal
Code, it is indubitable from the textof the pardon that the accessory penalties of civil interdiction
and perpetual absolute disqualification were expressly remitted together with the principal
penalty of reclusion perpetua.
In this jurisdiction, the right toseek public elective office is recognized by law as falling under the
whole gamut of civil and political rights.
Section 5 of Republic Act No. 9225,34 otherwise known as the "Citizenship Retention and
Reacquisition Act of 2003," reads as follows:
Section 5. Civil and Political Rights and Liabilities.– Those who retain or reacquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet the requirements under Section
1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas
Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualifications
for holding such public office as required by the Constitution and existing laws and, at
the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized to
administer an oath;
(3) Those appointed to any public office shall subscribe and swear an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities prior to
their assumption of office: Provided, That they renounce their oath of allegiance to the
country where they took that oath; (4) Those intending to practice their profession in
the Philippines shall apply with the proper authority for a license or permit to engage in
such practice; and
(5) That right to vote or be elected or appointed to any public office in the Philippines
cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of
which theyare naturalized citizens; and/or
(b) are in active service as commissioned or non commissioned officers in
the armed forces of the country which they are naturalized citizens.
(Emphases supplied.)
No less than the International Covenant on Civil and Political Rights, to which the Philippines is a
signatory, acknowledges the existence of said right. Article 25(b) of the Convention states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned
in Article 2 and without unreasonable restrictions:
xxxx
(b) To vote and to be electedat genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the
electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on Elections,35 the Court unequivocally referred to
the right to seek public elective office as a political right, to wit:
Stated differently, it is an additional qualification for elective office specific only to Filipino citizens
who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that
restores their right to run for public office. The petitioner’s failure to comply there with in
accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation
of Australian Citizenship she executed on September 18, 2006. As such, she is yet to regain her
political right to seek elective office. Unless she executes a sworn renunciation of her Australian
citizenship, she is ineligible to run for and hold any elective office in the Philippines. (Emphasis
supplied.)
Thus, from both law and jurisprudence, the right to seek public elective office is unequivocally
considered as a political right. Hence, the Court reiterates its earlier statement that the pardon
granted to former President Estrada admits no other interpretation other than to mean that, upon
acceptance of the pardon granted tohim, he regained his FULL civil and political rights –
including the right to seek elective office.
On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said penal
provisions; and prescribes a formal requirement that is not only unnecessary but, if insisted
upon, could be in derogation of the constitutional prohibition relative to the principle that the
exercise of presidential pardon cannot be affected by legislative action.
Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v. Factoran, Jr.36 to
justify her argument that an absolute pardon must expressly state that the right to hold public
office has been restored, and that the penalty of perpetual absolute disqualification has been
remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although the learned views of Justices
Teodoro R. Padilla and Florentino P. Feliciano are to be respected, they do not form partof the
controlling doctrine nor to be considered part of the law of the land. On the contrary, a careful
reading of the majority opinion in Monsanto, penned by no less than Chief Justice Marcelo B.
Fernan, reveals no statement that denotes adherence to a stringent and overly nuanced
application of Articles 36 and 41 of the Revised Penal Code that will in effect require the
President to use a statutorily prescribed language in extending executive clemency, even if the
intent of the President can otherwise be deduced from the text or words used in the pardon.
Furthermore, as explained above, the pardon here is consistent with, and not contrary to, the
provisions of Articles 36 and 41.
The disqualification of former President Estrada under Section 40 of the LGC in relation to
Section 12 of the OEC was removed by his acceptance of the absolute pardon granted to him.
Section 40 of the LGC identifies who are disqualified from running for any elective local position.
Risos-Vidal argues that former President Estrada is disqualified under item (a), to wit:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving
sentence[.] (Emphasis supplied.)
Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for an
exception, to wit:
Section 12. Disqualifications. – x x x unless he has been given plenary pardon or granted
amnesty. (Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former President Estrada’s conviction for plunder
disqualifies him from running for the elective local position of Mayor of the City of Manila under
Section 40(a) of the LGC. However, the subsequent absolute pardon granted to former
President Estrada effectively restored his right to seek public elective office. This is made
possible by reading Section 40(a) of the LGC in relation to Section 12 of the OEC.
While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute
terms, Section 12 of the OEC provides a legal escape from the prohibition – a plenary pardon or
amnesty. In other words, the latter provision allows any person who has been granted plenary
pardon or amnesty after conviction by final judgment of an offense involving moral turpitude,
inter alia, to run for and hold any public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC to candidates running for local
elective positions is not unprecedented. In Jalosjos, Jr. v. Commission on Elections, 37 the Court
acknowledged the aforementioned provision as one of the legal remedies that may be availed of
to disqualify a candidate in a local election filed any day after the last day for filing of certificates
of candidacy, but not later than the date of proclamation.38 The pertinent ruling in the Jalosjos
case is quoted as follows:
What is indisputably clear is that false material representation of Jalosjos is a ground for a
petition under Section 78. However, since the false material representation arises from a crime
penalized by prision mayor, a petition under Section 12 ofthe Omnibus Election Code or Section
40 of the Local Government Code can also be properly filed. The petitioner has a choice
whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on
Section 40 of the Local Government Code. The law expressly provides multiple remedies and
the choice of which remedy to adopt belongs to petitioner.39 (Emphasis supplied.)
The third preambular clause of the pardon did not operate to make the pardon conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas,
Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,"
neither makes the pardon conditional, nor militate against the conclusion that former President
Estrada’s rights to suffrage and to seek public elective office have been restored.
This is especially true as the pardon itself does not explicitly impose a condition or limitation,
considering the unqualified use of the term "civil and political rights"as being restored.
Jurisprudence educates that a preamble is not an essential part of an act as it is an introductory
or preparatory clause that explains the reasons for the enactment, usually introduced by the
word "whereas."40 Whereas clauses do not form part of a statute because, strictly speaking, they
are not part of the operative language of the statute.41 In this case, the whereas clause at issue
is not an integral part of the decree of the pardon, and therefore, does not by itself alone operate
to make the pardon conditional or to make its effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the pardon.
On this matter, the Court quotes with approval a relevant excerpt of COMELEC Commissioner
Maria Gracia Padaca’s separate concurring opinion in the assailed April 1, 2013 Resolution of
the COMELEC in SPA No. 13-211 (DC), which captured the essence of the legal effect of
preambular paragraphs/whereas clauses, viz:
The present dispute does not raise anything which the 20 January 2010 Resolution did not
conclude upon. Here, Petitioner Risos-Vidal raised the same argument with respect to the 3rd
"whereas clause" or preambular paragraph of the decree of pardon. It states that "Joseph
Ejercito Estrada has publicly committed to no longer seek any elective position or office." On this
contention, the undersigned reiterates the ruling of the Commission that the 3rd preambular
paragraph does not have any legal or binding effect on the absolute nature of the pardon
extended by former President Arroyo to herein Respondent. This ruling is consistent with the
traditional and customary usage of preambular paragraphs. In the case of Echegaray v.
Secretary of Justice, the Supreme Court ruled on the legal effect of preambular paragraphs or
whereas clauses on statutes. The Court stated, viz.:
Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its
intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a
statute is clear and unambiguous, the preamble can neither expand nor restrict its operation
much less prevail over its text.
If former President Arroyo intended for the pardon to be conditional on Respondent’s promise
never to seek a public office again, the former ought to have explicitly stated the same in the text
of the pardon itself. Since former President Arroyo did not make this an integral part of the
decree of pardon, the Commission is constrained to rule that the 3rd preambular clause cannot
be interpreted as a condition to the pardon extended to former President Estrada. 42 (Emphasis
supplied.)
Absent any contrary evidence, former President Arroyo’s silence on former President Estrada’s
decision torun for President in the May 2010 elections against, among others, the candidate of
the political party of former President Arroyo, after the latter’s receipt and acceptance of the
pardon speaks volume of her intention to restore him to his rights to suffrage and to hold public
office.
Where the scope and import of the executive clemency extended by the President is in issue,
the Court must turn to the only evidence available to it, and that is the pardon itself. From a
detailed review ofthe four corners of said document, nothing therein gives an iota of intimation
that the third Whereas Clause is actually a limitation, proviso, stipulation or condition on the
grant of the pardon, such that the breach of the mentioned commitment not to seek public office
will result ina revocation or cancellation of said pardon. To the Court, what it is simply is a
statement of fact or the prevailing situation at the time the executive clemency was granted. It
was not used as a condition to the efficacy orto delimit the scope of the pardon.
Even if the Court were to subscribe to the view that the third Whereas Clausewas one of the
reasons to grant the pardon, the pardon itself does not provide for the attendant consequence of
the breach thereof. This Court will be hard put to discern the resultant effect of an eventual
infringement. Just like it will be hard put to determine which civil or political rights were restored if
the Court were to take the road suggested by Risos-Vidal that the statement "[h]e is hereby
restored to his civil and political rights" excludes the restoration of former President Estrada’s
rights to suffrage and to hold public office. The aforequoted text ofthe executive clemency
granted does not provide the Court with any guide asto how and where to draw the line between
the included and excluded political rights.
Justice Leonen emphasizes the point that the ultimate issue for resolution is not whether the
pardon is contingent on the condition that former President Estrada will not seek janother
elective public office, but it actually concerns the coverage of the pardon – whether the pardon
granted to former President Estrada was so expansive as to have restored all his political rights,
inclusive of the rights of suffrage and to hold public office. Justice Leonen is of the view that the
pardon in question is not absolute nor plenary in scope despite the statement that former
President Estrada is "hereby restored to his civil and political rights," that is, the foregoing
statement restored to former President Estrada all his civil and political rights except the rights
denied to him by the unremitted penalty of perpetual absolute disqualification made up of,
among others, the rights of suffrage and to hold public office. He adds that had the President
chosen to be so expansive as to include the rights of suffrage and to hold public office, she
should have been more clear on her intentions.
However, the statement "[h]e is hereby restored to his civil and political rights," to the mind of the
Court, iscrystal clear – the pardon granted to former President Estrada was absolute, meaning, it
was not only unconditional, it was unrestricted in scope, complete and plenary in character, as
the term "political rights"adverted to has a settled meaning in law and jurisprudence.
With due respect, I disagree too with Justice Leonen that the omission of the qualifying word
"full" can be construed as excluding the restoration of the rights of suffrage and to hold public
office. There appears to be no distinction as to the coverage of the term "full political rights" and
the term "political rights" used alone without any qualification. How to ascribe to the latter term
the meaning that it is "partial" and not "full" defies one’s understanding. More so, it will be
extremely difficult to identify which of the political rights are restored by the pardon, when the
text of the latter is silent on this matter. Exceptions to the grant of pardon cannot be presumed
from the absence of the qualifying word "full" when the pardon restored the "political rights" of
former President Estrada without any exclusion or reservation.
Therefore, there can be no other conclusion but to say that the pardon granted to former
President Estrada was absolute in the absence of a clear, unequivocal and concrete factual
basis upon which to anchor or support the Presidential intent to grant a limited pardon.
To reiterate, insofar as its coverageis concerned, the text of the pardon can withstand close
scrutiny even under the provisions of Articles 36 and 41 of the Revised Penal Code.
The COMELEC did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed Resolutions.
In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did not commit
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed
Resolutions.
The Court has consistently held that a petition for certiorariagainst actions of the COMELEC is
confined only to instances of grave abuse of discretion amounting to patentand substantial
denial of due process, because the COMELEC is presumed to be most competent in matters
falling within its domain.43
As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of power due to
passion, prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of
power that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act
at all in contemplation of law. For an act to be condemned as having been done with grave
abuse of discretion, such an abuse must be patent and gross.44
The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual or legal
bases to prove that the assailed COMELEC Resolutions were issued in a "whimsical, arbitrary or
capricious exercise of power that amounts to an evasion orrefusal to perform a positive duty
enjoined by law" or were so "patent and gross" as to constitute grave abuse of discretion.
On the foregoing premises and conclusions, this Court finds it unnecessary to separately
discuss Lim's petition-in-intervention, which substantially presented the same arguments as
Risos-Vidal's petition.
WHEREFORE, the petition for certiorari and petition-inintervention are DISMISSED. The
Resolution dated April 1, 2013 of the Commission on Elections, Second Division, and the
Resolution dated April 23, 2013 of the Commission on Elections, En bane, both in SPA No. 13-
211 (DC), are AFFIRMED.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1278 January 21, 1949
LORETO BARRIOQUINTO and NORBERTO JIMENEZ, petitioners,
vs.
ENRIQUE A. FERNANDEZ, ANTONIO BELMONTE and FELICISIMO OCAMPO, as
Commissioners of the Fourteenth Guerrilla Amnesty Commission, respondents.
Roseller T. Lim for petitioners.
Antonio Belmonte for respondents.
FERIA, J.:
This is a special action of mandamus instituted by the petitioners against the respondents who
composed the 14th Guerrilla Amnesty Commission, to compel the latter to act and decide
whether or not the petitioners are entitled to the benefits of amnesty.
Petitioners Norberto Jimenez and Loreto Barrioquinto were charged with the crime of murder. As
the latter had not yet been arrested the case proceeded against the former, and after trial Court
of First Instance of Zamboanga sentenced Jimenez to life imprisonment. Before the period for
perfecting an appeal had expired, the defendant Jimenez became aware of the Proclamation
No. 8, dated September 7, 1946, which grants amnesty in favor of all persons who may be
charged with an act penalized under the Revised Penal Code in furtherance of the resistance to
the enemy or against persons aiding in the war efforts of the enemy, and committed during the
period from December 8, 1941, to the date when particular area of the Philippines where the
offense was actually committed was liberated from enemy control and occupation, and said
Jimenez decided to submit his case to the Guerrilla Amnesty Commission presided by the
respondents herein, and the other petitioner Loreto Barrioquinto, who had then been already
apprehended, did the same.
After a preliminary hearing had started, the Amnesty Commission, prescribed by the
respondents, issued on January 9, 1947, an order returning the cases of the petitioners to the
Court of First Instance of Zamboanga, without deciding whether or not they are entitled to the
benefits of he said Amnesty Proclamation, on the ground that inasmuch as neither Barrioquinto
nor Jimenez have admitted having committed the offense, because Barrioquinto alleged that it
was Hipolito Tolentino who shot and killed the victim, they cannot invoke the benefits of
amnesty.
The Amnesty Proclamation of September 7, 1946, issued by the President with the concurrence
of Congress of the Philippines, reads in part as follows:
WHEREAS, since the inception of the war until the liberation of the different areas
comprising the territory of the Philippines, volunteer armed forces of Filipinos and for
of other nationalities operated as guerrillas and other patriotic individuals and groups
pursued activities in opposition to the forces and agents of the Japanese Empire in the
invasion and occupation of the Philippines;
WHEREAS, members of such forces, in their determined efforts to resist the enemy,
and to bring about his ultimate defeat, committed acts penalized under the Revised
Penal Code;
WHEREAS, charges have been presented in the courts against many members of
these resistance forces, for such acts;
WHEREAS, the fact that such acts were committed in furtherance of the resistance to
the enemy is not a valid defense under the laws of the Philippines;
WHEREAS, the persons so accused should not be regarded as criminals but rather as
patriots and heroes who have rendered invaluable service to the nation; and
WHEREAS, it is desirable that without the least possible delay, these persons be
freed form the indignity and the jeopardy to which they are now being subjected;
NOW, THEREFORE, I Manuel Roxas, President of the Philippines in accordance with
the provisions of Article VII, section 10, paragraph 6 of the Constitution, do hereby
declare and proclaim an amnesty inn favor of al persons who committed any act
penalized under the Revised Penal Code in furtherance of the resistance to the enemy
or against persons aiding in the war effort of the enemy, and committed during the
period from December 8, 1941 to the date when each particular area of the Philippines
was actually liberated from the enemy control and occupation. This amnesty shall not
apply to crimes against chastity or to acts committed from purely personal motives.
It is further proclaimed and declared that in order to determine who among those
against whom charges have been filed before the courts of the Philippines or against
whom charges may be filed in the future, come within the terms of this amnesty,
Guerrilla Amnesty Commissions, simultaneously to be established , shall examine the
facts and circumstance surrounding each case and, if necessary, conduct summary
hearings of witnesses both for the complainant and the accused. These Commissions
shall decided each case and, upon finding that it falls within the terms of this
proclamation, the Commissions shall so declare and this amnesty shall immediately
be effective as to the accused, who shall forthwith be released or discharged.
The theory of the respondents, supported by the dissenting opinion, is predicated on a wrong
conception of the nature or character of an amnesty. Amnesty must be distinguished from
pardon.
Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded
and proved by the person pardoned, because the courts take no notice thereof; while amnesty
by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act
of which the courts should take judicial notice. Pardon is granted to one after conviction; while
amnesty is granted to classes of persons or communities who may be guilty of political offenses,
generally before or after the institution of the criminal prosecution and sometimes after
conviction. Pardon looks forward and relieves the offender from the consequences of an offense
of which he has been convicted, that is, it abolished or forgives the punishment, and for that
reason it does ""nor work the restoration of the rights to hold public office, or the right of suffrage,
unless such rights be expressly restored by the terms of the pardon," and it "in no case exempts
the culprit from the payment of the civil indemnity imposed upon him by the sentence" article 36,
Revised Penal Code). while amnesty looks backward and abolishes and puts into oblivion the
offense itself, it so overlooks and obliterates the offense with which he is charged that the person
released by amnesty stands before the law precisely as though he had committed no offense.
(section 10[6], Article VII, Philippine Constitution; State vs. Blalock, 62 N.C., 242, 247; In
re Briggs, 135 N.C., 118; 47 S.E. 402., 403; Ex parte Law, 35 GA., 285, 296; State ex rel
Anheuser—Busch Brewing Ass'n. vs. Eby, 170 Mo., 497; 71 S.W 52, 61; Burdick vs United
States, N.Y., 35 S. Ct., 267; 271; 236 U.S., 79; 59 Law. ed., 476.)
In view of the foregoing, we are of the opinion and so hold that, in order to entitle a person to the
benefits of the Amnesty Proclamation of September 7, 1946, it is not necessary that he should,
as a condition precedent or sine qua non, admit having committed the criminal act or offense
with which he is charged and allege the amnesty as a defense; it is sufficient that the evidence
either of the complainant or the accused, shows that the offense committed comes within the
terms of said Amnesty Proclamation. Hence, it is not correct to say that "invocation of the
benefits of amnesty is in the nature of a plea of confession and avoidance." Although the
accused does not confess the imputation against him, he may be declared by the courts or the
Amnesty Commissions entitled to the benefits. For, whether or not he admits or confesses
having committed the offense with which he is charged, the Commissions should, if necessary or
requested by the interested party, conduct summary hearing of the witnesses both for the
complainants and the accused, on whether he has committed the offense in furtherance of the
resistance to the enemy, or against persons aiding in the war efforts of the enemy, and decide
whether he is entitled to the benefits of amnesty and to be "regarded as a patriot or hero who
have rendered invaluable services to the nation,," or not, in accordance with the terms of the
Amnesty Proclamation. since the Amnesty Proclamation is a public act, the courts as well as the
Amnesty Commissions created thereby should take notice of the terms of said Proclamation and
apply the benefits granted therein to cases coming within their province or jurisdiction, whether
pleaded or claimed by the person charged with such offenses or not, if the evidence presented
show that the accused is entitled to said benefits.
The right to the benefits of amnesty, once established by the evidence presented either by the
complainant or prosecution, or by the defense, can not be waived, because it is of public interest
that a person who is regarded by the Amnesty Proclamation which has the force of a law, not
only as innocent, for he stands in the eyes of the law as if he had never committed any
punishable offense because of the amnesty, but as a patriot or hero, can not be punishment as a
criminal. Just as the courts of justice can not convict a person who, according to the evidence,
has committed an act not punishable by law, although he confesses being guilty thereof, so also
and a fortiori they can not convict a person considered by law not a criminal, but as a patriot and
hero, for having rendered invaluable services to the nation inn committing such an act.
While it is true that the evidence must show that the offense charged was against chastity and
was committed in furtherance of the resistance against the enemy, for otherwise, it is to be
naturally presumed that is has been committed for purely personal motive, it is nonetheless true
that though the motive as a mental impulse is state of mind or subjective, it need not be testified
to be the defendant himself at his arraignment or hearing of the case. Generally the motive for
the commission of an offense is established by the testimony of witnesses on the acts or
statements of the accused before or immediately after the commission of the offense, deeds or
words hat may express it or from which his motive or reason for committing it may be inferred.
The statement of testimony of a defendant at the time of arraignment or the hearing of the case
about said motive, can not generally be considered and relied on, specially if there is evidence to
the contrary, as the true expression of the reason o motive he had at the time of committing the
offense. Because such statements or testimony may be an afterthought or colored by the
interest he may have to suit his defense or the purpose for which he intends to achieve with
such declaration. Hence it does not stand to reason and logic to say, as the dissenting opinion
avers, that unless the defendant admits at the investigation or hearing having committed the
offense with which he is charged, and states that he did it in furtherance of the resistance to the
enemy, and not for purely personal motive, it is impossible for the court of Commission to verify
the motive for the commission of the offense, because only the accused could explain of the
offense, because only the accused could explain his belief and intention or the motive of
committing the offense.
There is no necessity for an accused to admit his responsibility for the commission of a criminal
act before a court of Amnesty Commission may investigate and extend or not to him the benefits
of amnesty. The fact that he pleads not guilty or that he has not committed the act with which he
is charged, does not necessarily prove that he is not guilty thereof. Notwithstanding his denial,
the evidence for the prosecution or complainant may show the contrary, as it is generally the
case in criminal proceedings, and what should in such a case be determined is whether or not
the offense committed is of political character. The plea of not having committed the offense
made by an accused simply means that he can not be convicted of the offense charged because
he is not guilty thereof, and, even if the evidence would show that he is, because he has
committed it in furtherance of the resistance to the enemy or against persons a ding in the war
efforts of the enemy, and not for purely political motives.
According to Administrative Order No. 11 of October 2, 1946, creating the Amnesty
Commissions, issued by the President of the Philippines, cases pending in the Courts of First
Instance of the province in which the accused claims the benefits of Amnesty Proclamation, and
cases already decided by said courts but not yet elevated on appeal to the appellate courts,
shall be passed upon and decided by the respective Amnesty Commission, and cases pending
appeal shall be passed upon by the Seventh Amnesty Commission. Under the theory of the
respondents and the writer oft he dissenting opinion, the Commissions should refuse to comply
with the directive of said Administrative Order, because is almost all cases pending in the Court
of First Instance, and all those pending appeal form the sentence of said courts, the defendants
must not have pleaded guilty or admitted having committed the offense charged for otherwise,
they would not or could not have appealed from the judgment of the Courts of First Instance. To
hold that a Amnesty Commission should not proceed to the investigation and act and decide
whether the offense with which an accused was charged comes within the Amnesty
Proclamation if he does not admit or confess having committed it would be to defeat the purpose
for which the Amnesty Proclamation was issued and the Amnesty Commission were
established. If the courts have to proceed to the trail or hearing of a case and decide whether the
offense committed by the defendant comes within the terms of the Amnesty Proclamation
although the defendant has plead not guilty, there is no reason why the Amnesty Commissions
can not do so. Where a defendant to admit or confess having committed the offense or being
responsible therefor before he can invoke the benefit of amnesty, as there is no law which
makes such admission or confession not admissible as evidence against him in the courts of
justices in case the Amnesty Commission finds that the offense does not come within the terms
of the Amnesty Proclamation, nobody or few would take the risk of submitting their case to said
Commission.
Besides, in the present case, the allegation of Loreto Barrioquinto that the offended party or
victim was shot and killed by Agapito Hipolito , does not necessarily bar the respondents from
finding, after the summary hearing of the witnesses for the complaints and the accused, directed
in the said Amnesty Proclamation and Administrative Order No. 11, that the petitioners are
responsible for the killing of the victim, either as principals by cooperation, inducement or
conspiration, or as accessories before as well as after the fact, but that they are entitled to the
benefits of amnesty, because they were members of the same group of guerrilleros who killed
the victim in furtherance of the resistance to the enemy or against persons aiding in the war
efforts of the enemy.
Wherefore, the respondents are hereby ordered to immediately proceed to hear and decide the
application for amnesty of petitioners Barrioquinto and Jimenez, unless amnesty of petitioners
Barrioquinto and Jimenez, unless the courts have in the meantime already decided, expressly
and finally, the question whether or not they are entitled to the benefits of the Amnesty
Proclamation No. 8 of September 7, 1946. So ordered.
Moran, C. J., Paras, Bengzon, and Briones, JJ., concur.
Separate Opinions
PERFECTO, J., concurring:
An information for the crime of murder was filed against petitioners with the Court of First
Instance of Zamboanga. Because Barrioquinto was then at large, the information was dismissed
and a separate criminal case was instituted against him. Jimenez was tried with other accused
and sentenced to life imprisonment. Within the time for appeal, Jimenez became aware of
Proclamation No. 8, date September 7, 1946, granting amnesty to all persons who have
committed offenses in furtherance of the resistance against the Japanese, and decided to
submit his case to the 14th Guerrilla Amnesty Commission. Barrioquinto, having been
apprehended, did the same.
After the preliminary hearing had started, the Commission issued on January 9, 1947, an order
for the return of the cases of petitioners to the Court of First Instance of Zamboanga, without
deciding whether or not they are entitled to amnesty, because Barrioquinto sated in his
testimony that it was Hipolito Tolentino who fired at and killed the offended party. The
Commission issued the order upon the thesis that, for any person to invoke the benefits of the
Amnesty Proclamation, it is required that he should first admit having committed the offensive
act for which he is prosecuted.
The next of the Amnesty Proclamation fails to support the thesis. To entitle a person to have his
case heard and decided by a Guerrilla Amnesty Commission only the following elements are
essential: First, that he is charged or may be charged with ab offense penalized under the
Revised Penal Code, except those against chastity or for purely personal motives; second, that
he committed the offense in furtherance of the resistance to the enemy; and third, that it was
committed during the period from December 8, 1941, to the date when the area where the
offense was committed was actually liberated from enemy control and occupation.
If these three elements are present in a case brought before a Guerrillas Amnesty Commission,
the latter cannot refuse to hear and decide it under the proclamation. There is nothing in the
proclamation to even hint that the applicant for amnesty must first admit having executed the
acts constituting the offense with which he is charged or be charged.
Upon the facts in this case, petitioners are entitled to have their applications for amnesty heard
and decided by respondent 14th Guerrilla Amnesty Commission.
With the revocation of its order of January 9, 1947, respondent 14th Guerrilla Amnesty
Commission is ordered to immediately proceed to hear and decide the applications for amnesty
of petitioners Barrioquinto and Jimenez.
TUASON, J., dissenting:
I am unable to agree with the decision of the Court and shall briefly state my reasons.
The decision proceeds on the assumption that the Guerrilla Amnesty Commission refused to
hear and decide the application for amnesty of the present petitioners. I think this is a mistake.
There are examinations of records, hearing and decisions.
The pleadings and annexes show that hearing was held on the 9th of January, 19947 in which
the two petitioners and their counsel were present, and one of them, Barrioquinto, testified and
that it was after that hearing, on the same date, that the Commission denied their petition in a
written order and directed the clerk to return the "expedientes" to the Court of First Instance of
Zamboanga for its final action.
It is apparent from this order that the Commission acted in the manner contemplated by
Proclamation No. 8 of the President. The return of the papers to the court merely follow the
procedure provided in the proclamation, which stipulates "that any case now pending on which
may be filed in the future a Guerrilla Amnesty Commission decides as not within the terms of the
amnesty shall proceed in accordance with the usual legal procedure in the courts without regard
to this proclamation."
The proclamation does not prescribe any specific mode of hearing. That the Commission shall
examine the facts and circumstance surrounding each case is all that is provided for. In its
discretion, the Commission may, if it deems necessary, hear the witnesses both for the
complainant and the accused. The hearing does not have to be formal; it may be summary,
according tot he proclamation. This privilege, discretionary with the Commission, was afforded
the accused as far as the nature of their defense permitted.
I get the inference from an examination of the orders of the Commission that the latter went over
the record of each defendant's criminal case. These records are, without doubt, the
"expedientes" which the Commission, ordered sent back to the court. The Commission, we are
to presume, read the exhaustive and well-reasoned decision of the court against Jimenez and
the evidence for and against him on which that decision is based. The fact that Jimenez and his
witness had already given his evidence at length, may well account for the failure or refusal of
the Commission to hear him and his witnesses further. Only Barrioquinto, whose case had not
yet been tried in the Court of First Instance because he had escaped, was heard by the
Commission. The record of heat hearing consists of 33 written pages.
As to the determination of the pretended right of the defendants to the benefits of amnesty, the
two orders of the Commission are decisions on the merits, definite and final as far as the
Commission is concerned. The fact that the defendants denied having committed the crime
imputed to them was cited by the Commission as ground for its decision to turn down their
application. That circumstance was not given as ground for refusal to act. Moreover, in the
second order, a lengthy order dictated on the motion for reconsideration by Jimenez, additional
reasons are stated.
The Commission has thus amply performed the duties required of it by the Amnesty
Proclamation in both the matters of investigating and deciding. The commission heard one
accused and examined the evidence introduced and the decision rendered against the other.
With the reasoning by which the Commission reached its decision, or with the result of its
decision, it is not within the province of the court to concern itself.
The Amnesty Commissions are executive instrumentalities acting for and in behalf of the
President. They are not courts; they are not performing judicial function, and this Court has no
appellate jurisdiction over their actuations, orders or decisions.
Mandamus is ordinarily a remedy for official inaction. (Guanio vs. Fernandez, 55 Phil., 814.) The
Court can order the Commission to act but it can not tell the Commission how to act. How or for
whom a case should be decided is a matter of judgment which courts have no jurisdiction to
control or review. And so ifs the sufficiency or insufficiency of evidence. The write of mandamus
will not issue to control or review the exercise of discretion of a public officer where the law
imposes upon a public officer the right and the duty to exercise judgment. In reference to any
matter in which he is required to act, it is his judgment that is to be exercised and not that of the
court. (Blanco vs. Board of Medical Examiners, 46 Phil., 190.)
In the view I take of the case, it is unnecessary to discuss the court's premise that "there is
nothing in the proclamation to even hint that the applicant for amnesty must first admit having
executed the ac t s constituting the offense with which he is charged or may be charged."
Nevertheless, I don't think the Commission was wrong in its theory.
Amnesty presupposes the commission of a crime. When an accused says that he has not
committed a crime he cannot have any use for amnesty. It is also self-evening that where the
Amnesty Proclamation imposes certain conditions, as in this case, it is incumbent upon the
accused to prove the existence of those conditions. A petition for amnesty is inn the nature of
plea of confession and avoidance. The pleader has to confess the allegations against him before
he is allowed to set out such facts as, if true, would defeat the action. It is a rank inconsistency
for one to justify an act, seek forgiveness for an act of which, according to him, he is not
responsible. It is impossible for a court or commission to verify the presence of the essential
conditions which should entitle the applicants to exemption from punishment, when the accused
and his witnesses say that he did not commit a crime. In the nature of things, only the accused
and his witnesses could prove that the victim collaborated with the enemy; that the killing was
perpetrated in furtherance of the resistance movements; that no personal motive intervened in
the commission of the murder, etc., etc. These, or some of these, are matters of belief and
intention which only the accused and his witnesses could explain.

As a matter of procedure, certiorari or mandamus, whatever the present proceeding may be,
does not lie because there is another plain, speedy and adequate remedy at law. The decision
of the Commission has not closed the avenue for the petitioners to invoke the provisions of the
Amnesty Proclamation before the courts. I invite attention to the provision of the proclamation
which I have quoted. In the case of Jimenez, he could ask for a new trial, as he in effect would
have the Commission grant him; and in the case of Barrioquinto he could set up the
proclamation in his plea when his trial comes up.

[G.R. No. 97091. May 5, 2003]
IN RE:PETITION FOR JUDICIAL CLEMENCY
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of
this Court dated MAY 5 2003.
G.R. No. 97091 (In re:Petition for Judicial Clemency and
to Allow Petitioner to be Entitled to the Benefits of
Retirement under Republic Act No. 910 on
Disability.Manuel V. Romillo, Jr., petitioner.)
The Court Resolved to NOTE the Memorandum dated 5
May 2003 of Atty. Edna E. Diño, Deputy Clerk of Court
and Chief Attorney which reads:
This is in compliance with Your Honor's instruction this
morning regarding the petition of Maripaz Romillo,
daughter of Judge Manuel V. Romillo, Jr., petitioner in
this case, seeking mercy for his father.
Petitioner was a judge of the Court of First Instance of
Rizal Branch XXVII, Pasay City when, on 10 June 1986,
this Court dismissed him from the service for having
acted in bad faith in awarding excessive and
unjustifiable damages to the plaintiffs in Civil Case No.
0018-P(Samil Beiruty and Mohammed Al-Sulain v.
Cathay Pacific Airways, Inc.).His leave and retirement
benefits and privileges were ordered forfeited.His
dismissal was also rendered with prejudice to
reinstatement in government service, including
government-owned and/or controlled corporations.
Upon petitioner's two motions for reconsideration, on 12
August 1986, Court issued an Amended Resolution
adding this sentence to the dispositive portion of the
Resolution of 10 June 1986:"He may, however, enjoy all
vacation and sick leave benefits that he has earned
during the period of his government service."
It turned out, however, that as of 10 June 1986,
petitioner had exhausted his sick leave credits.He had
365 days of vacation leave and 31 days of forfeitable
leave with monetary value P85,000.00.Alleging that the
amount was not sufficient for his medical needs and the
schooling of his children, petitioner filed a motion for
reconsideration.
The Court denied that motion but on 25 June 1987,
petitioner filed a petition to lift the penalties imposed by
the Resolution of 10 June 1986 and praying that
because he had tendered his courtesy resignation, he
be allowed to benefit from disability retirement under
Republic Act No. 910, as amended.The Court denied the
petition.
On 15 February 1991, petitioner filed a petition for
judicial clemency with a prayer that he should be
allowed to receive disability retirement benefits, and to
pay a fine equivalent to six months salary, as penalty for
his administrative offense, to be deducted from his
retirement benefits.The petition was docketed as G.R.
No. 97091.On 28 February 1991, the Court denied the
petition on the ground that there was nothing new in the
petition that the Court had not passed upon in
petitioner's previous motions/petition.Entry of judgment
in the case was made on 1 April 1991.
Undaunted, petition filed a motion for leave to file a
motion for reconsideration, alleging that in the
meantime, he suffered from cerebral infarct (stroke)
twice.In his motion for reconsideration, petitioner
admitted his guilt for grave and serious misconduct that
affected his "integrity and efficiency as a judge by
rendering that erroneous and controversial judgment
award in Civil Case No. 0018-P."In the Resolution of 25
January 1994, the Court denied petitioner's motion for
reconsideration "for want of merit."The denial was final
and the Court ruled that no further pleadings should be
received by this Court on this case.
However, petitioner explored another remedy to his
plight.He sought the intervention of the President by
seeking executive clemency.The Executive Secretary
granted his request but executive clemency was "limited
to the reinstatement of the retirement benefits due him
under the law."The executive action was forwarded to
this Court for favorable action by then Senate Secretary
Lorenzo E. Leynes, Jr. upon the request of petitioner's
daughter, Maripaz Romillo, an employee in the Office of
the Chairman of the Commission on Appointments.On 9
December 1997, this Court issued a Resolution holding
that the Court's control and supervision over all officials
and employees of the Judiciary is "plenary and absolute"
and hence, the request of Senate Secretary Leynes, Jr.
was denied.
On 5 February 2003, the Office of the Chief Justice
received a letter from Maripaz Romillo pleading that the
Court forgive her father to restore his dignity and the
benefits due him for his long years of government
service.
It appears that Fr. Ranhilio C. Aquino of the PHILJA
requested the assistance of the Court Administrator in
order that petitioner may receive his retirement
benefits.The Court Administrator submitted a
Memorandum to Your Honor stating that since the Court
has denied with finality petitioner's request, no further
action should be taken towards the grant to petitioner of
retirement benefits.
In the Resolution of 18 February 2003, the Court
referred the said letter of Maripaz Romillo and the
Memorandum of the Court Administrator to this Office for
comment and recommendation.
Petitioner's dismissal resulted in the forfeiture of his
retirement benefits excluding his accrued leave
credits.However, the Court has not always been
adamantine as regards an order to dismiss an erring
judge.Upon a showing that the dismissed judge
sincerely repented having committed the act that
violated judicial ethics and standards by manifest acts of
reformation of character, this Court would grant
clemency to him.One such example is the case of Judge
Manuel M. Calanog who was charged with
immorality.The Court granted clemency to him and lifted
the penalty of disqualification from public office.
Petitioner was dismissed from the service on account of
an exorbitant award of damages to parties in a civil
case.However, the winning parties in that case did not
benefit from the judgment petitioner rendered because
the Court remanded that case to the trial court for further
proceedings.Nevertheless, the Court considered his act
as prejudicial to the administration of justice that, by the
principle of res ipsa loquitur, violated the rules of judicial
conduct.The offense that caused petitioner's dismissal
from judicial service thus belongs to the gray area of
error of judgment and violation of judicial standard.
Petitioner, who has served the government for more
than 29 years with the last 16 years thereof in the
judiciary, has openly admitted his guilt before the
Court.Now an octogenarian, he has been suffering from
a lingering illness that has left his family in constant
search for means with which to respond to his medical
needs.This Court may not turn a deaf ear to his pleas for
clemency and compassion.
However, more than 17 years have elapsed since
petitioner filed his application for disability retirement; it
is now quite late to grant him retirement benefits.
Petitioner's situation is similar to that of Judge Carlos C.
Ofilada who, on 5 August 1998, was dismissed from
judicial service for various administrative offenses
amounting to grave abuse of authority, evident partiality,
gross incompetence, and ignorance of the law.By his
dismissal, his retirement benefits and leave credits were
rendered forfeited with prejudice to reemployment in any
public office.Around three years later, his wife filed with
the Court a request for mercy on account of the fact that
her husband, who had rendered more than 37 years of
service in the government, was suffering from various
ailments that confined him to a wheelchair.Pending
consideration by the Court of the plea for mercy of Mrs.
Irene Ofilada, Judge Ofilada died.Acting on the request
the Court, after citing the cases of Judge Calanog and
petitioner herein, ruled:
These cases and similar others laid the groundwork and
paved the way for the amendment of Rule 140 of the
Rules of Court.Before its amendment, Rule 140 only
provided for the procedure in case a complaint was filed
against a regional trial court judge.There was no
mention of specific sanctions that may be imposed as it
only provided for "(a)fter the filing of the report, the court
will take such action as the facts and law may
warrant."When it was amended specific sanctions were
already provided.Relatedly, while the "Plea of Mercy" of
Ms. Ofilada was pending before us, Rule 140 of the
Rules of Court regarding the discipline of Justices and
Judges was again amended.It now provides that
effective 1 October 2001 the sanctions that may be
imposed on erring Justices and Judges, pursuant to
Sec. 11 of rule 140 are as follows-
SEC.11.Sanctions. - A.If the respondent is guilty of a
serious charge, any of the following sanctions may be
imposed:
1. Dismissal from the service, forfeiture of all or part of
the benefits as the Court may determine, and
disqualification from reinstatement or appointment to any
public office, including government-owned or controlled
corporations.Provided, however, that the forfeiture of
benefits shall in no case include accrued leave credits;
2. Suspension from office without salary and other
benefits for more than three (3) but not more than six (6)
months; or
3. A fine of more than P20,000.00 but not exceeding
P40,000.00 x x x (italics supplied).
Under this amendment, the Court may forfeit
respondent's retirement benefits in whole or in part
depending on the circumstances of each case.In
addition to his accrued leaves, the respondent may be
allowed to enjoy a portion of his retirement
benefits.Notably, even before the effectivity of this
amendment; the Court already had occasion to grant a
dismissed judge not only the money equivalent to his
accrued leaves but also a portion of his retirement
benefits, as we did in Sabitsana, Jr. v. Villamor.

ACCORDINGLY, the Court Resolves to GRANT the

heirs of Judge Carlos C. Ofilada the money equivalent of
all his accrued sick and vacation leaves and, in addition,
a gratuity equivalent to twenty-five percent (25%) of his
retirement benefits.To this extent, the dispositive portion
of the Decision dated 5 August 1998 is deemed
MODIFIED.

Petitioner may thus be granted a gratuity or financial

assistance in such amount as the Court may determine,
such as two hundred thousand pesos (P200,000.00) or
twenty-five (25%) of his retirement benefits whichever is
higher.Having been granted the money equivalent of his
accrued leave credits, petitioner shall only be allowed
gratuity or financial assistance.

It is therefore respectfully recommended that the Court

(a) GRANT clemency to Judge Manuel V. Romillo, Jr.,
and (b) MODIFY the dispositive portion of the Decision
of 10 June 1986, as amended by the Resolution of 12
August 1986, by granting him gratuity or financial
assistance of two hundred thousand pesos
[P200,000.00] or twenty-five (25%) of the amount that he
would have been entitled had he retired regularly,
whichever is higher.

The Court further RESOLVED, for humanitarian reasons

and in the highest interest of justice and compassion,
and as an act of clemency, to approve the
recommendation of Atty. Diño to grant petitioner
MANUEL V. ROMILLO financial assistance or gratuity of
Two Hundred Thousand Pesos (P200,000), or twenty-
five percentum (25%) of the amount that he would have
been entitled to had he retired regularly, whichever is
higher.The amount herein involved shall be charged
against the savings of the Lower Court.

Very truly yours,

(Sgd.)LUZVIMINDA D. PUNO
Clerk of Court

EN BANC
October 20, 2015
G.R. No. 206513
MUSTAPHA DIMAKUTA MARUHOM, Petitioner
vs.
PEOPLE OF THE PHIILPPINES, Respondent
DECISION
PERALTA, J.:
The Court is now faced with one of the predicaments I discussed in my Dissenting and
Concurring Opinion in Colinares v. People.1 The question regarding the application of the
Probation Law is again inescapably intertwined with the present petition. Consequently, I must
reiterate my assertions and arguments in Colinares to the case at bar.
In the present controversy, petitioner Mustapha Dimakuta y Maruhom alias Boyet was indicted
for Violation of Section 5 Paragraph (b), Article III of Republic Act (R.A.) No. 7610 or the Special
Protection of Children Against Abuse, Exploitation and Discriminatory Act. The Information
reads:
That on or about the 24th day of September 2005, in the City of Las Piñas, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did
then and there willfully, unlawfully and feloniously commit a lascivious conduct upon the person
of one AAA, who was then a sixteen (16) year old minor, by then and there embracing her,
touching her breast and private part against her will and without her consent and the act
complained of is prejudicial to the physical and psychological development of the complainant.2
After trial, the RTC promulgated its Decision3 which convicted petitioner of the crime charged
and sentenced him to suffer an indeterminate penalty of imprisonment ranging from ten (10)
years of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of
reclusion temporal, as maximum, with the accessory penalty of perpetual absolute
disqualification. In addition, he was directed to pay a fine of ₱20,000.00, civil indemnity of
₱25,000.00, and moral damages of ₱25,000.00.4
Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA) arguing, among
other things, that even assuming he committed the acts imputed, still there is no evidence
showing that the same were done without the victim’s consent or through force, duress,
intimidation or violence upon her. Surprisingly, when asked to comment on the appeal, the Office
of the Solicitor General (OSG), relying heavily on People v. Abello,5 opined that petitioner should
have been convicted only of Acts of Lasciviousness under Article 336 of the Revised Penal
Code (RPC) in view of the prosecution’s failure to establish that the lascivious acts were
attended by force or coercion because the victim was asleep at the time the alleged acts were
committed.
On June 28, 2012, the CA rendered a Decision6 adopting the recommendation of the OSG. In
modifying the RTC Decision, petitioner was found guilty of Acts of Lasciviousness under Article
336 of the RPC and was sentenced to suffer the indeterminate penalty of six (6) months of
arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as
maximum. Likewise, he was ordered to pay ₱20,000.00 as civil indemnity and ₱30,000.00 as
moral damages.
Petitioner received a copy of CA Decision on July 6, 2012. 7 Instead of further appealing the
case, he filed on July 23, 2012 before the CA a manifestation with motion to allow him to apply
for probation upon remand of the case to the RTC.8 Petitioner invoked the case of Colinares v.
People9 which allowed petitioner therein to apply for probation after his sentence was later
reduced on appeal by the Supreme Court.
The CA issued a Resolution on September 3, 2012 denying petitioner’s manifestation with
motion.10 It was ruled that Colinares is inapplicable since petitioner therein raised as sole issue
the correctness of the penalty imposed and claimed that the evidence presented warranted only
a conviction for the lesser offense.1âwphi1 Instead, the appellate court viewed as appropriate
the case of Lagrosa v. People,11 wherein the application for probation was denied because
petitioners therein put in issue on appeal the merits of their conviction and did not simply assail
the propriety of the penalties imposed.
Petitioner filed a motion for reconsideration,12 but it was denied in a Resolution13 dated March
13, 2013; hence, this petition.
The petition should be denied.
At the outset, tracing the evolution of the present Probation Law is warranted in order to better
understand and apply the wisdom of its framers to cases invoking its application.
In this jurisdiction, the concept of probation was introduced during the American colonial
period.14 For juvenile delinquents, Act No. 320315 was enacted on December 3, 1924. It was
later amended by Act Nos. 3309,16 3559,17and 3725.18 As to offenders who are eighteen years
old and above, Act No. 422119 was passed by the legislature and took effect on August 7, 1935.
Said Act allowed defendants who are convicted and sentenced by a Court of First Instance or by
the Supreme Court on appeal, except those who are convicted of offenses enumerated in
Section 8 thereof,20 to be placed on probation upon application after the sentence has become
final and before its service has begun.21 However, We declared in People v. Vera22 that Act No.
4221 is unconstitutional and void as it constitutes an improper and unlawful delegation of
legislative authority to the provincial boards.
During the martial law period, then President Ferdinand E. Marcos issued Presidential Decree
(P.D.) No. 96823 on July 24, 1976. Originally, P.D. No. 968 allowed the filing of an application for
probation at any time after the defendant had been convicted and sentenced. Section 4 of which
provides:
SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the court may, after it
shall have convicted and sentenced a defendant and upon application at any time of said
defendant, suspend the execution of said sentence and place the defendant on probation for
such period and upon such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.
An application for probation shall be filed with the trial court, with notice to the appellate court if
an appeal has been taken from the sentence of conviction. The filing of the application shall be
deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal. An
order granting or denying probation shall not be appealable.24
Later, the filing of an application for probation pending appeal was still allowed when Section 4
of P.D. No. 968 was amended by P.D. No. 125725 on December 1, 1977 by providing that such
application may be made after the defendant had been convicted and sentenced but before he
begins to serve his sentence. Thus:
SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the court may, after it
shall have convicted and sentenced a defendant but before he begins to serve his
sentence and upon his application, suspend the execution of said sentence and place the
defendant on probation for such period and upon such terms and conditions as it may deem
best.
The prosecuting officer concerned shall be notified by the court of the filing of the application for
probation and he may submit his comment on such application within ten days from receipt of
the notification.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine with
subsidiary imprisonment in case of insolvency. An application for probation shall be filed with the
trial court, with notice to the appellate court if an appeal has been taken from the sentence of
conviction. The filing of the application shall be deemed a waiver of the right to appeal, or the
automatic withdrawal of a pending appeal. In the latter case, however, if the application is filed
on or after the date of the judgment of the appellate court, said application shall be acted upon
by the trial court on the basis of the judgment of the appellate court.
An order granting or denying probation shall not be appealable. 26
On October 5, 1985, Section 4 was subsequently amended by P.D. No. 1990. 27 Henceforth, the
policy has been to allow convicted and sentenced defendant to apply for probation within the 15-
day period for perfecting an appeal. As modified, Section 4 of the Probation Law now reads:
SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant and upon application by said
defendant within the period for perfecting an appeal, suspend the execution of the sentence
and place the defendant on probation for such period and upon such terms and conditions as it
may deem best; Provided, that no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.
An application for probation shall be filed with the trial court. The filing of the application shall be
deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable. 28
The reason for the disallowance may be inferred from the preamble of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons who are convicted of offenses and who
may be entitled to probation still appeal the judgment of conviction even up to the Supreme
Court, only to pursue their application for probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too
much time and effort, not to mention the huge expenses of litigation, on the part of the State;
WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting
accused persons from the lower courts up to the Supreme Court, are oftentimes rendered
nugatory when, after the appellate Court finally affirms the judgment of conviction, the defendant
applies for and is granted probation;
WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct
and delay the administration of justice, but should be availed of at the first opportunity by
offenders who are willing to be reformed and rehabilitated;
WHEREAS, it becomes imperative to remedy the problems abovementioned confronting our
probation
system[.]
Observing the developments in our Probation Law, the Court settled in Llamado v. Court of
Appeals:29
Examination of Section 4, after its amendment by P.D. No. 1257, reveals that it had established
a prolonged but definite period during which an application for probation may be granted by the
trial court. That period was: "After [the trial court] shall have convicted and sentenced a
defendant but before he begins to serve his sentence." Clearly, the cut-off time –
commencement of service of sentence – takes place not only after an appeal has been
taken from the sentence of conviction, but even after judgment has been rendered by the
appellate court and after judgment has become final. Indeed, in this last situation, Section 4, as
amended by P.D. No. 1257 provides that "the application [for probation] shall be acted upon by
the trial court on the basis of the judgment of the appellate court"; for the appellate court might
have increased or reduced the original penalty imposed by the trial court. x x x
xxxx
In sharp contrast with Section 4 as amended by PD No. 1257, in its present form, Section 4
establishes a much narrower period during which an application for probation may be filed with
the trial court: "after [the trial court] shall have convicted and sentenced a defendant and – within
the period for perfecting an appeal –." As if to provide emphasis, a new proviso was appended
to the first paragraph of Section 4 that expressly prohibits the grant of an application for
probation "if the defendant has perfected an appeal from the judgment of conviction." It is worthy
of note too that Section 4 in its present form has dropped the phrase which said that the filing of
an application for probation means "the automatic withdrawal of a pending appeal." The deletion
is quite logical since an application for probation can no longer be filed once an appeal is
perfected; there can, therefore, be no pending appeal that would have to be withdrawn.
xxxx
We find ourselves unable to accept the eloquently stated arguments of petitioner's counsel and
the dissenting opinion. We are unable to persuade ourselves that Section 4 as it now stands, in
authorizing the trial court to grant probation "upon application by [the] defendant within the
period for perfecting an appeal" and in reiterating in the proviso that
"no application for probation shall be entertained or granted if the defendant has perfected an
appealfrom the judgment of conviction."
did not really mean to refer to the fifteen-day period established, as indicated above, by B.P. Blg.
129, the Interim Rules and Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on
Criminal Procedure, but rather to some vague and undefined time, i.e., "the earliest opportunity"
to withdraw the defendant's appeal. The whereas clauses invoked by petitioner did not, of
course, refer to the fifteen-day period. There was absolutely no reason why they should have so
referred to that period for the operative words of Section 4 already do refer, in our view, to such
fifteen-day period. Whereas clauses do not form part of a statute, strictly speaking; they are not
part of the operative language of the statute. Nonetheless, whereas clauses may be helpful to
the extent they articulate the general purpose or reason underlying a new enactment, in the
present case, an enactment which drastically but clearly changed the substantive content of
Section 4 existing before the promulgation of P.D. No. 1990. Whereas clauses, however, cannot
control the specific terms of the statute; in the instant case, the whereas clauses of P.D. No.
1990 do not purport to control or modify the terms of Section 4 as amended. Upon the other
hand, the term "period for perfecting an appeal" used in Section 4 may be seen to furnish
specification for the loose language "first opportunity" employed in the fourth whereas clause.
"Perfection of an appeal" is, of course, a term of art but it is a term of art widely understood by
lawyers and judges and Section 4 of the Probation Law addresses itself essentially to judges
and lawyers. "Perfecting an appeal" has no sensible meaning apart from the meaning given to
those words in our procedural law and so the law-making agency could only have intended to
refer the law-making agency could only have intended to refer to the meaning of those words in
the context of procedural law.30
In Sable v. People, et al.,31 this Court stated that Section 4 of the Probation Law was amended
precisely to put a stop to the practice of appealing from judgments of conviction even if the
sentence is probationable, for the purpose of securing an acquittal and applying for the
probation only if the accused fails in his bid.32 The Probation Law "expressly requires that an
accused must not have appealed his conviction before he can avail himself of probation. This
outlaws the element of speculation on the part of the accused – to wager on the result of his
appeal – that when his conviction is finally affirmed on appeal, the moment of truth well nigh at
hand and the service of his sentence inevitable, he now applies for probation as an ‘escape
hatch,’ thus rendering nugatory the appellate court's affirmance of his conviction."33
Verily, Section 4 of the Probation Law provides that the application for probation must be filed
with the trial court within the 15-day period for perfecting an appeal. The need to file it within
such period is intended to encourage offenders, who are willing to be reformed and rehabilitated,
to avail themselves of probation at the first opportunity.34If the application for probation is filed
beyond the 15-day period, then the judgment becomes final and executory and the lower court
can no longer act on the application for probation. On the other hand, if a notice of appeal is
perfected, the trial court that rendered the judgment of conviction is divested of any jurisdiction to
act on the case, except the execution of the judgment when it has become final and executory.
In view of the latest amendment to Section 4 of the Probation Law that "no application for
probation shall be entertained or granted if the defendant has perfected an appeal from the
judgment of conviction," prevailing jurisprudence35 treats appeal and probation as mutually
exclusive remedies because the law is unmistakable about it. 36 Indeed, the law is very clear and
a contrary interpretation would counter its envisioned mandate. Courts have no authority to
invoke "liberal interpretation" or "the spirit of the law" where the words of the statute themselves,
and as illuminated by the history of that statute, leave no room for doubt or interpretation. 37 To
be sure, the remedy of convicted felons who want to avail of the benefits of probation even after
the remedy of an appeal is to go to the Congress and ask for the amendment of the law. To
surmise a converse construal of the provision would be dangerously encroaching on the power
of the legislature to enact laws and is tantamount to judicial legislation.
With due respect, however, to the ponente and the majority opinion in Colinares, 38 the
application of the Probation Law in the said case deserves a second hard look so as to correct
the mistake in the application of the law in that particular case and in similar cases which will be
filed before the courts and inevitably elevated to Us like this petition.
To refresh, Colinares concluded that since the trial court imposed a penalty beyond what is
allowed by the Probation Law, albeit erroneously, the accused was deprived of his choice to
apply for probation and instead was compelled to appeal the case. The reprehensible practice
intended to be avoided by the law was, therefore, not present when he appealed the trial court’s
decision. Taking into account that the accused argued in his appeal that the evidence presented
against him warranted his conviction only for attempted, not frustrated, homicide, the majority of
the Court opined that the accused had purposely sought to bring down the impossible penalty in
order to allow him to apply for probation.
It was obvious then, as it is now, that the accused in Colinares should not have been allowed the
benefit of probation. As I have previously stated and insisted upon, probation is not a right
granted to a convicted offender; it is a special privilege granted by the State to a penitent
qualified offender,39 who does not possess the disqualifications under Section 9 of P.D. No. 968,
as amended.40 Likewise, the Probation Law is not a penal law for it to be liberally construed to
favor the accused.41
In the American law paradigm, probation is considered as an act of clemency and grace, not a
matter of right.42 It is a privilege granted by the State, not a right to which a criminal defendant is
entitled.43 In City of Aberdeen v. Regan,44 it was pronounced that:
The granting of a deferred sentence and probation, following a plea or verdict of guilty, is
a rehabilitative measure and, as such, is not a matter of right but is a matter of grace, privilege,
or clemency granted to the deserving.
As such, even in the American criminal justice model, probation should be granted only to the
deserving or, in our system, only to qualified "penitent offenders" who are willing to be reformed
and rehabilitated. Corollarily, in this jurisdiction, the wisdom behind the Probation Law is outlined
in its stated purposes, to wit:
(a) promote the correction and rehabilitation of an offender by providing him with individualized
treatment;
(b) provide an opportunity for the reformation of a penitent offender which might be less
probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.45
As I have previously indicated in Colinares, if this Court will adopt as jurisprudential doctrine the
opinion that an accused may still be allowed to apply for probation even if he has filed a notice of
appeal, it must be categorically stated that such appeal must be limited to the following grounds:
1. When the appeal is merely intended for the correction of the penalty imposed by the lower
court, which when corrected would entitle the accused to apply for probation; and
2. When the appeal is merely intended to review the crime for which the accused was convicted
and that the accused should only be liable to the lesser offense which is necessarily included in
the crime for which he was originally convicted and the proper penalty imposable is within the
probationable period.
In both instances, the penalty imposed by the trial court for the crime committed by the accused
is more than six years; hence, the sentence disqualifies the accused from applying for probation.
The accused should then be allowed to file an appeal under the afore-stated grounds to seek a
review of the crime and/or penalty imposed by the trial court. If, on appeal, the appellate court
finds it proper to modify the crime and/or the penalty imposed, and the penalty finally imposed is
within the probationable period, the accused should still be allowed to apply for probation.
In addition, before an appeal is filed based on the grounds enumerated above, the accused
should first file a motion for reconsideration of the decision of the trial court anchored on the
above-stated grounds and manifest his intent to apply for probation if the motion is granted. The
motion for reconsideration will give the trial court an opportunity to review and rectify any errors
in its judgment, while the manifestation of the accused will immediately show that he is
agreeable to the judgment of conviction and does not intend to appeal from it, but he only seeks
a review of the crime and/or penalty imposed, so that in the event that the penalty will be
modified within the probationable limit, he will immediately apply for probation. Without such
motion for reconsideration, the notice of appeal should be denied outright.
The notice of appeal should contain the following averments:
(1) that an earlier motion for reconsideration was filed but was denied by the trial court;
(2) that the appeal is only for reviewing the penalty imposed by the lower court or the conviction
should only be for a lesser crime necessarily included in the crime charged in the information;
and
(3) that the accused-appellant is not seeking acquittal of the conviction.
To note, what Section 4 of the Probation Law prohibits is an appeal from the judgment of
conviction, which involves a review of the merits of the case and the determination of whether
the accused is entitled to acquittal. However, under the recommended grounds for appeal which
were enumerated earlier, the purpose of the appeal is not to assail the judgment of conviction
but to question only the propriety of the sentence, particularly the penalty imposed or the crime
for which the accused was convicted, as the accused intends to apply for probation upon
correction of the penalty or conviction for the lesser offense. If the CA finds it proper to modify
the sentence, and the penalty finally imposed by the appellate court is within the probationable
period, or the crime for which the accused is eventually convicted imposes a probationable
penalty, application for probation after the case is remanded to the trial court for execution
should be allowed.
It is believed that the recommended grounds for appeal do not contravene Section 4 of the
Probation Law, which expressly prohibits only an appeal from the judgment of conviction. In
such instances, the ultimate reason of the accused for filing the appeal based on the afore-
stated grounds is to determine whether he may avail of probation based on the review by the
appellate court of the crime and/or penalty imposed by the trial court. Allowing the afore-stated
grounds for appeal would give an accused the opportunity to apply for probation if his ground for
appeal is found to be meritorious by the appellate court, thus, serving the purpose of the
Probation Law to promote the reformation of a penitent offender outside of prison.
On the other hand, probation should not be granted to the accused in the following instances:
1. When the accused is convicted by the trial court of a crime where the penalty imposed is
within the probationable period or a fine, and the accused files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of his conviction in
issue, even ifthere is an alternative prayer for the correction of the penalty imposed by the trial
court or for a conviction to a lesser crime, which is necessarily included in the crime in which he
was convicted where the penalty is within the probationable period.
Both instances violate the spirit and letter of the law, as Section 4 of the Probation Law prohibits
granting an application for probation if an appeal from the sentence of conviction has been
perfected by the accused.
In this case, petitioner appealed the trial court’s judgment of conviction before the CA alleging
that it was error on the part of the RTC to have found him guilty of violating Section 5(b), Article
III of R.A. No. 7610. He argued that the RTC should not have given much faith and credence to
the testimony of the victim because it was tainted with inconsistencies. Moreover, he went on to
assert that even assuming he committed the acts imputed on him, still there was no evidence
showing that the lascivious acts were committed without consent or through force, duress,
intimidation or violence because the victim at that time was in deep slumber. It is apparent that
petitioner anchored his appeal on a claim of innocence and/or lack of sufficient evidence to
support his conviction of the offense charged, which is clearly inconsistent with the tenor of the
Probation Law that only qualified penitent offender are allowed to apply for probation. The CA,
therefore, did not err in applying the similar case of Lagrosa v. People46wherein the protestations
of petitioners therein did not simply assail the propriety of the penalties imposed but meant a
profession of guiltlessness, if not complete innocence.
To be sure, if petitioner intended in the first instance to be entitled to apply for probation he
should have admitted his guilt and buttressed his appeal on a claim that the penalty imposed by
the RTC was erroneous or that he is only guilty of a lesser offense necessarily included in the
crime for which he was originally convicted. Unfortunately for him, he already perfected his
appeal and it is late in the day to avail the benefits of probation despite the imposition of the CA
of a probationable penalty.
As regards the CA Decision convicting petitioner of the crime of Acts of Lasciviousness under
Article 336 of the RPC, such conclusion clearly contravenes the law and existing jurisprudence.
Petitioner was charged and convicted by the trial court with violation of Section 5(b), Article III of
R.A. No. 7610 based on the complaint of a sixteen (16)-year-old girl for allegedly molesting her
by touching her breast and vagina while she was sleeping. The provision reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for
money, profit, or any other consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed
upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited
in prostitution or subject to other sexual abus; Provided, That when the victim is under twelve
(12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious
conduct, as the case may be: Provided, That the penalty for lasciviousconduct when the victim is
under twelve (12) years of age shall be reclusion temporal I its medium period; x x x(Emphasis
supplied)
The elements of sexual abuse are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected to sexual abuse.
3. The child, whether male or female, is below 18 years of age. 47
Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to other sexual abuse
when he or she indulges in lascivious conduct under the coercion or influence of any
adult.48 This statutory provision must be distinguished from Acts of Lasciviousness under Articles
336 and 339 of the RPC. As defined in Article 336 of the RPC, Acts of Lasciviousness has the
following elements:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived or reason or otherwise unconscious; or
c. When the offended party os under 12 years of age; and
That the offended party is another person of either sex.49
Article 339 of the RPC likewise punishes acts of lasciviousness committed with the consent of
the offended party done by the same persons and under the same circumstances mentioned in
Articles 337 and 338 of the RPC, to wit:
1. if committed against a virgin over twelve years and under eighteen years of age by any
person in public authority, priest, home-servant, domestic, guardian, teacher, or any person who,
in any capacity, shall be entrusted with the education or custody of the woman; or
2. if committed by means of deceit against a woman who is single or a widow of good
reputation, over twelve but under eighteen years of age.
Therefore, if the victim of the lascivious acts or conduct is over 12 years of age and under
eighteen (18) years of age shall be liable for:
1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is
a virgin and consents to the lascivious acts through abuse of confidence or when the victim
is single or a widow of good reputation and consents to the lascivious acts through deceit, or;
2. Acts of lasciviousness is not covered by lascivious conduct as defined in R.A. No. 7610. In
case the acts of lasciviousness is covered by lascivious conduct under R.A. No. 7610 and it is
done through coercion or influence, which established absences or lack of consent, the Art.336
of the RPC is no longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on the part of the victim
to the lascivious conduct, which was done through the employment of coercion or influence. The
offender may likewise be liable for sexual abuse under R.A. No. 7610 if the victim is at least
eighteen (18) years and she is unable to fully take care of herself or protect herself from abuse,
neglect, cruelty, exploitation or discrimination because of a physical or mental disability or
condition.50
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another person's
mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another
person if the victim did not consent either it was done through force, threat or intimidation; or
when the victim is deprived of reason or is otherwise unconscious; or by means of fraudulent
machination or grave abuse of authority as sexual assault as a form of rape. However, in
instances where the lascivious conduct is covered by the definition under R.A. No 7610, where
the penalty is reclusion temporal medium, and the act is likewise covered by sexual assault
under Article 266-A, paragraph 2 of the RPC, which is punishable by prision mayor, the offender
should be liable for violation of Section 5(b), Article III of R.A. No. 7610, where the law provides
for the higher penalty of reclusion temporal medium, if the offended party is a child victim. But if
the victim is at least eighteen (18) years of age, the offender should be liable under Art. 266-A,
par. 2 of the RPC and not R.A. No. 7610, unless the victim is at least eighteen (18) years and
she is unable to fully take care of herself or protect herself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or condition, in which
case, the offender may still be held liable for sexual abuse under R.A. No. 7610.
There could be no other conclusion, a child is presumed by law to be incapable of giving rational
consent to any lascivious act, taking into account the constitutionally enshrined State policy to
promote the physical, moral, spiritual, intellectual and social well-being of the youth, as well as,
in harmony with the foremost consideration of the child’s best interests in all actions concerning
him or her.51 This is equally consistent with the with the declared policy of the State to provide
special protection to children from all forms of abuse, neglect, cruelty, exploitation and
discrimination, and other conditions prejudicial to their development; provide sanctions for their
commission and carry out a program for prevention and deterrence of and crisis intervention in
situations of child abuse, exploitation, and discrimination.52 Besides, if it was the intention of the
framers of the law to make child offenders liable only of Article 266-A of the RPC, which provides
for a lower penalty than R.A. No. 7610, the law could have expressly made such statements.
As correctly found by the trial court, all the elements of sexual abuse under Section 5(b), Article
III of R.A. No. 7610 are present in the case at bar.1âwphi1
First, petitioner’s lewd advances of touching the breasts and vagina of his hapless victim
constitute lascivious conduct as defined in Section 32, Article XIII of the Implementing Rules and
Regulations (IRR) of R.A. No. 7610:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any
person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious
exhibition of the genitals or pubic area of a person.53
Second, petitioner clearly has moral ascendancy over the minor victim not just because of his
relative seniority but more importantly due to the presumed presence of mutual trust and
confidence between them by virtue of an existing employment relationship, AAA being a
domestic helper in petitioner’s household. Notably, a child is considered as sexually abused
under Section 5(b) of R.A. No. 7610 when he or she is subjected to lascivious conduct under
the coercion or influence of any adult. Intimidation need not necessarily be irresistible. It is
sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of
the will of the offended party.54 The law does not require physical violence on the person of the
victim; moral coercion or ascendancy is sufficient.55 On this point, Caballo v. People56 explicated:
As it is presently worded, Section 5, Article III of RA 7610 provides that when a child indulges
in sexual intercourse or any lascivious conduct due to the coercion or influence of any
adult, the child is deemed to be a "child exploited in prostitution and other sexual abuse."
In this manner, the law is able to act as an effective deterrent to quell all forms of abuse, neglect,
cruelty, exploitation and discrimination against children, prejudicial as they are to their
development.
In this relation, case law further clarifies that sexual intercourse or lascivious conduct under the
coercion or influence of any adult exists when there is some form of compulsion equivalent
to intimidation which subdues the free exercise of the offended party’s free will. Corollary
thereto, Section 2(g) of the Rules on Child Abuse Cases conveys that sexual abuse involves
the element of influence which manifests in a variety of forms. It is defined as:
The employment, use, persuasion, inducement, enticement or coercion of a child to engage in,
or assist another person to engage in, sexual intercourse or lascivious conduct or the
molestation, prostitution, or incest with children.
To note, the term "influence" means the "improper use of power or trust in any way that deprives
a person of free will and substitutes another’s objective." Meanwhile, "coercion" is the "improper
use of x x x power to compel another to submit to the wishes of one who wields it."57
Finally, the victim is 16 years of age at the time of the commission of the offense. Under Section
3 (a) of R.A. No. 7610, "children" refers to "persons below eighteen (18) years of age or those
over but unable to fully take care of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or mental disability or condition."
The decision of the trial court finding the petitioner guilty of Violation of Section 5(b), Article III
R.A. No. 7610 should have been upheld by the CA instead of erroneously adopting the
recommendation of the OSG, which inaccurately relied on People v. Abello.58 In said case, the
decisive factor for the acquittal of the accused was not the absence of coercion or intimidation
on the offended party, who was then sleeping at the time the lascivious act was committed, but
the fact that the victim could not be considered as a "child" under R.A. No. 7610. This Court held
that while the twenty-one year old woman has polio as a physical disability that rendered her
incapable of normal function, the prosecution did not present any testimonial or documentary
evidence - any medical evaluation or finding from a qualified physician, psychologist or
psychiatrist - attesting that the physical condition rendered her incapable of fully taking care of
herself or of protecting herself against sexual abuse.

Thus, it is clear that petitioner could not have been entitled to apply for probation in the first
place. Regrettably, since neither the accused nor the OSG questioned the CA Decision, it has
attained finality and to correct the error at this stage is already barred by the right of the accused
against double jeopardy.

Based on the above disquisitions, the petitioner should be denied the benefit of the Probation
Law and that the Court should adopt the recommendations above-stated in situations where an
accused files an appeal for the sole purpose of correcting the penalty imposed to qualify him for
probation or where he files an appeal specifically claiming that he should be found guilty of a
lesser offense necessarily included with the crime originally filed with a prescribed penalty which
is probationable.

SO ORDERED.

G.R. No. 193313, March 16, 2016
ERNIE IDANAN, NANLY DEL BARRIO AND MARLON PLOPENIO, Petitioners, v. PEOPLE
OF THE PHILIPPINES, Respondent.
DECISION
PEREZ, J.:
Before us is a Decision1 of the Court of Appeals dated 29 March 2010 in CA-G.R. CR No. 30729
affirming the Decision2 dated 22 February 2007 of the Regional Trial Court (RTC), Branch 42 of
Virac, Catanduanes finding petitioners Ernie Idanan (Idanan), Nanly Del Barrio (Del Barrio) and
Marlon Plopenio (Plopenio), together with Roberto Vargas (Vargas) and Elmer Tulod (Tulod)
guilty beyond reasonable doubt of illegal possession of lumber under Section 68 of Presidential
Decree (PD) No. 705, as amended.
The petitioners were charged in the following Information:
That on or about the 16th day of October 2005 in the afternoon at [B]arangay San Miguel,
[M]unicipality of Panganiban, [P]rovince of Catanduanes, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused[,] with intent to gain, conspiring,
confederating and helping one another did there and then (sic) willfully, unlawfully and
feloniously possess, and in control of twenty nine (29) pieces of narra lumber with gross volume
of 716.48 board feet or 1.69 cubic meter valued at Php275,844.80, Philippine currency loaded in
a truck bearing Plate No. UMU-424 without necessary permit, license or documents required
under the existing laws, rules and regulations of the DENR to the damage and prejudice of the
Republic of the Philippines in the amount of Php275,844.80.3
During trial, the prosecution presented the police officers who apprehended petitioners. Their
version goes:
In the morning of 16 October 2005, the PNP headquarters of the Municipality of Panganiban,
Province of Catanduanes received an information that a group of illegal loggers will be
transporting narra flitches4along Kilometer 11, 12 or 13 in Panganiban. At around 3:30 p.m., the
OIC Chief of Police P/Inspector Chito Oyardo and five (5) other policemen were patrolling
Kilometer 12 in a motorbike and a compactor when they spotted an idling Isuzu Elf truck loaded
with lumber. The policemen approached the truck. They found out that Idanan was the driver
while Del Barrio and Plopenio were the passengers. Vargas and Tulod were seen hauling
lumber to be loaded into the truck. Petitioners were not able to produce any document
authorizing them to transport lumber so they were placed under arrest. PO1 Ferdinand Bobiles
took photographs of the truck, the seized lumber and the accused. Thereafter, petitioners were
first brought to the police station before they were brought to Camp Camacho in Virac,
Catanduanes.5
The defense, on the other hand, denied the charge. Idanan, Del Barrio and Plopemo testified
that while they were traversing Kilometer 12, they were flagged down by policemen. One of them
borrowed the truck. Idanan, the driver of the truck, obliged. One of the policemen drove the truck
for about 100 meters while petitioners trailed the truck by foot. They then saw the policemen
load narra flitches into the truck. Not one of them questioned the police out of fear. To
petitioners' surprise, they were then arrested and ordered to follow the policemen to the police
station.6 Vargas and Tulod claimed that they were going to Caramoran and they hitched a ride
with Idanan.
The defense presented a Certification signed by Punong Barangay Elias D. Obierna (Elias)
and Barangay Tanod Benito P. Obierna (Benito) certifying that the police intercepted the truck
driven by Idanan; that it was found empty; and that the police officers asked the driver of the
truck to deliver the logs to the Municipal Office/Police Office Station of Panganiban,
Catanduanes.7
The Obiernas initially denied that they executed the Certification. Elias later on clarified that
while he signed the Certification, he was not present at the time of the apprehension and had no
personal knowledge that the truck was empty. Elias claimed that Santiago Idanan forced him to
sign the Certification.8 Benito was present during the incident. He allegedly saw firewood on two
trucks and heard the policemen instructing a certain son of Agoy to load the lumbers into the
truck.9
On 22 February 2007, the RTC found petitioners guilty beyond reasonable doubt of illegal
possession of lumber. The dispositive portion reads:
WHEREFORE, the prosecution having proved the guilt of all the accused beyond reasonable
doubt, the Court hereby sentences accused Ernie Idanan, Nanly del Barrio, Marlon Plopenio,
Roberto Vargas and Elmer Tulod to suffer the imprisonment ranging from ten (10) years and one
(1) day of prision mayor, as minimum, to sixteen (16) years, five (5) months and eleven (11)
days of reclusion temporal, as maximum. The 29 pieces of narra lumber subject of this case are
forfeited in favor of the government.10ChanRoblesVirtualawlibrary
The trial court relied on the presumption of regularity in the performance of official duty in giving
credence to the testimonies of the police officers. Moreover, there was no evidence manifesting
ill motive on the part of the police officers to falsely testify against the accused. The trial court
held that possession of 29 pieces of narra lumber with gross volume of 1.69 cubic meters and
estimated value of P275,844.80 without any documentation clearly constitutes an offense
punishable under PD 705, as amended.
Tulod and Vargas are at large.11
On 29 March 2010, the Court of Appeals rendered its decision affirming petitioner's conviction.
Petitioners maintain that the prosecution failed to prove beyond reasonable doubt all the
elements of the offense charged. Relying on an illegal possession of firearm case where the
Court held that to support a conviction, there must be possession coupled with intent to possess,
petitioners assert that their intent to possess the subject narra lumber must be proven beyond
reasonable doubt. In the case of Tulod and Vargas, they claim that they were merely hired to
load the lumber on the truck. On the part of Idanan, he admitted that the truck was owned by his
father. Thus, their possession over the lumber is considered temporary, incidental, casual and
harmless. Del Barrio and Plopenio meanwhile were merely present at the crime scene.
Petitioners note the testimony of the Chief of Police is far from being candid and straightforward
when he had to be coached by the prosecutor on matters relative to the arrest of the accused.
Petitioners accuse the police officers of planting evidence against them because since the
assumption of the Chief of Police to his post, he had never apprehended anybody for illegal
possession of lumber. Petitioners assert that their testimonies are candid and spontaneous.
They even cite the testimonies of the barangay officials as corroborative of their defense that the
truck confiscated by the police officers had no narra lumber on it.
In their Comment,12 the Office of the Solicitor General (OSG) noted that petitioners were
apprehended by the police offices in flagrante delicto as they were transporting 29 pieces of
narra lumber along Kilometer 12 in Barangay San Miguel, Panganiban, Catanduanes without the
required documentation. The OSG added that mere possession of timber or other forest
products without the accompanying legal documents consummates the crime. Finally, the OSG
defended the credibility of the prosecution witnesses and assailed the defense of frame-up as
weak.
At the outset, we find the testimonies of the prosecution witnesses credible. Evidence to be
believed must not only proceed from the mouth of a credible witness but it must be credible in
itself, such as the common experience and observation of mankind can approve as probable
under the circumstances.13Petitioners' statements that they did not complain or put up any
resistance when they were arrested despite their innocence is contrary to human nature and
experience. Petitioners should have at least protested if they believed that they were not
committing any crime. Moreover, the allegation of "planted evidence" is unsubstantiated. There
is no proof that that the police had the ill-motive to falsely accuse and testify against petitioners,
aside from the unsubstantiated and far-fetched allegation that the police wanted to impress their
superiors. The presumption of regularity accorded to police officers is unrebutted.
Section 6814 of PD 705, otherwise known as the Revised Forestry Code of the Philippines,
provides:
Sect. 68. Cutting, gathering and/or collecting timber or other products without license. Any
person who shall cut, gather, collect, or remove timber or other forest products from any forest
land, or timber from alienable and disposable public lands, or from private lands, without any
authority under a license agreement, lease, license or permit, shall be guilty of qualified theft as
defined and punished under Articles 309 and 310 of the Revised Penal Code; Provided, That in
the case of partnership, association or corporation, the officers who ordered the cutting,
gathering or collecting shall be liable, and if such officers are aliens, they shall, in addition to the
penalty, be deported without further proceedings on the part of the Commission on Immigration
and Deportation.
The Court shall further order the confiscation in favor of the government of the timber or forest
products to cut, gathered, collected or removed, and the machinery, equipment, implements and
tools used therein, and the forfeiture of his improvements in the area.
The same penalty plus cancellation of his license agreement, lease, license or permit and
perpetual disqualification from acquiring any such privilege shall be imposed upon any licensee,
lessee, or permittee who cuts timber from the licensed or leased area of another, without
prejudice to whatever civil action the latter may bring against the offender.
Section 68 penalizes three categories of acts: (1) the cutting, gathering, collecting, or removing
of timber or other forest products from any forest land without any authority; (2) the cutting,
gathering, collecting, or removing of timber from alienable or disposable public land, or from
private land without any authority; and (3) the possession of timber or other forest products
without the legal documents as required under existing forest laws and regulations. 15
Petitioners were charged under the third category, i.e., of possessing and in control of 29 pieces
of narra lumber without the legal requirements as required under existing forest laws and
regulations.
Illegal possession of timber is an offense covered by special law and is malum prohibitum. Thus,
criminal intent is not an essential element of the offense. However, the prosecution must prove
intent to possess or animus possidendi.16
Possession, under the law, includes not only actual possession, but also constructive
possession. Actual possession exists when the object of the crime is in the immediate physical
control of the accused. On the other hand, constructive possession exists when the object of the
crime is under the dominion and control of the accused or when he has the right to exercise
dominion and control over the place where it is found.17
Thus, conviction need not be predicated upon exclusive possession, and a showing of non-
exclusive possession would not exonerate the accused. Such fact of possession may be proved
by direct or circumstantial evidence and any reasonable inference drawn therefrom. 18
We find that Idanan, Del Barrio, and Plopenio were, at the very least, in constructive possession
of the timber without the requisite legal documents. Petitioners were found in the truck loaded
with 29 pieces of narra lumber. Idanan admitted to driving the truck while Del Barrio and
Plopenio accompanied Idanan. They claimed to have traveled for almost three hours just to
retrieve the cellular phone of Idanan's father from a certain Jojo Cabrera (Cabrera)
in Barangay Poblacion, Panganiban, Catanduanes. When pressed by the prosecutor if they
managed to get the cellphone, they replied that they failed to locate Cabrera. The three accused
did not protest despite seeing that the policemen allegedly load lumber into the truck. Neither did
they complain when they were subsequently arrested. Idanan was the driver. It is presumed that
he exercised full control of the vehicle that he is driving and that he knew what its load was.
Having offered no plausible excuse, petitioners failed to prove to our satisfaction that they did
not have the animus possidendi of the narra lumber.
Mere possession of timber or other forest products without the proper legal documents, even
absent malice or criminal intent, is illegal. It would make no difference at all whether the
ownership of the lumber pertains to only one accused.19
The possession of lumber was made without any license or permit issued by any competent
authority.
Violation of Section 68 of PD 705, as amended, is punishable as Qualified Theft under Article
309 and 310 of the Revised Penal Code20 thus:
Art. 309. Penalties. - Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing
stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed
in this paragraph, and one year for each additional ten thousand pesos, but the total of the
penalty which may be imposed shall not exceed twenty years. In such cases, and in connection
with the accessory penalties which may be imposed and for the purpose of the other provisions
of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may
be.
2. The penalty of prision correccional in its medium and maximum periods, if the value of the
thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium periods, if the value of the
property stolen is more than 200 pesos but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value
of the property stolen is over 50 pesos but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the
circumstances enumerated in paragraph 3 of the next preceding article and the value of the
thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provisions of any
of the five preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the
thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger,
poverty, or the difficulty of earning a livelihood for the support of himself or his family.

Art. 310. Qualified theft. - The crime of qualified theft shall be punished by the penalties next
higher by two degrees than those respectively specified in the next preceding article x x x.

The Information alleged that the 29 pieces of lumber measuring 716.48 board feet were valued
at P275,884.80. Said amount was evidenced by the Statement of Narra lumber
materials21 which was presented in evidence and testified to by Basil Cesar Camba, the person
who signed the Statement. Since the amount exceeds P22,000.00, the penalty of prision
mayor in its minimum and medium periods should be imposed in its maximum period. To
determine the additional years of imprisonment prescribed in Article 309 (1), the amount of
P22,000.00 should be deducted from P275,884.80, thus, leaving the amount of P253,884.80.
The net amount should then be divided by PI 0,000.00, disregarding any amount below
P10,000.00. The result is the incremental penalty of twenty-five (25) years which must then be
added to the basic penalty of the maximum period of prision mayor minimum and medium
periods. The penalty of prision mayor in its minimum and medium periods has a range of six
years (6) and one (1) day to ten (10) years. Its maximum period is eight (8) years, eight (8)
months and one (1) day to ten (10) years, and the incremental penalty is 25 years. Had
appellant committed simple theft, the penalty should have been twenty years of reclusion
temporal. In qualified theft, the penalty is two degrees higher. Thus the penalty of reclusion
perpetua should be imposed.22

Pursuant to Article 5 of the Revised Penal Code, we recommend executive clemency. In People
v. Tomotorgo24 the Court recommended executive clemency to appellant taking into
consideration the evidence that he only intended to maltreat his spouse resulting in her death,
his manifest repentant attitude and remorse for his act. In People v. Abano,25 appellant was
convicted of parricide and murder but the court recommended executive clemency because the
Court considered her emotional suffering in the hands of her philandering husband. In Mendoza
v. People,26 petitioner was convicted for failure to remit the contributions of his employer.
Petitioner had managed to settle his obligation but he was not eligible for condonation under
Republic Act No. 9003. While it was observed that the penalty imposed on petitioner is harsh,
the Court had to apply the law to its full extent. Thus, the Court recommended executive
clemency.

In this case, the resulting penalty is reclusion perpetua. This penalty will be suffered by the driver
and the helpers. The operator of the illegal logging business has not been apprehended. While
we sympathize with the plight of petitioners who were merely following orders and were
consequently caught in possession of the lumber, we must still apply the law in full force. Dura
lex sed lex. But considering the facts about petitioners' participation in the crime, and guided by
jurisprudence on instances when the facts of the crime elicited the Court's compassion for the
accused, we recommend executive clemency.chanrobleslaw

WHEREFORE, the petition is hereby DENIED. The 29 March 2010 Decision of the Court of
Appeals in CA-G.R. CR No. 30729 is AFFIRMED with MODIFICATION. Petitioners ERNIE
IDANAN, NANLY DEL BARRIO and MARLON PLOPENIO are hereby found GUILTY beyond
reasonable doubt for violation of Section 68 of Presidential Decree No. 705, as amended, and
sentenced to suffer the penalty of reclusion perpetua. Pursuant to Article 5 of the Revised Penal
Code, the Court shall TRANSMIT the case to the Chief Executive, through the Department of
Justice, and RECOMMENDS the grant of executive clemency to petitioners.

SO ORDERED.cralawlawlibrary

FIRST DIVISION
June 15, 2016
G.R. No. 211269
RUBEN E. TIU, Petitioner, MONTHS
vs.
HON. NATIVIDAD G. DIZON, Acting Chairperson of the Board of Pardons and Parole,
HON. FRANKLIN JESUS BUCAYU, Director of the Bureau of Corrections, HON. 01 October 1999 – 01 October 2001
SECRETARY LEILA M. DE LIMA of the Department of Justice, HON. PAQUITO N. OCHOA
JR., the Executive Secretary, Respondents.
01 October 2002 – 01 October 2005
DECISION
PERLAS-BERNABE, J.:
01 October 2006 – 01 October 2010
Before the Court is a petition for habeas corpus 1 filed by petitioner Ruben E. Tiu (petitioner),
who is detained at the Sablayan Prison and Penal Farm in Sablayan, Occidental Mindoro,
seeking his immediate release from prison on the strength of his conditional pardon without
parole conditions, as well as the automatic reduction of his sentence by virtue of his status as a
penal colonist.2
The Facts
3
On June 16, 2000, petitioner and two others were found guilty beyond reasonable doubt by the
Regional Trial Court of Makati City, Branch 143, of selling, delivering, and giving away to a
poseur-buyer 1,977 grams of methamphetamine hydrochloride, commonly known as "shabu," a
regulated drug, without authority of law or corresponding license therefor. 4 Consequently, they
were sentenced to suffer the penalty of reclusion perpetua and to pay the fine of ₱10,000,000.00
each. 5 Their conviction, which was affirmed by the Court in a Decision 6 dated March 10, 2004,
became final and executory on July 29, 2004.7
On March 24, 2009, the Board of Pardons and Parole (BPP) issued Resolution No. 022-3-
098 recommending the grant of executive clemency to petitioner, among many others. On June
3, 2010, acting on said recommendation, then President Gloria Macapagal-Arroyo (PGMA)
granted 9 him "conditional pardon without parole conditions," 10 but was, nonetheless, still
"subject to the conditions indicated in [the individual pardon papers]." 11 It turned out, however,
that no such papers were issued in petitioner's favor. Thus, petitioner repeatedly requested 12 for
a certificate of conditional pardon without parole conditions from the Legal Affairs Office of the
Office of the President (OP), but said requests were denied by Deputy Executive Secretary for
Legal Affairs Michael G. Aguinaldo (Deputy Executive Secretary Aguinaldo) in three (3) separate
letters dated March 13, 2013, 13 August 12, 2013, 14 and August 14, 2013, 15 informing petitioner
that the records of his case were referred back to the BPP. Respondent Natividad G. Dizon,
Chairman of the BPP, confirmed in a letter16 dated September 5, 2013 that: (a) petitioner's
Certificate of Conditional Pardon without Parole Conditions was not signed by PGMA; (b)
consequently, the documents relative to petitioner's case were returned to the BPP; and (c) the
BPP had resolved to defer action thereon pending compliance with all the basic requirements for
executive clemency.17
In the meantime, President Benigno Simeon C. Aquino III signed into law Republic Act No. (RA)
10592, 18 which, subject to its provisions, would substantially increase the Good Conduct Time
Allowance (GCTA) of qualified inmates. Thus, on July 27, 2013, petitioner's carpeta was
returned to the Bureau of Corrections in Muntinlupa City for the re-computation of his time
served.19
On July 7, 2014, petitioner filed the instant Amended Petition for Habeas Corpus, 20 insisting on
the efficacy and enforceability of his conditional pardon without parole conditions, which
allegedly necessitates his release from prison. Further, he claims that he is entitled to nineteen
(19) years and seven (7) months of GCTA, computed hereafter, which, when tacked to his actual
service of fourteen (14) years and nine (9) months, would add up to thirty-four (34) years and
four (4) months, or more than his alleged reduced sentence of thirty (30) years: 21
DAYS GCTA MONTHLY GCTA
20 days 24 months
23 days 36 months
25 days 178 months
01 October 2011 – 01 July 2014 30 days 44 months
1âwphi1
He argues that, since he was granted a "colonist status" by then Director of Corrections
Gaudencio S. Pangilinan (Director of Corrections Pangilinan) on December 21, 2011, as
contained in Correction's Order No. 015-5-2012,22his sentence was automatically reduced to
thirty (30) years 23 pursuant to Section 7 (b), Chapter 3, Part II, Book I of the Bureau of
Corrections Operating Manual (BuCor-OM), the pertinent portions of which read as follows:
SECTION 7. Privileges of a colonist. - A colonist shall have the following privileges:
a. credit of an additional GCTA of five (5) days for each calendar month
while he retains said classification aside from the regular GCTA authorized
under Article 97 of the Revised Penal Code;
b. automatic reduction of the life sentence imposed on the colonist to a
sentence of thirty (30) years;
x x x x (Emphasis and underscoring supplied)
To bolster his claim of reduction of sentence, petitioner cites 24 Sections 5 and 7 of Act No.
2489, 25 which provide for automatic modification of sentence from life imprisonment to thirty (30)
years for prisoners receiving and retaining the classification of penal colonists or trusties. He
theorizes26 that, although said law requires executive approval for such classification, his
colonist status was nonetheless "regularly awarded" by the Director of Corrections whose
authority to so classify him as such is derived from Section 6, Chapter 3, Part II, Book I of the
BuCor-OM. The aforementioned provisions read:
Provisions in Act No. 2489
Section 5. Prisoners serving sentences of life imprisonment receiving and retaining the
classification of penal colonists or trusties will automatically have the sentence of life
imprisonment modified to a sentence of thirty years when receiving the executive approval
for this classification upon which the regular credit now authorized by law and special credit
authorized in the preceding paragraph, for good conduct, may be made.
Section 7. The provisions of this Act as applied in the case of penal colonists and trusties
may, by executive approval and upon recommendation of the Director of Prisons [(now
Director of Corrections)], be made applicable to all first-class workmen confined in Bilibid
Prison who have earned the privilege of classification as penal colonists or trusties by serving
one-fifth of the time sentence as imposed by the court, or seven years in the case of a life-
sentenced prisoner, in
addition to the compensation allowed, if any of such first-class workmen shall by written petition
elect to remain in the industrial division at Bilibid Prison: Provided, That no prisoner shall receive
the benefit of this section during the first two years of imprisonment unless authorized by the
Director of Prisons [(now Director of Corrections)] for special reasons. (Emphases and
underscoring supplied)
Section 6, Chapter 3, Part II, Book I of the BuCor-OM
Section 6. Colonist. - The Director may, upon the recommendation of the Classification
Board. classify an inmate who has the following qualifications as a colonist:
a. be at least a first class inmate and has served one (1) year immediately preceding the
completion of the period specified in the following qualifications;
b. has served imprisonment with good conduct for a period equivalent to one fifth (1/5) of the
maximum term of his prison sentence, or seven (7) years in the case of a life sentence.
(Emphasis and underscoring supplied)
Finally, petitioner invokes Section 527 of RA 10592, which provides that the time allowances for
good conduct once granted shall not be revoked.28He further proposes that RA 10592 be
given retroactive effect in light of the liberal construction provided for in the rules to favor
detained or convicted prisoners like him.29
On the other hand, herein respondents, through the Office of the Solicitor General (OSG),
maintain30 that a prisoner serving a sentence of life imprisonment receiving and retaining
classification as a penal colonist will automatically have his sentence modified to thirty (30) years
of imprisonment only "when receiving the executive approval for this
classification." 31 However, petitioner failed to obtain such executive approval. They argue
further against petitioner's reliance on the BuCor-OM, which is a mere administrative rule or
regulation that cannot amend Act No. 2489 by abridging or expanding its scope. 32 Petitioner's
colonist status granted merely by the Director of Corrections, without executive approval, did not
modify his sentence. 33 Hence, there being no unlawful restraint, no writ of habeas corpus should
be issued in his favor.
The Issue Before the Court
The essential issue for the Court's resolution is whether or not a writ of habeas corpus should be
issued in favor of petitioner.1âwphi1
The Court's Ruling
The petition lacks merit.
The object of the writ of habeas corpus is to inquire into the legality of the detention, and,
if the detention is found to be illegal, to require the release of the detainee. Well-settled is
the rule that the writ will not issue where the person in whose behalf the writ is sought is in the
custody of an officer under process issued by a court or judge with jurisdiction or by virtue of a
judgment or order of a court of record.34 The writ is denied if the petitioner fails to show facts that
he is entitled thereto ex merito justicias.35
In this case, petitioner is serving sentence by virtue of a final judgment convicting him of the
offense of selling and delivering prohibited drugs defined and penalized under Section 15, Article
III of RA 6425,36 as amended by RA 7659. 37 He failed to show, however, that his further
incarceration is no longer lawful and that he is entitled to relief under a writ of habeas corpus.
First. Petitioner's insistence on the efficacy and enforceability of the conditional pardon without
parole conditions granted to him by PGMA on June 3, 2010 deserves scant consideration.
It must be emphasized that pardon is an act of grace, proceeding from the power entrusted with
the execution of the laws, which exempts the individual, on whom it is bestowed, from the
punishment the law inflicts for a crime he has committed. It is the private, though official act of
the executive magistrate, delivered to the individual for whose benefit it is intended and not
communicated officially to the court. A pardon is a deed, to the validity of which delivery is
essential.38
The executive clemency extended by PGMA on June 3, 2010 to a number of prisoners including
petitioner was made "subject to the conditions indicated in the corresponding documents." 39 It is
undisputed, however, that no individual pardon papers were issued in petitioner's favour, thereby
rendering the grant of executive clemency to him as incomplete and ineffective, as clarified by
Deputy Executive Secretary Aguinaldo. 40 The necessity for the individual pardon papers is best
explained by the nature of a conditional pardon, which is "a contract between the sovereign
power or the Chief Executive and the convicted criminal to the effect that the former will release
the latter subject to the condition that if he does not comply with the terms of the pardon, he will
be recommitted to prison to serve the unexpired portion of the sentence or an additional one. By
the pardonee's consent to the terms stipulated in this contract, the pardonee has thereby placed
himself under the supervision of the Chief Executive or his delegate who is duty-bound to see to
it that the pardonee complies with the terms and conditions of the pardon." 41The individual
pardon papers, therefore, contain the terms and conditions of the contract of pardon, the
compliance of which is essential to the pardonee's freedom from recommitment to prison.
Notably, when the records of petitioner's case were referred back to the BPP, it required
compliance first with all the basic requirements for executive clemency before acting
thereon.42 This is not to say, however, that petitioner's pardon papers may not have been issued
due to non-compliance with the requirements, which is a matter that the Court shall not, and
could not, resolve here. This is because the grant of pardon and the determination of the terms
and conditions of a conditional pardon are purely executive acts which are not subject to judicial
scrutiny.43
Second. As correctly argued by the OSG, the conferment by the Director of Corrections of a
colonist status to petitioner did not operate to reduce the latter's sentence. Section 5 of Act No.
2489 is clear and unambiguous: "[p]risoners serving sentences of life imprisonment receiving
and retaining the classification of penal colonistsor trusties will automatically have the
sentence of life imprisonment modified to a sentence of thirty years when receiving the
executive approval for this classification upon which the regular credit now authorized by law
and special credit authorized in the preceding paragraph, for good conduct, may be made."44
The wording of the law is such that the act of classification as a penal colonist or trustie
is separate from and necessarily precedes the act of approval by the Executive. Under
Section 6, Chapter 3, Part II, Book I of the BuCor-OM quoted earlier, the Director of Corrections
may, upon the recommendation of the Classification Board45 of the Bureau of Corrections,
classify an inmate as a colonist. It is crucial, however, that the prisoner not only receives, but
retains such classification, because the grant of a colonist status may, for cause, be revoked at
any time by the Superintendent with the approval of the Director of Corrections pursuant to
Section 946 of the same Chapter. It is the classification of the penal colonist and trustie of the
Director of Corrections which subsequently receives executive approval.

The foregoing is bolstered by the fact that the reduction of a prisoner's sentence is a partial
pardon,47 and our Constitution reposes in the President the power and the exclusive
prerogative to extend the same.48 The 1987 Constitution, specifically under Section 19, Article
VII thereof, provides that the President possesses the power to grant pardons, along with other
acts of executive clemency, 49 which petitioner explicitly recognized by applying for commutation
of sentence even during the pendency of his request for the implementation of the conditional
pardon. 50 Section 19, Article VII of the 1987 Constitution reads:

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress.

It has long been recognized that the exercise of the pardoning power, notwithstanding the
judicial determination of guilt of the accused, demands the exclusive exercise by the
President of the constitutionally vested power. 51Stated otherwise, since the Chief Executive is
required by the Constitution to act in person, he may not delegate the authority to pardon
prisoners under the doctrine of qualified political agency, which "essentially postulates that the
heads of the various executive departments are the alter egos of the President, and, thus, the
actions taken by such heads in the performance of their official duties are deemed the acts of
the President unless the President himself should disapprove such acts."52

In sum, there being no unlawful restraint on petitioner's liberty, no relief under a writ of habeas
corpus can be granted to him.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14279 October 31, 1961
THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners,
vs.
EASTERN SEA TRADING, respondent.
Office of the Solicitor General for petitioners.
Valentin Gutierrez for respondent.
CONCEPCION, J.:
Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the
Commissioner of Customs.
Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic
which arrived at the Port of Manila from August 25 to September 7, 1954. Some shipments
came from Japan and others from Hong Kong. In as much as none of the shipments had the
certificate required by Central Bank Circulars Nos. 44 and 45 for the release thereof, the goods
thus imported were seized and subjected to forfeiture proceedings for alleged violations of
section 1363(f) of the Revised Administrative Code, in relation to the aforementioned circulars of
the Central Bank. In due course, the Collector of Customs of Manila rendered a decision on
September 4, 1956, declaring said goods forfeited to the Government and — the goods having
been, in the meantime, released to the consignees on surety bonds, filed by the same, as
principal, and the Alto Surety & Insurance Co., Inc., as surety, in compliance with orders of the
Court of First Instance of Manila, in Civil Cases Nos. 23942 and 23852 thereof — directing that
the amounts of said bonds be paid, by said principal and surety, jointly and severally, to the
Bureau of Customs, within thirty (30) days from notice.
On appeal taken by the consignee, said decision was affirmed by the Commissioner of Customs
on December 27, 1956. Subsequently, the consignee sought a review of the decision of said two
(2) officers by the Court of Tax Appeals, which reversed the decision of the Commissioner of
Customs and ordered that the aforementioned bonds be cancelled and withdrawn. Hence, the
present petition of the Commissioner of Customs for review of the decision of the Court of Tax
Appeals.
The latter is based upon the following premises, namely: that the Central Bank has no authority
to regulate transactions not involving foreign exchange; that the shipments in question are in the
nature of "no-dollar" imports; that, as such, the aforementioned shipments do not involve foreign
exchange; that, insofar as a Central Bank license and a certificate authorizing the importation or
release of the goods under consideration are required by Central Bank Circulars Nos. 44 and 45,
the latter are null and void; and that the seizure and forfeiture of the goods imported from Japan
cannot be justified under Executive Order No. 328,1 not only because the same seeks to
implement an executive agreement2 — extending the effectivity of our3 Trades and Financial
Agreements4 with Japan — which (executive agreement), it believed, is of dubious validity, but,
also, because there is no governmental agency authorized to issue the import license required
by the aforementioned executive order.
The authority of the Central Bank to regulate no-dollar imports and the validity of the
aforementioned Circulars Nos. 44, and 45 have already been passed upon and repeatedly
upheld by this Court (Pascual vs. Commissioner of Customs, L-10979 [June 30, 1959]; Acting
Commissioner of Customs vs. Leuterio, L-9142 [October 17, 1959] Commissioner of Customs
vs. Pascual, L-9836 [November 18, 1959]; Commissioner of Customs vs. Serree Investment
Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-14274
[November 29, 1960]), for the reason that the broad powers of the Central Bank, under its
charter, to maintain our monetary stability and to preserve the international value of our
currency, under section 2 of Republic Act No. 265, in relation to section 14 of said Act —
authorizing the bank to issue such rules and regulations as it may consider necessary for the
effective discharge of the responsibilities and the exercise of the powers assigned to the
Monetary Board and to the Central Bank — connote the authority to regulate no-dollar imports,
owing to the influence and effect that the same may and do have upon the stability of our peso
and its international value.
The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought
to be implemented by Executive Order No. 328, owing to the fact that our Senate had not
concurred in the making of said executive agreement. The concurrence of said House of
Congress is required by our fundamental law in the making of "treaties" (Constitution of the
Philippines, Article VII, Section 10[7]), which are, however, distinct and different from "executive
agreements," which may be validly entered into without such concurrence.
Treaties are formal documents which require ratification with the approval of two thirds
of the Senate. Executive agreements become binding through executive action
without the need of a vote by the Senate or by Congress.
xxx xxx xxx
. . . the right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the
earliest days of our history we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements and
the settlement of claims. The validity of these has never been seriously questioned by
our courts.
xxx xxx xxx
Agreements with respect to the registration of trade-marks have been concluded by
the Executive with various countries under the Act of Congress of March 3, 1881 (21
Stat. 502). Postal conventions regulating the reciprocal treatment of mail matters,
money orders, parcel post, etc., have been concluded by the Postmaster General with
various countries under authorization by Congress beginning with the Act of February
20, 1792 (1 Stat. 232, 239). Ten executive agreements were concluded by the
President pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine
such agreements were entered into under the Dingley Tariff Act 1897 (30 Stat. 151,
203, 214). A very much larger number of agreements, along the lines of the one with
Rumania previously referred to, providing for most-favored-nation treatment in
customs and related matters have been entered into since the passage of the Tariff
Act of 1922, not by direction of the Act but in harmony with it.
xxx xxx xxx
International agreements involving political issues or changes of national policy and
those involving international arrangements of a permanent character usually take the
form of treaties. But international agreements embodying adjustments of
detail carrying out well-established national policies and traditions and those involving
arrangements of a more or less temporary nature usually take the form of executive
agreements.
xxx xxx xxx
 Furthermore, the United States Supreme Court has expressly recognized the validity
and constitutionality of executive agreements entered into without Senate approval.
(39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis-Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed.
1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d. 288;
Yale Law Journal, Vol. 15, pp. 1905-1906; California Law Review, Vol. 25, pp. 670-
675; Hyde on International Law [Revised Edition], Vol. 2, pp. 1405, 1416-1418;
Willoughby on the U.S. Constitutional Law, Vol. I [2d ed.], pp. 537-540; Moore,
International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest,
Vol. V, pp. 390-407). (Emphasis supplied.)
In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in
his work on "The Constitutionality of Trade Agreement Acts":
Agreements concluded by the President which fall short of treaties are commonly
referred to as executive agreements and are no less common in our scheme of
government than are the more formal instruments — treaties and conventions. They
sometimes take the form of exchanges of notes and at other times that of more formal
documents denominated "agreements" time or "protocols". The point where ordinary
correspondence between this and other governments ends and agreements —
whether denominated executive agreements or exchanges of notes or otherwise —
begin, may sometimes be difficult of ready ascertainment. It would be useless to
undertake to discuss here the large variety of executive agreements as such,
concluded from time to time. Hundreds of executive agreements, other than those
entered into under the trade-agreements act, have been negotiated with foreign
governments. . . . It would seem to be sufficient, in order to show that the trade
agreements under the act of 1934 are not anomalous in character, that they are not
treaties, and that they have abundant precedent in our history, to refer to certain
classes of agreements heretofore entered into by the Executive without the approval
of the Senate. They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil aircraft, customs matters, and
commercial relations generally, international claims, postal matters, the registration of
trademarks and copyrights, etcetera. Some of them were concluded not by specific
congressional authorization but in conformity with policies declared in acts of
Congress with respect to the general subject matter, such as tariff acts; while still
others, particularly those with respect of the settlement of claims against foreign
governments, were concluded independently of any legislation." (39 Columbia Law
Review, pp. 651, 755.)
The validity of the executive agreement in question is thus patent. In fact, the so-called Parity
Rights provided for in the Ordinance Appended to our Constitution were, prior thereto, the
subject of an executive agreement, made without the concurrence of two-thirds (2/3) of the
Senate of the United States.
Lastly, the lower court held that it would be unreasonable to require from respondent-appellee
an import license when the Import Control Commission was no longer in existence and, hence,
there was, said court believed, no agency authorized to issue the aforementioned license. This
conclusion is untenable, for the authority to issue the aforementioned licenses was not vested
exclusively upon the Import Control Commission or Administration. Executive Order No. 328
provided for export or import licenses "from the Central Bank of the Philippines or the Import
Control Administration" or Commission. Indeed, the latter was created only to perform the task of
implementing certain objectives of the Monetary Board and the Central Bank, which otherwise
had to be undertaken by these two (2) agencies. Upon the abolition of said Commission, the
duty to provide means and ways for the accomplishment of said objectives had merely to be
discharged directly by the Monetary Board and the Central Bank, even if the aforementioned
Executive Order had been silent thereon.
WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered
affirming that of the Commissioner of Customs, with cost against respondents defendant-
appellee, Eastern Sea Trading. It is so ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes, Dizon and De Leon,
JJ., concur.
Barrera, J., took no part.
Footnotes
1
Dated June 22, 1950. It provides, inter alia, that from and after said date, no
commodity may be exported to or imported from Occupied Japan without an export or
import license from the Central Bank of the Philippines or the Import Control
Administration, and that the annual exports and imports to the Philippines and from
Occupied Japan, as contained in the Trade Plan shall be allocated and the licenses
therefor shall be issued only to bona fide Philippine exporters and importers, subject to
the provisions of section 9 of said Executive Order and to such rules and regulations
as may be prescribed by the Import Control Administration and the Central Bank of the
Philippines.
2
According to a communication dated April 24, 1957 of the then Acting Secretary of
Foreign Affairs (Exhibit F), Japan was subrogated into the rights, obligations and
interests of the SCAP and Japan on March 19, 1952, and since then the agreements
have been extended mutatis mutandis 18 times, the current one to expire at the end of
April, 1957.
3
The Trade Agreement, dated May 18, 1950, provides, inter alia, for the adoption of a
trade plan, on an annual basis, between the Philippines and Occupied Japan; that,
subject to exceptions, all trade shall be conducted in accordance with the Financial
Agreement between the two countries, and through specified channels; that subject to
exchange, import and export control restrictions, both countries would permit the
importation from and exportation to each other of the commodities specified in the
trade plan, within specified limits; that consultations would be held for necessary
modifications of the trade plan; that a machinery would be established to ensure
accurate and up-to-date information regarding the operation of the agreement and to
insure the implementation of the trade plan; and that the parties would do everything
feasible to ensure compliance with the export-import control, exchange control and
such other controls pertaining to international trade as may be in force in their
respective territories from time to time. The agreement, likewise, specifies the method
of revision or cancellation thereof, the procedure for the review of the trading position
between the parties and the time of its effectivity (upon "exchange of formal
ratification", pending which, "it shall take effect upon signature by authorized
representatives as modus vivendi between the parties").
4
The Financial Agreement, dated May 18, 1950, provides, inter alia, that all
transactions covered by the Trade Agreement shall be invoiced in U.S.A. dollars and
shall be entered into the account of each party to be maintained in the books of the
principal financial agent banks designated by each party; that debits and credits shall
be offset against each other in said accounts and payments shall be made on the net
balance only; that the Agreement may be revised in the manner therein stated; that
the representatives of both parties may negotiate and conclude of the agreement; and
that the same shall be effective upon exchange of formal ratification, pending which it
shall take effect upon signature of the agreement as a modus vivendi between the
parties.
 EN BANC
[G.R. No. 138570. October 10, 2000]
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS
MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United
Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG
MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR,
and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE
SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO
SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN.
ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR
FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and
SENATOR FRANCISCO TATAD, respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,
AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A.
GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as Executive
Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and
HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.
[G.R. No. 138587. October 10, 2000]
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners,
vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR.,
ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS
F. OPLE and RODOLFO G. BIAZON, respondents.
[G.R. No. 138680. October 10, 2000]
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose
Aguila Grapilon, petitioners, vs. JOSEPH EJERCITO ESTRADA, in his capacity
as President, Republic of the Philippines, and HON. DOMINGO SIAZON, in his
capacity as Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000]
JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA, ROLANDO
SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A.
AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V.
SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE
SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR
BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS
ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN
RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari and
prohibition are issues relating to, and borne by, an agreement forged in the turn of the last
century between the Republic of the Philippines and the United States of America -the Visiting
Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military
Bases Agreement which formalized, among others, the use of installations in the Philippine
territory by United States military personnel. To further strengthen their defense and security
relationship, the Philippines and the United States entered into a Mutual Defense Treaty on
August 30, 1951. Under the treaty, the parties agreed to respond to any external armed attack
on their territory, armed forces, public vessels, and aircraft. [1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for a possible extension of the military bases
agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty
of Friendship, Cooperation and Security which, in effect, would have extended the presence of
US military bases in the Philippines.[2] With the expiration of the RP-US Military Bases
Agreement, the periodic military exercises conducted between the two countries were held in
abeyance. Notwithstanding, the defense and security relationship between the Philippines and
the United States of America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign
Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on the complementing strategic
interests of the United States and the Philippines in the Asia-Pacific region. Both sides
discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA for
brevity). Negotiations by both panels on the VFA led to a consolidated draft text, which in turn
resulted to a final series of conferences and negotiations[3] that culminated in Manila on January
12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved the VFA, which was
respectively signed by public respondent Secretary Siazon and Unites States Ambassador
Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of
Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the Senate of the Philippines,[5] the Instrument of
Ratification, the letter of the President[6] and the VFA, for concurrence pursuant to Section 21,
Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on
Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense and
Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and
recommendation. Thereafter, joint public hearings were held by the two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
443[8] recommending the concurrence of the Senate to the VFA and the creation of a Legislative
Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by
a two-thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was then re-numbered as
Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism
for regulating the circumstances and conditions under which US Armed Forces and defense
personnel may be present in the Philippines, and is quoted in its full text, hereunder:
 Article I
Definitions
As used in this Agreement, United States personnel means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by
the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States
armed forces or who are accompanying the United States armed forces, such
as employees of the American Red Cross and the United Services
Organization.
Article II
Respect for Law
It is the duty of the United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this agreement,
and, in particular, from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities
covered by this agreement.
2. United States military personnel shall be exempt from passport and visa regulations
upon entering and departing the Philippines.
3. The following documents only, which shall be presented on demand, shall be required
in respect of United States military personnel who enter the Philippines:
(a) personal identity card issued by the appropriate United States authority showing
full name, date of birth, rank or grade and service number (if any), branch of
service and photograph;
(b) individual or collective document issued by the appropriate United States
authority, authorizing the travel or visit and identifying the individual or group
as United States military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a declaration
of health, and when required by the cognizant representative of the
Government of the Philippines, shall conduct a quarantine inspection and will
certify that the aircraft or vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft or United States vessels or
cargoes thereon shall be conducted by the United States commanding officer
in accordance with the international health regulations as promulgated by the
World Health Organization, and mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa requirements but shall
present, upon demand, valid passports upon entry and departure of the Philippines.
5. If the Government of the Philippines has requested the removal of any United States
personnel from its territory, the United States authorities shall be responsible for
receiving the person concerned within its own territory or otherwise disposing of said
person outside of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license
issued by the appropriate United States authority to United States personnel for the
operation of military or official vehicles.
2. Vehicles owned by the Government of the United States need not be registered, but
shall have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel
with respect to offenses committed within the Philippines and punishable
under the law of the Philippines.
(b) United States military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on them by the
military law of the United States over United States personnel in the
Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the
security of the Philippines, punishable under the laws of the
Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United
States personnel with respect to offenses, including offenses relating
to the security of the United States, punishable under the laws of the
United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an
offense relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules
shall apply:
 (a) Philippine authorities shall have the primary right to exercise jurisdiction over
all offenses committed by United States personnel, except in cases provided
for in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise
jurisdiction over United States personnel subject to the military law of the
United States in relation to.
(1) offenses solely against the property or security of the United States or
offenses solely against the property or person of United States
personnel; and
(2) offenses arising out of any act or omission done in performance of official
duty.
(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular
case.
(d) Recognizing the responsibility of the United States military authorities to
maintain good order and discipline among their forces, Philippine authorities
will, upon request by the United States, waive their primary right to exercise
jurisdiction except in cases of particular importance to the Philippines. If the
Government of the Philippines determines that the case is of particular
importance, it shall communicate such determination to the United States
authorities within twenty (20) days after the Philippine authorities receive the
United States request.
(e) When the United States military commander determines that an offense
charged by authorities of the Philippines against United states personnel
arises out of an act or omission done in the performance of official duty, the
commander will issue a certificate setting forth such determination. This
certificate will be transmitted to the appropriate authorities of the Philippines
and will constitute sufficient proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the circumstances of the case
require a review of the duty certificate, United States military authorities and
Philippine authorities shall consult immediately. Philippine authorities at the
highest levels may also present any information bearing on its validity.
United States military authorities shall take full account of the Philippine
position. Where appropriate, United States military authorities will take
disciplinary or other action against offenders in official duty cases, and notify
the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it
shall notify the authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each
other of the disposition of all cases in which both the authorities of the
Philippines and the United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and
United States shall assist each other in the arrest of United States personnel in
the Philippines and in handling them over to authorities who are to exercise
jurisdiction in accordance with the provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of the
arrest or detention of United States personnel who are subject of Philippine
primary or exclusive jurisdiction. Philippine authorities shall promptly notify
United States military authorities of the arrest or detention of any United States
personnel.
6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military
authorities, if they so request, from the commission of the offense until
completion of all judicial proceedings. United States military authorities shall,
upon formal notification by the Philippine authorities and without delay, make
such personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has been
charged in extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody, which the United
States Government shall take into full account. In the event Philippine judicial
proceedings are not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one-year period will not
include the time necessary to appeal. Also, the one-year period will not include
any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange for
the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities
shall assist each other in the carrying out of all necessary investigation into
offenses and shall cooperate in providing for the attendance of witnesses and in
the collection and production of evidence, including seizure and, in proper
cases, the delivery of objects connected with an offense.
8. When United States personnel have been tried in accordance with the provisions
of this Article and have been acquitted or have been convicted and are serving,
or have served their sentence, or have had their sentence remitted or
suspended, or have been pardoned, they may not be tried again for the same
offense in the Philippines. Nothing in this paragraph, however, shall prevent
United States military authorities from trying United States personnel for any
violation of rules of discipline arising from the act or omission which constituted
an offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards
established by the law of the Philippines. At the minimum, United States
personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made
against them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such
witnesses;
(d) To present evidence in their defense and to have compulsory process for
obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the
same basis as nationals of the Philippines;
 (f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States
authorities, and to have such authorities present at all judicial proceedings.
These proceedings shall be public unless the court, in accordance with
Philippine laws, excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States
personnel shall be carried out in facilities agreed on by appropriate Philippine
and United States authorities. United States Personnel serving sentences in the
Philippines shall have the right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of
ordinary jurisdiction, and shall not be subject to the jurisdiction of Philippine
military or religious courts.
Article VI
Claims
1. Except for contractual arrangements, including United States foreign military
sales letters of offer and acceptance and leases of military equipment, both
governments waive any and all claims against each other for damage, loss or
destruction to property of each others armed forces or for death or injury to their
military and civilian personnel arising from activities to which this agreement
applies.
2. For claims against the United States, other than contractual claims and those to
which paragraph 1 applies, the United States Government, in accordance with
United States law regarding foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims for damage, loss, personal
injury or death, caused by acts or omissions of United States personnel, or
otherwise incident to the non-combat activities of the United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall
be free of all Philippine duties, taxes and other similar charges. Title to such
property shall remain with the United States, which may remove such property
from the Philippines at any time, free from export duties, taxes, and other similar
charges. The exemptions provided in this paragraph shall also extend to any
duty, tax, or other similar charges which would otherwise be assessed upon
such property after importation into, or acquisition within, the Philippines. Such
property may be removed from the Philippines, or disposed of therein, provided
that disposition of such property in the Philippines to persons or entities not
entitled to exemption from applicable taxes and duties shall be subject to
payment of such taxes, and duties and prior approval of the Philippine
Government.
2. Reasonable quantities of personal baggage, personal effects, and other property
for the personal use of United States personnel may be imported into and used
in the Philippines free of all duties, taxes and other similar charges during the
period of their temporary stay in the Philippines. Transfers to persons or entities
in the Philippines not entitled to import privileges may only be made upon prior
approval of the appropriate Philippine authorities including payment by the
recipient of applicable duties and taxes imposed in accordance with the laws of
the Philippines. The exportation of such property and of property acquired in the
Philippines by United States personnel shall be free of all Philippine duties,
taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in accordance
with procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The movement
of vessels shall be in accordance with international custom and practice
governing such vessels, and such agreed implementing arrangements as
necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces
shall not be subject to the payment of landing or port fees, navigation or over
flight charges, or tolls or other use charges, including light and harbor dues,
while in the Philippines. Aircraft operated by or for the United States armed
forces shall observe local air traffic control regulations while in the Philippines.
Vessels owned or operated by the United States solely on United States
Government non-commercial service shall not be subject to compulsory pilotage
at Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on which the parties have notified each
other in writing through the diplomatic channel that they have completed their
constitutional requirements for entry into force. This agreement shall remain in force until
the expiration of 180 days from the date on which either party gives the other party notice
in writing that it desires to terminate the agreement.
Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as legislators,
non-governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA
and impute to herein respondents grave abuse of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article
XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses
committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by
reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes
and duties for the equipment, materials supplies and other properties imported
into or acquired in the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the ground that the
latter have not shown any interest in the case, and that petitioners failed to substantiate that they
have sustained, or will sustain direct injury as a result of the operation of the VFA. [12] Petitioners,
on the other hand, counter that the validity or invalidity of the VFA is a matter of transcendental
importance which justifies their standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute must show
not only that the law is invalid, but also that he has sustained or in is in immediate, or imminent
danger of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. He must show that he has been, or is about to be, denied
some right or privilege to which he is lawfully entitled, or that he is about to be subjected to some
burdens or penalties by reason of the statute complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they
have sustained, or are in danger of sustaining any direct injury as a result of the enforcement of
the VFA. As taxpayers, petitioners have not established that the VFA involves the exercise by
Congress of its taxing or spending powers.[15] On this point, it bears stressing that a taxpayers
suit refers to a case where the act complained of directly involves the illegal disbursement of
public funds derived from taxation.[16] Thus, in Bugnay Const. & Development Corp. vs.
Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured
by the judgment or entitled to the avails of the suit as a real party in interest. Before he can
invoke the power of judicial review, he must specifically prove that he has sufficient interest in
preventing the illegal expenditure of money raised by taxation and that he will sustain a direct
injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that
he has merely a general interest common to all members of the public.
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in
the absence of any allegation by petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the present
suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador
Enriquez,[18] sustained the legal standing of a member of the Senate and the House of
Representatives to question the validity of a presidential veto or a condition imposed on an item
in an appropriation bull, we cannot, at this instance, similarly uphold petitioners standing as
members of Congress, in the absence of a clear showing of any direct injury to their person or to
the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of
the power of Congress to grant tax exemptions, are more apparent than real. While it may be
true that petitioners pointed to provisions of the VFA which allegedly impair their legislative
powers, petitioners failed however to sufficiently show that they have in fact suffered direct
injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing
in these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to
bring this suit in the absence of a board resolution from its Board of Governors authorizing its
National President to commence the present action.[19]
Notwithstanding, in view of the paramount importance and the constitutional significance
of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes
aside the procedural barrier and takes cognizance of the petitions, as we have done in the
early Emergency Powers Cases,[20] where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they were involving only an indirect and
general interest shared in common with the public. The Court dismissed the objection that they
were not proper parties and ruled that transcendental importance to the public of these
cases demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure. We have since then applied the exception in many other
cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175
SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs.
COMELEC,[21] Daza vs. Singson,[22] and Basco vs. Phil. Amusement and Gaming
Corporation,[23] where we emphatically held:
Considering however the importance to the public of the case at bar, and in keeping with the
Courts duty, under the 1987 Constitution, to determine whether or not the other branches of the
government have kept themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled that in
cases of transcendental importance, the Court may relax the standing requirements and
allow a suit to prosper even where there is no direct injury to the party claiming the right
of judicial review.
Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the departments of the government a
becoming respect for each others acts,[25] this Court nevertheless resolves to take cognizance of
the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power to
concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering
that the VFA has for its subject the presence of foreign military troops in the
Philippines.Respondents, on the contrary, maintain that Section 21, Article VII should apply
inasmuch as the VFA is not a basing arrangement but an agreement which involves merely the
temporary visits of United States personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the
Senate on treaties or international agreements. Section 21, Article VII, which herein respondents
invoke, reads:
No treaty or international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in by the senate and,
when the Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other contracting
State.
Section 21, Article VII deals with treatise or international agreements in general, in which
case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to
make the subject treaty, or international agreement, valid and binding on the part of the
Philippines. This provision lays down the general rule on treatise or international agreements
and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to,
extradition or tax treatise or those economic in nature. All treaties or international agreements
entered into by the Philippines, regardless of subject matter, coverage, or particular designation
or appellation, requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which
involve the presence of foreign military bases, troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only one of the requisites to render compliance with
the constitutional requirements and to consider the agreement binding on the Philippines.Section
25, Article XVIII further requires that foreign military bases, troops, or facilities may be allowed in
the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of
the votes cast in a national referendum held for that purpose if so required by Congress, and
recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting each
other, actually share some common ground. These constitutional provisions both embody
phrases in the negative and thus, are deemed prohibitory in mandate and character. In
particular, Section 21 opens with the clause No treaty x x x, and Section 25 contains the phrase
shall not be allowed. Additionally, in both instances, the concurrence of the Senate is
indispensable to render the treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21,
Article VII, and that the Senate extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII,
the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply
with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits
of military personnel, and further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation
and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving
foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent
and in a limited sense, however, the provisions of section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of determining the number of votes required to
obtain the valid concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law
prevails over a general one. Lex specialis derogat generali. Thus, where there is in the same
statute a particular enactment and also a general one which, in its most comprehensive sense,
would include what is embraced in the former, the particular enactment must be operative, and
the general enactment must be taken to affect only such cases within its general language which
are not within the provision of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that general legislation must
give way to a special legislation on the same subject, and generally be so interpreted as to
embrace only cases in which the special provisions are not applicable (Sto. Domingo vs. de los
Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De Jesus vs.
People, 120 SCRA 760) and that where two statutes are of equal theoretical application to a
particular case, the one designed therefor specially should prevail (Wil Wilhensen Inc. vs.
Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of structure for the
establishment of a military base. On this score, the Constitution makes no distinction between
transient and permanent. Certainly, we find nothing in Section 25, Article XVIII that
requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are involved in
the VFA. Notably, a perusal of said constitutional provision reveals that the proscription
covers foreign military bases, troops, or facilities. Stated differently, this prohibition is not limited
to the entry of troops and facilities without any foreign bases being established. The clause does
not refer to foreign military bases, troops, or facilities collectively but treats them as separate
and independent subjects. The use of comma and the disjunctive word or clearly signifies
disassociation and independence of one thing from the others included in the
enumeration,[28]such that, the provision contemplates three different situations - a military treaty
the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities -
any of the three standing alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first
question is: If the country does enter into such kind of a treaty, must it cover the
three-bases, troops or facilities-or could the treaty entered into cover only one
or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers
three, the requirement will be the same.
 MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find
some. We just want to cover everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for
months and years without returning to their home country. These military warships are actually
used as substitutes for a land-home base not only of military aircraft but also of military
personnel and facilities. Besides, vessels are mobile as compared to a land-based military
headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of
Section 25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the
treaty must be duly concurred in by the Senate and, when so required by congress, ratified by
a majority of the votes cast by the people in a national referendum; and (c) recognized as a
treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the
VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with
the provisions of the Constitution, whether under the general requirement in Section 21, Article
VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes cast in a national referendum being
unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least two-thirds
of all the members of the Senate. On the other hand, Section 25, Article XVIII simply provides
that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the
Senate is clearly required so that the concurrence contemplated by law may be validly obtained
and deemed present. While it is true that Section 25, Article XVIII requires, among other things,
that the treaty-the VFA, in the instant case-be duly concurred in by the Senate, it is very true
however that said provision must be related and viewed in light of the clear mandate embodied
in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty,
or international agreement, be made by a two -thirds vote of all the members of the
Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21, Article,
VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be construed
in relation to the provisions of Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25, Article XVIII means that at least two-
thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA in the
instant case.
Under these circumstances, the charter provides that the Senate shall be composed of
twenty-four (24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or not less
than sixteen (16) members, favorably acting on the proposal is an unquestionable compliance
with the requisite number of votes mentioned in Section 21 of Article VII. The fact that there were
actually twenty-three (23) incumbent Senators at the time the voting was made, [31] will not alter in
any significant way the circumstance that more than two-thirds of the members of the Senate
concurred with the proposed VFA, even if the two-thirds vote requirement is based on this figure
of actual members (23). In this regard, the fundamental law is clear that two-thirds of the 24
Senators, or at least 16 favorable votes, suffice so as to render compliance with the strict
constitutional mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article
XVIII, means that the VFA should have the advice and consent of the United States Senate
pursuant to its own constitutional process, and that it should not be considered merely an
executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard
stating that the VFA is binding on the United States Government is conclusive, on the point that
the VFA is recognized as a treaty by the United States of America. According to respondents,
the VFA, to be binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that the other
contracting party accepts or acknowledges the agreement as a treaty.[32] To require the other
contracting state, the United States of America in this case, to submit the VFA to the United
States Senate for concurrence pursuant to its Constitution, [33] is to accord strict meaning to the
phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given
their ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. Its language should be understood in the sense they
have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as binding as
a treaty.[35] To be sure, as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments, and whatever its
particular designation.[36] There are many other terms used for a treaty or international
agreement, some of which are: act, protocol, agreement, compromis d arbitrage, concordat,
convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers,
from Hugo Grotius onward, have pointed out that the names or titles of international agreements
included under the general term treaty have little or no legal significance. Certain terms are
useful, but they furnish little more than mere description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1
regarding the use of terms in the present Convention are without prejudice to the use of those
terms, or to the meanings which may be given to them in the internal law of the State.
Thus, in international law, there is no difference between treaties and executive
agreements in their binding effect upon states concerned, as long as the negotiating
functionaries have remained within their powers.[38] International law continues to make no
distinction between treaties and executive agreements: they are equally binding obligations upon
nations.[39]
In our jurisdiction, we have recognized the binding effect of executive agreements even
without the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern
Sea Trading,[40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the necessity of
subsequent congressional approval has been confirmed by long usage. From the earliest days
of our history we have entered into executive agreements covering such subjects as commercial
and consular relations, most-favored-nation rights, patent rights, trademark and copyright
protection, postal and navigation arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts.
xxxxxxxxx
Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39 Columbia
Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S.
304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S.
203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906;
California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition],
Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp.
537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International
Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done
everything to make it a treaty, then as far as we are concerned, we will accept it as a
treaty.[41]
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to the
terms of the VFA.[42] For as long as the united States of America accepts or acknowledges the
VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is
indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of our nations
consent to be bound by said treaty, with the concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or
of the government, as the case may be, through which the formal acceptance of the treaty is
proclaimed.[43] A State may provide in its domestic legislation the process of ratification of a
treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the
treaty provides for such ratification, (b) it is otherwise established that the negotiating States
agreed that ratification should be required, (c) the representative of the State has signed the
treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to
ratification appears from the full powers of its representative, or was expressed during the
negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification.[45]
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now becomes
obligatory and incumbent on our part, under the principles of international law, to be bound by
the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution,[46]declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally
accepted rules for the conduct of its international relations. While the international obligation
devolves upon the state and not upon any particular branch, institution, or individual member of
its government, the Philippines is nonetheless responsible for violations committed by any
branch or subdivision of its government or any official thereof. As an integral part of the
community of nations, we are responsible to assure that our government, Constitution and laws
will carry out our international obligation.[47] Hence, we cannot readily plead the Constitution as a
convenient excuse for non-compliance with our obligations, duties and responsibilities under
international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: Every State has the duty to carry out in good
faith its obligations arising from treaties and other sources of international law, and it may not
invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.[48]
Equally important is Article 26 of the convention which provides that Every treaty in force
is binding upon the parties to it and must be performed by them in good faith. This is known as
the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one
of the most fundamental principles of positive international law, supported by the jurisprudence
of international tribunals.[49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a power
and performing a task conferred upon him by the Constitution-the power to enter into and ratify
treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of discretion on the part of the chief Executive in
ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section 21,
Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent
and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of
law.[50]
By constitutional fiat and by the intrinsic nature of his office, the President, as head of
State, is the sole organ and authority in the external affairs of the country. In many ways, the
President is the chief architect of the nations foreign policy; his dominance in the field of foreign
relations is (then) conceded.[51] Wielding vast powers an influence, his conduct in the external
affairs of the nation, as Jefferson describes, is executive altogether."[52]
As regards the power to enter into treaties or international agreements, the Constitution
vests the same in the President, subject only to the concurrence of at least two-thirds vote of all
the members of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful distinct boundaries and limits the metes and bounds within which each of the three political
exercise of his vast executive and diplomatic powers granted him no less than by the branches of government may exercise the powers exclusively and essentially conferred to it by
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself law.
is powerless to invade it.[53] Consequently, the acts or judgment calls of the President involving
the VFA-specifically the acts of ratification and entering into a treaty and those necessary or WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby
incidental to the exercise of such principal acts - squarely fall within the sphere of his DISMISSED.
constitutional powers and thus, may not be validly struck down, much less calibrated by this
Court, in the absence of clear showing of grave abuse of power or discretion. SO ORDERED.

It is the Courts considered view that the President, in ratifying the VFA and in submitting
the same to the Senate for concurrence, acted within the confines and limits of the powers
vested in him by the Constitution. It is of no moment that the President, in the exercise of his
wide latitude of discretion and in the honest belief that the VFA falls within the ambit of Section
21, Article VII of the Constitution, referred the VFA to the Senate for concurrence under the
aforementioned provision. Certainly, no abuse of discretion, much less a grave, patent and
whimsical abuse of judgment, may be imputed to the President in his act of ratifying the VFA and
referring the same to the Senate for the purpose of complying with the concurrence requirement
embodied in the fundamental law. In doing so, the President merely performed a constitutional
task and exercised a prerogative that chiefly pertains to the functions of his office. Even if he
erred in submitting the VFA to the Senate for concurrence under the provisions of Section 21 of
Article VII, instead of Section 25 of Article XVIII of the Constitution, still, the President may not
be faulted or scarred, much less be adjudged guilty of committing an abuse of discretion in some
patent, gross, and capricious manner.

For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the
scope of judicial inquiry into areas normally left to the political departments to decide, such as
those relating to national security, it has not altogether done away with political questions such
as those which arise in the field of foreign relations.[54] The High Tribunals function, as
sanctioned by Article VIII, Section 1, is merely (to) check whether or not the governmental
branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or
has a different view. In the absence of a showing (of) grave abuse of discretion amounting to
lack of jurisdiction, there is no occasion for the Court to exercise its corrective powerIt has no
power to look into what it thinks is apparent error.[55]

As to the power to concur with treaties, the constitution lodges the same with the Senate
alone. Thus, once the Senate[56] performs that power, or exercises its prerogative within the
boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to
constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the
exercise of its discretion and acting within the limits of such power, may not be similarly faulted
for having simply performed a task conferred and sanctioned by no less than the fundamental
law.

For the role of the Senate in relation to treaties is essentially legislative in character; [57] the
Senate, as an independent body possessed of its own erudite mind, has the prerogative to either
accept or reject the proposed agreement, and whatever action it takes in the exercise of its wide
latitude of discretion, pertains to the wisdom rather than the legality of the act. In this sense, the
Senate partakes a principal, yet delicate, role in keeping the principles of separation of
powers and of checks and balances alive and vigilantly ensures that these cherished rudiments
remain true to their form in a democratic government such as ours. The Constitution thus
animates, through this treaty-concurring power of the Senate, a healthy system of checks and
balances indispensable toward our nations pursuit of political maturity and growth. True enough,
rudimentary is the principle that matters pertaining to the wisdom of a legislative act are beyond
the ambit and province of the courts to inquire.

In fine, absent any clear showing of grave abuse of discretion on the part of respondents,
this Court- as the final arbiter of legal controversies and staunch sentinel of the rights of the
people - is then without power to conduct an incursion and meddle with such affairs purely
executive and legislative in character and nature. For the Constitution no less, maps out the

EN BANC
SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088
REP. ETTA ROSALES, PHILIPPINE
COALITION FOR THE ESTABLISHMENT
OF THE INTERNATIONAL Present:
CRIMINAL COURT, TASK FORCE
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J.,
FAMILIES OF VICTIMS OF Puno,
INVOLUNTARY DISAPPEARANCES, Panganiban,
BIANCA HACINTHA R. ROQUE, Quisumbing,
HARRISON JACOB R. ROQUE, Ynares-Santiago,
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez,
LEAVIDES G. DOMINGO, EDGARDO *Carpio,
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez,
CELESTE CEMBRANO, LIZA ABIERA, *Corona,
JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr.,
FAGELA, and ROMEL BAGARES, Azcuna,
Petitioners, Tinga,
Chico-Nazario, and
- versus - Garcia, JJ.
OFFICE OF THE EXECUTIVE
SECRETARY, represented by Promulgated:
HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
PUNO J.:
This is a petition for mandamus filed by petitioners to compel the
Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed
copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for
its concurrence in accordance with Section 21, Article VII of the 1987 Constitution.
The Rome Statute established the International Criminal Court which shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern xxx and
shall be complementary to the national criminal jurisdictions.[1] Its jurisdiction covers the crime of
genocide, crimes against humanity, war crimes and the crime of aggression as defined in the
Statute.[2] The Statute was opened for signature by all states in Rome on July 17, 1998 and had
remained open for signature until December 31, 2000 at the United Nations Headquarters in
New York. The Philippines signed the Statute on December 28, 2000 through Charge d
Affairs Enrique A. Manalo of the Philippine Mission to the United Nations. [3] Its provisions,
however, require that it be subject to ratification, acceptance or approval of the signatory
states.[4]
Petitioners filed the instant petition to compel the respondents the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed text of the treaty to the
Senate of the Philippines for ratification.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and
international law, is a function of the Senate. Hence, it is the duty of the executive department to
transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion
with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a
ministerial duty to ratify the Rome Statute under treaty law and customary international law.
Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain
from acts which would defeat the object and purpose of a treaty when they have signed the
treaty prior to ratification unless they have made their intention clear not to become parties to the
treaty.[5]
The Office of the Solicitor General, commenting for the respondents, questioned the standing of
the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on
hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the
executive department has no duty to transmit the Rome Statute to the Senate for concurrence.
A petition for mandamus may be filed when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station.[6] We have held that to be given due course, a petition
for mandamus must have been instituted by a party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of
a legal right. The petitioner in every case must therefore be an aggrieved party in the sense that
he possesses a clear legal right to be enforced and a direct interest in the duty or act to be
performed.[7] The Court will exercise its power of judicial review only if the case is brought before
it by a party who has the legal standing to raise the constitutional or legal question. Legal
standing means a personal and substantial interest in the case such that the party has sustained
or will sustain direct injury as a result of the government act that is being challenged. The term
interest is material interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental interest.[8]
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to
file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the
House of Representatives and Chairperson of its Committee on Human Rights; the Philippine
Coalition for the Establishment of the International Criminal Court which is composed of
individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute; the
Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of promoting
the cause of human rights and human rights victims in the country; the Families of Victims of
Involuntary Disappearances, a juridical entity duly organized and existing pursuant to Philippine
Laws with the avowed purpose of promoting the cause of families and victims of human rights
violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two (2) and
one (1), respectively, at the time of filing of the instant petition, and suing under the doctrine of
inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;[9] and a group of
fifth year working law students from the University of the Philippines College of Law who are
suing as taxpayers.
The question in standing is whether a party has alleged such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions.[10]
We find that among the petitioners, only Senator Pimentel has the legal standing to file the
instant suit. The other petitioners maintain their standing as advocates and defenders of human
rights, and as citizens of the country. They have not shown, however, that they have sustained
or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to
the Senate. Their contention that they will be deprived of their remedies for the protection and
enforcement of their rights does not persuade. The Rome Statute is intended to complement
national criminal laws and courts. Sufficient remedies are available under our national laws to
protect our citizens against human rights violations and petitioners can always seek redress for
any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that to the extent the powers of
Congress are impaired, so is the power of each member thereof, since his office confers a right
to participate in the exercise of the powers of that institution. [11] Thus, legislators have the
standing to maintain inviolate the prerogatives, 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. The petition at bar invokes the power of the
Senate to grant or withhold its concurrence to a treaty entered into by the executive branch, in
this case, the Rome Statute. The petition seeks to order the executive branch to transmit the
copy of the treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as
member of the institution, certainly has the legal standing to assert such authority of the Senate.
We now go to the substantive issue.
The core issue in this petition for mandamus is whether the Executive Secretary and the
Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the
Rome Statute signed by a member of the Philippine Mission to the United Nations even without
the signature of the President.
We rule in the negative.
In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the countrys sole representative with foreign
nations.[12] As the chief architect of foreign policy, the President acts as the countrys mouthpiece
with respect to international affairs. Hence, the President is vested with the authority to deal with
foreign states and governments, extend or withhold recognition, maintain diplomatic relations,
enter into treaties, and otherwise transact the business of foreign relations. [13] In the realm of
treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of
all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article
VII of the 1987 Constitution provides that no treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of the Senate. The 1935
and the 1973 Constitution also required the concurrence by the legislature to the treaties entered
into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided:
Sec. 10. (7) The President shall have the power, with the concurrence of
two-thirds of all the Members of the Senate, to make treaties xxx.
Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall
be valid and effective unless concurred in by a majority of all the Members
of the Batasang Pambansa.
The participation of the legislative branch in the treaty-making process was deemed essential to
provide a check on the executive in the field of foreign relations.[14] By requiring the concurrence
of the legislature in the treaties entered into by the President, the Constitution ensures a healthy
system of checks and balance necessary in the nations pursuit of political maturity and
growth.[15]
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to
mean that the power to ratify treaties belongs to the Senate.
We disagree.
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in
this wise:
The usual steps in the treaty-making process are: negotiation,
signature, ratification, and exchange of the instruments of ratification. The
 treaty may then be submitted for registration and publication under the U.N.
Charter, although this step is not essential to the validity of the agreement
as between the parties.
Negotiation may be undertaken directly by the head of state but he now
usually assigns this task to his authorized representatives. These
representatives are provided with credentials known as full powers, which
they exhibit to the other negotiators at the start of the formal discussions. It
is standard practice for one of the parties to submit a draft of the proposed
treaty which, together with the counter-proposals, becomes the basis of the
subsequent negotiations. The negotiations may be brief or protracted,
depending on the issues involved, and may even collapse in case the
parties are unable to come to an agreement on the points under
consideration.
If and when the negotiators finally decide on the terms of the treaty, the
same is opened for signature. This step is primarily intended as a means of
authenticating the instrument and for the purpose of symbolizing the good
faith of the parties; but, significantly, it does not indicate the final consent
of the state in cases where ratification of the treaty is required. The
document is ordinarily signed in accordance with the alternat, that is, each
of the several negotiators is allowed to sign first on the copy which he will
bring home to his own state.
Ratification, which is the next step, is the formal act by which a state
confirms and accepts the provisions of a treaty concluded by its
representatives. The purpose of ratification is to enable the contracting
states to examine the treaty more closely and to give them an
opportunity to refuse to be bound by it should they find it inimical to
their interests. It is for this reason that most treaties are made subject
to the scrutiny and consent of a department of the government other
than that which negotiated them.
xxx
The last step in the treaty-making process is the exchange of the
instruments of ratification, which usually also signifies the effectivity of the
treaty unless a different date has been agreed upon by the parties. Where
ratification is dispensed with and no effectivity clause is embodied in the
treaty, the instrument is deemed effective upon its signature. [16] [emphasis
supplied]
Petitioners arguments equate the signing of the treaty by the Philippine representative
with ratification. It should be underscored that the signing of the treaty and the ratification are
two separate and distinct steps in the treaty-making process. As earlier discussed, the signature
is primarily intended as a means of authenticating the instrument and as a symbol of the good
faith of the parties. It is usually performed by the states authorized representative in the
diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms
and accepts the provisions of a treaty concluded by its representative. It is generally held to be
an executive act, undertaken by the head of the state or of the government. [17] Thus, Executive
Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the
guidelines in the negotiation of international agreements and its ratification. It mandates that
after the treaty has been signed by the Philippine representative, the same shall be transmitted
to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the
ratification papers and forward the signed copy of the treaty to the President for ratification. After
the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to
the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of
Foreign Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of
Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a
Treaty or an Executive Agreement. The domestic requirements for the
entry into force of a treaty or an executive agreement, or any amendment
thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be
transmitted to the Department of Foreign
Affairs after their signing for the preparation
of the ratification papers. The transmittal shall
include the highlights of the agreements and
the benefits which will accrue to the
Philippines arising from them.
ii. The Department of Foreign Affairs,
pursuant to the endorsement by the
concerned agency, shall transmit the
agreements to the President of the
Philippines for his ratification. The original
signed instrument of ratification shall then be
returned to the Department of Foreign Affairs
for appropriate action.
B. Treaties.
i. All treaties, regardless of their designation,
shall comply with the requirements provided
in sub-paragraph[s] 1 and 2, item A
(Executive Agreements) of this Section. In
addition, the Department of Foreign Affairs
shall submit the treaties to the Senate of the
 Philippines for concurrence in the ratification
by the President. A certified true copy of the
treaties, in such numbers as may be required
by the Senate, together with a certified true
copy of the ratification instrument, shall
accompany the submission of the treaties to
the Senate.

ii. Upon receipt of the concurrence by the

Senate, the Department of Foreign Affairs
shall comply with the provision of the treaties
in effecting their entry into force.

Petitioners submission that the Philippines is bound under treaty law and international law to
ratify the treaty which it has signed is without basis. The signature does not signify the final
consent of the state to the treaty. It is the ratification that binds the state to the provisions
thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the
states be subject to ratification, acceptance or approval of the signatory states. Ratification is the
act by which the provisions of a treaty are formally confirmed and approved by a State. By
ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the
provisions of such treaty. After the treaty is signed by the states representative, the President,
being accountable to the people, is burdened with the responsibility and the duty to carefully
study the contents of the treaty and ensure that they are not inimical to the interest of the state
and its people. Thus, the President has the discretion even after the signing of the treaty by the
Philippine representative whether or not to ratify the same. The Vienna Convention on the Law
of Treaties does not contemplate to defeat or even restrain this power of the head of states. If
that were so, the requirement of ratification of treaties would be pointless and futile. It has been
held that a state has no legal or even moral duty to ratify a treaty which has been signed by its
plenipotentiaries.[18] There is no legal obligation to ratify a treaty, but it goes without saying that
the refusal must be based on substantial grounds and not on superficial or whimsical reasons.
Otherwise, the other state would be justified in taking offense. [19]

It should be emphasized that under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of the Senate, however, is limited
only to giving or withholding its consent, or concurrence, to the ratification. [20] Hence, it is within
the authority of the President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it.[21] Although the refusal of a state to ratify a treaty
which has been signed in its behalf is a serious step that should not be taken lightly,[22] such
decision is within the competence of the President alone, which cannot be encroached by this
Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties. [23] The Court, therefore, cannot issue the writ
of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive
branch of the government to transmit the signed text of Rome Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 209287 July 1, 2014
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG MAKABAYAN;
JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE PHILIPPINES DILIMAN, CO-
CHAIRPERSON, PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS MOVEMENT; REP.
LUZ ILAGAN, GABRIELA WOMEN'S PARTY REPRESENTATIVE; REP. CARLOS ISAGANI
ZARATE, BAY AN MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR.,
SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG KAPATIRAN
PARTY; VENCER MARI E. CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR
VILLANUEVA, CONVENOR, YOUTH ACT NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES;
PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND FLORENCIO B. ABAD,
SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209135
AUGUSTO L. SY JUCO JR., Ph.D., Petitioner,
vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF DEPARTMENT OF
BUDGET AND MANAGEMENT; AND HON. FRANKLIN MAGTUNAO DRILON, IN HIS CAP A
CITY AS THE SENATE PRESIDENT OF THE PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner,
vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT; AND EXECUTIVE SECRETARY
PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO OF THE
PRESIDENT, Respondents.
x-----------------------x
G.R. No. 209155
ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner,
vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND THE
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY DEAN
FROILAN M. BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M. BRIONES, Petitioners,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. FLORENCIO B.
ABAD, Respondents.
x-----------------------x
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,
vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT (DBM),Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN MABANTE AND REV. JOSE L.
GONZALEZ,Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE PHILIPPINES,
REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON; THE HOUSE OF
REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR.; THE
EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR.; THE DEPARTMENT OF BUDGET AND MANAGEMENT, REPRESENTED BY
SECRETARY FLORENCIO ABAD; THE DEPARTMENT OF FINANCE, REPRESENTED BY
SECRETARY CESAR V. PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED
BY ROSALIA V. DE LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN CEMENT OF GOVERNMENT
EMPLOYEES (COURAGE), REPRESENTED BY ITS 1ST VICE PRESIDENT, SANTIAGO
DASMARINAS, JR.; ROSALINDA NARTATES, FOR HERSELF AND AS NATIONAL
PRESIDENT OF THE CONSOLIDATED UNION OF EMPLOYEES NATIONAL HOUSING
AUTHORITY (CUENHA); MANUEL BACLAGON, FOR HIMSELF AND AS PRESIDENT OF
THE SOCIAL WELFARE EMPLOYEES ASSOCIATION OF THE PHILIPPINES,
DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-
DSWD CO); ANTONIA PASCUAL, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE
DEPARTMENT OF AGRARIAN REFORM EMPLOYEES ASSOCIATION (DAREA); ALBERT
MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE ENVIRONMENT AND
MANAGEMENT BUREAU EMPLOYEES UNION (EMBEU); AND MARCIAL ARABA, FOR
HIMSELF AND AS PRESIDENT OF THE KAPISANAN PARA SA KAGALINGAN NG MGA
KAW ANI NG MMDA (KKKMMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES;
PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND HON. FLORENCIO B. ABAD,
SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC), REPRESENTED BY DANTE
L. JIMENEZ,Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD, SECRETARY
OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
DECISION
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the constitutionality of the Disbursement
Acceleration Program(DAP), National Budget Circular (NBC) No. 541, and related issuances of
the Department of Budget and Management (DBM) implementing the DAP.
At the core of the controversy is Section 29(1) of Article VI of the 1987 Constitution, a provision
of the fundamental law that firmly ordains that "[n]o money shall be paid out of the Treasury
except in pursuance of an appropriation made by law." The tenor and context of the challenges
posed by the petitioners against the DAP indicate that the DAP contravened this provision by
allowing the Executive to allocate public money pooled from programmed and unprogrammed
funds of its various agencies in the guise of the President exercising his constitutional authority
under Section 25(5) of the 1987 Constitution to transfer funds out of savings to augment the
appropriations of offices within the Executive Branch of the Government. But the challenges are
further complicated by the interjection of allegations of transfer of funds to agencies or offices
outside of the Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege speech in the
Senate of the Philippines to reveal that some Senators, including himself, had been allotted an
additional ₱50 Million each as "incentive" for voting in favor of the impeachment of Chief Justice
Renato C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the DBM issued a public
statement entitled Abad: Releases to Senators Part of Spending Acceleration
Program,1 explaining that the funds released to the Senators had been part of the DAP, a
program designed by the DBM to ramp up spending to accelerate economic expansion. He
clarified that the funds had been released to the Senators based on their letters of request for
funding; and that it was not the first time that releases from the DAP had been made because
the DAP had already been instituted in 2011 to ramp up spending after sluggish disbursements
had caused the growth of the gross domestic product (GDP) to slow down. He explained that the
funds under the DAP were usually taken from (1) unreleased appropriations under Personnel
Services;2 (2) unprogrammed funds; (3) carry-over appropriations unreleased from the previous
year; and (4) budgets for slow-moving items or projects that had been realigned to support
faster-disbursing projects.
The DBM soon came out to claim in its website3 that the DAP releases had been sourced from
savings generated by the Government, and from unprogrammed funds; and that the savings had
been derived from (1) the pooling of unreleased appropriations, like unreleased Personnel
Services4 appropriations that would lapse at the end of the year, unreleased appropriations of
slow-moving projects and discontinued projects per zero based budgeting findings;5 and (2) the
withdrawal of unobligated allotments also for slow-moving programs and projects that had been
earlier released to the agencies of the National Government.
The DBM listed the following as the legal bases for the DAP’s use of savings, 6 namely: (1)
Section 25(5), Article VI of the 1987 Constitution, which granted to the President the authority to
augment an item for his office in the general appropriations law; (2) Section 49 (Authority to Use
Savings for Certain Purposes) and Section 38 (Suspension of Expenditure Appropriations),
Chapter 5, Book VI of Executive Order (EO) No. 292 (Administrative Code of 1987); and (3) the
General Appropriations Acts (GAAs) of 2011, 2012 and 2013, particularly their provisions on the
(a) use of savings; (b) meanings of savings and augmentation; and (c) priority in the use of
savings.
As for the use of unprogrammed funds under the DAP, the DBM cited as legal bases the special
provisions on unprogrammed fund contained in the GAAs of 2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM brought the DAP to
the consciousness of the Nation for the first time, and made this present controversy inevitable.
That the issues against the DAP came at a time when the Nation was still seething in anger over
Congressional pork barrel – "an appropriation of government spending meant for localized
projects and secured solely or primarily to bring money to a representative’s district" 7 – excited
the Nation as heatedly as the pork barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the issuances relating to the DAP
were filed within days of each other, as follows: G.R. No. 209135 (Syjuco), on October 7, 2013;
G.R. No. 209136 (Luna), on October 7, 2013; G.R. No. 209155 (Villegas), 8 on October 16, 2013;
G.R. No. 209164 (PHILCONSA), on October 8, 2013; G.R. No. 209260 (IBP), on October 16,
2013; G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No. 209442 (Belgica), on October
29, 2013; G.R. No. 209517 (COURAGE), on November6, 2013; and G.R. No. 209569 (VACC),
on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the Court’s attention NBC No. 541
(Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments
as of June 30, 2012), alleging that NBC No. 541, which was issued to implement the DAP,
directed the withdrawal of unobligated allotments as of June 30, 2012 of government agencies
and offices with low levels of obligations, both for continuing and current allotments.
In due time, the respondents filed their Consolidated Comment through the Office of the Solicitor
General (OSG).
The Court directed the holding of oral arguments on the significant issues raised and joined.
Issues
Under the Advisory issued on November 14, 2013, the presentations of the parties during the
oral arguments were limited to the following, to wit:
Procedural Issue:
A. Whether or not certiorari, prohibition, and mandamus are proper remedies to assail the
constitutionality and validity of the Disbursement Acceleration Program (DAP), National Budget
Circular (NBC) No. 541, and all other executive issuances allegedly implementing the DAP.
Subsumed in this issue are whether there is a controversy ripe for judicial determination, and the
standing of petitioners.
Substantive Issues:
B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which provides: "No
money shall be paid out of the Treasury except in pursuance of an appropriation made by law."
C. Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly
implementing the DAP violate Sec. 25(5), Art. VI of the 1987 Constitution insofar as:
(a)They treat the unreleased appropriations and unobligated allotments
withdrawn from government agencies as "savings" as the term is used in
 Sec. 25(5), in relation to the provisions of the GAAs of 2011, 2012 and
2013;
(b)They authorize the disbursement of funds for projects or programs not
provided in the GAAs for the Executive Department; and
(c)They "augment" discretionary lump sum appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the system of checks
and balances, and (3) the principle of public accountability enshrined in the 1987 Constitution
considering that it authorizes the release of funds upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a temporary restraining order to
restrain the implementation of the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP.
In its Consolidated Comment, the OSG raised the matter of unprogrammed funds in order to
support its argument regarding the President’s power to spend. During the oral arguments, the
propriety of releasing unprogrammed funds to support projects under the DAP was considerably
discussed. The petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica) dwelled
on unprogrammed funds in their respective memoranda. Hence, an additional issue for the oral
arguments is stated as follows:
F. Whether or not the release of unprogrammed funds under the DAP was in accord with the
GAAs.
During the oral arguments held on November 19, 2013, the Court directed Sec. Abad to submit a
list of savings brought under the DAP that had been sourced from (a) completed programs; (b)
discontinued or abandoned programs; (c) unpaid appropriations for compensation; (d) a certified
copy of the President’s directive dated June 27, 2012 referred to in NBC No. 541; and (e) all
circulars or orders issued in relation to the DAP.9
In compliance, the OSG submitted several documents, as follows:
(1) A certified copy of the Memorandum for the President dated June 25, 2012
(Omnibus Authority to Consolidate Savings/Unutilized Balances and their
Realignment);10
(2) Circulars and orders, which the respondents identified as related to the DAP,
namely:
a. NBC No. 528 dated January 3, 2011 (Guidelines on the Release of Funds
for FY 2011);
b. NBC No. 535 dated December 29, 2011 (Guidelines on the Release of
Funds for FY 2012);
c. NBC No. 541 dated July 18, 2012 (Adoption of Operational Efficiency
Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30,
2012);
d. NBC No. 545 dated January 2, 2013 (Guidelines on the Release of Funds
for FY 2013);
e. DBM Circular Letter No. 2004-2 dated January 26, 2004 (Budgetary
Treatment of Commitments/Obligations of the National Government);
f. COA-DBM Joint Circular No. 2013-1 dated March 15, 2013 (Revised
Guidelines on the Submission of Quarterly Accountability Reports on
Appropriations, Allotments, Obligations and Disbursements);
g. NBC No. 440 dated January 30, 1995 (Adoption of a Simplified Fund
Release System in the Government).
(3) A breakdown of the sources of savings, including savings from discontinued
projects and unpaid appropriations for compensation from 2011 to 2013
On January 28, 2014, the OSG, to comply with the Resolution issued on January 21, 2014
directing the respondents to submit the documents not yet submitted in compliance with the
directives of the Court or its Members, submitted several evidence packets to aid the Court in
understanding the factual bases of the DAP, to wit:
(1) First Evidence Packet11 – containing seven memoranda issued by the DBM
through Sec. Abad, inclusive of annexes, listing in detail the 116 DAP identified
projects approved and duly signed by the President, as follows:
a. Memorandum for the President dated October 12, 2011 (FY 2011
Proposed Disbursement Acceleration Program (Projects and Sources of
Funds);
b. Memorandum for the President dated December 12, 2011 (Omnibus
Authority to Consolidate Savings/Unutilized Balances and its Realignment);
c. Memorandum for the President dated June 25, 2012 (Omnibus Authority
to Consolidate Savings/Unutilized Balances and their Realignment);
d. Memorandum for the President dated September 4, 2012 (Release of
funds for other priority projects and expenditures of the Government);
e. Memorandum for the President dated December 19, 2012 (Proposed
Priority Projects and Expenditures of the Government);
f. Memorandum for the President dated May 20, 2013 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their Realignment to Fund the
Quarterly Disbursement Acceleration Program); and
g. Memorandum for the President dated September 25, 2013 (Funding for
the Task Force Pablo Rehabilitation Plan).
(2) Second Evidence Packet12 – consisting of 15 applications of the DAP, with their
corresponding Special Allotment Release Orders (SAROs) and appropriation covers;
(3) Third Evidence Packet13 – containing a list and descriptions of 12 projects under
the DAP;
(4) Fourth Evidence Packet14 – identifying the DAP-related portions of the Annual
Financial Report (AFR) of the Commission on Audit for 2011 and 2012;
(5) Fifth Evidence Packet15 – containing a letter of Department of Transportation and
Communications(DOTC) Sec. Joseph Abaya addressed to Sec. Abad recommending
the withdrawal of funds from his agency, inclusive of annexes; and
(6) Sixth Evidence Packet16 – a print-out of the Solicitor General’s visual presentation
for the January 28, 2014 oral arguments.
On February 5, 2014,17 the OSG forwarded the Seventh Evidence Packet,18 which listed the
sources of funds brought under the DAP, the uses of such funds per project or activity pursuant
to DAP, and the legal bases thereof.
On February 14, 2014, the OSG submitted another set of documents in further compliance with
the Resolution dated January 28, 2014, viz:
(1) Certified copies of the certifications issued by the Bureau of Treasury to the effect that the
revenue collections exceeded the original revenue targets for the years 2011, 2012 and 2013,
including collections arising from sources not considered in the original revenue targets, which
certifications were required for the release of the unprogrammed funds as provided in Special
Provision No. 1 of Article XLV, Article XVI, and Article XLV of the 2011, 2012 and 2013 GAAs;
and (2) A report on releases of savings of the Executive Department for the use of the
Constitutional Commissions and other branches of the Government, as well as the fund releases
to the Senate and the Commission on Elections (COMELEC).
RULING
I.
Procedural Issue:
a) The petitions under Rule 65 are proper remedies
All the petitions are filed under Rule 65 of the Rules of Court, and include applications for the
issuance of writs of preliminary prohibitory injunction or temporary restraining orders. More
specifically, the nature of the petitions is individually set forth hereunder, to wit:
sue because no allegations were made to the effect that they had suffered any injury as a result
of the adoption of the DAP and issuance of NBC No. 541; that their being taxpayers did not
immediately confer upon the petitioners the legal standing to sue considering that the adoption
and implementation of the DAP and the issuance of NBC No. 541 were not in the exercise of the
taxing or spending power of Congress;20 and that even if the petitioners had suffered injury,
there were plain, speedy and adequate remedies in the ordinary course of law available to them,
like assailing the regularity of the DAP and related issuances before the Commission on Audit
(COA) or in the trial courts.21
The respondents aver that the special civil actions of certiorari and prohibition are not proper
actions for directly assailing the constitutionality and validity of the DAP, NBC No. 541, and the
other executive issuances implementing the DAP.22
In their memorandum, the respondents further contend that there is no authorized proceeding
under the Constitution and the Rules of Court for questioning the validity of any law unless there
is an actual case or controversy the resolution of which requires the determination of the
constitutional question; that the jurisdiction of the Court is largely appellate; that for a court of law
to pass upon the constitutionality of a law or any act of the Government when there is no case or
controversy is for that court to set itself up as a reviewer of the acts of Congress and of the
President in violation of the principle of separation of powers; and that, in the absence of a
pending case or controversy involving the DAP and NBC No. 541, any decision herein could
amount to a mere advisory opinion that no court can validly render.23
The respondents argue that it is the application of the DAP to actual situations that the
petitioners can question either in the trial courts or in the COA; that if the petitioners are
dissatisfied with the ruling either of the trial courts or of the COA, they can appeal the decision of
the trial courts by petition for review on certiorari, or assail the decision or final order of the COA
by special civil action for certiorari under Rule 64 of the Rules of Court. 24

G.R. No. 209135 (Syjuco) Certiorari, Prohibition and Mandamus The respondents’ arguments and submissions on the procedural issue are bereft of merit.

Section 1, Article VIII of the 1987 Constitution expressly provides:

G.R. No. 209136 (Luna)
G.R. No. 209155 (Villegas)
G.R. No. 209164 (PHILCONSA)
Certiorariand Prohibition
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Certiorariand Prohibition
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
Certiorariand Prohibition been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.

G.R. No. 209260 (IBP)
G.R. No. 209287 (Araullo)
Prohibition Thus, the Constitution vests judicial power in the Court and in such lower courts as may be
established by law. In creating a lower court, Congress concomitantly determines the jurisdiction
of that court, and that court, upon its creation, becomes by operation of the Constitution one of
Certiorariand Prohibition the repositories of judicial power.25 However, only the Court is a constitutionally created court,
the rest being created by Congress in its exercise of the legislative power.

G.R. No. 209442 (Belgica)
G.R. No. 209517 (COURAGE)
G.R. No. 209569 (VACC)
Certiorari The Constitution states that judicial power includes the duty of the courts of justice not only "to
settle actual controversies involving rights which are legally demandable and enforceable" but
also "to determine whether or not there has been a grave abuse of discretion amounting to lack
Certiorari and Prohibition or excess of jurisdiction on the part of any branch or instrumentality of the Government." It has
thereby expanded the concept of judicial power, which up to then was confined to its traditional
ambit of settling actual controversies involving rights that were legally demandable and
Certiorari and Prohibition enforceable.

The background and rationale of the expansion of judicial power under the 1987 Constitution
The respondents submit that there is no actual controversy that is ripe for adjudication in the were laid out during the deliberations of the 1986 Constitutional Commission by Commissioner
absence of adverse claims between the parties;19 that the petitioners lacked legal standing to
Roberto R. Concepcion (a former Chief Justice of the Philippines) in his sponsorship of the
proposed provisions on the Judiciary, where he said:–
The Supreme Court, like all other courts, has one main function: to settle actual controversies
involving conflicts of rights which are demandable and enforceable. There are rights which are
guaranteed by law but cannot be enforced by a judicial party. In a decided case, a husband
complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can
tell your wife what her duties as such are and that she is bound to comply with them, but we
cannot force her physically to discharge her main marital duty to her husband. There are some
rights guaranteed by law, but they are so personal that to enforce them by actual compulsion
would be highly derogatory to human dignity." This is why the first part of the second paragraph
of Section 1 provides that: Judicial power includes the duty of courts to settle actual
controversies involving rights which are legally demandable or enforceable…
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also, another important function.
The powers of government are generally considered divided into three branches: the Legislative,
the Executive and the Judiciary. Each one is supreme within its own sphere and independent of
the others. Because of that supremacy power to determine whether a given law is valid or not is
vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a
duty to pass judgmenton matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute
a political question. (Bold emphasis supplied)26
Upon interpellation by Commissioner Nolledo, Commissioner Concepcion clarified the scope of
judicial power in the following manner:–
MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial power includes the duty of courts of justice
to settle actual controversies…" The term "actual controversies" according to the Commissioner
should refer to questions which are political in nature and, therefore, the courts should not refuse
to decide those political questions. But do I understand it right that this is restrictive or only an
example? I know there are cases which are not actual yet the court can assume jurisdiction. An
example is the petition for declaratory relief.
May I ask the Commissioner’s opinion about that?
MR. CONCEPCION. The Supreme Court has no jurisdiction to grant declaratory judgments.
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in
the Supreme Court alone but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions
with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a
question as to whether the government had authority or had abused its authority to the extent of
lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court
has the duty to decide.27
Our previous Constitutions equally recognized the extent of the power of judicial review and the
great responsibility of the Judiciary in maintaining the allocation of powers among the three great
branches of Government. Speaking for the Court in Angara v. Electoral Commission, 28 Justice
Jose P. Laurel intoned:
x x x In times of social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can be called upon to determine the
proper allocation of powers between the several department and among the integral or
constituent units thereof.
xxxx
The Constitution is a definition of the powers of government. Who is to determine the nature,
scope and extent of such powers? The Constitution itself has provided for the instrumentality of
the judiciary as the rational way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other department; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is involved in what is termed
"judicial supremacy" which properly is the power of judicial review under the Constitution. x x x29
What are the remedies by which the grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government may be determined
under the Constitution?
The present Rules of Court uses two special civil actions for determining and correcting grave
abuse of discretion amounting to lack or excess of jurisdiction. These are the special civil actions
for certiorari and prohibition, and both are governed by Rule 65. A similar remedy of certiorari
exists under Rule 64, but the remedy is expressly applicable only to the judgments and final
orders or resolutions of the Commission on Elections and the Commission on Audit.
The ordinary nature and function of the writ of certiorari in our present system are aptly
explained in Delos Santos v. Metropolitan Bank and Trust Company:30
In the common law, from which the remedy of certiorari evolved, the writ of certiorari was issued
out of Chancery, or the King’s Bench, commanding agents or officers of the inferior courts to
return the record of a cause pending before them, so as to give the party more sure and speedy
justice, for the writ would enable the superior court to determine from an inspection of the record
whether the inferior court’s judgment was rendered without authority. The errors were of such a
nature that, if allowed to stand, they would result in a substantial injury to the petitioner to whom
no other remedy was available. If the inferior court acted without authority, the record was then
revised and corrected in matters of law. The writ of certiorari was limited to cases in which the
inferior court was said to be exceeding its jurisdiction or was not proceeding according to
essential requirements of law and would lie only to review judicial or quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system remains much the same as it has
been in the common law. In this jurisdiction, however, the exercise of the power to issue the writ
of certiorari is largely regulated by laying down the instances or situations in the Rules of Court
in which a superior court may issue the writ of certiorari to an inferior court or officer. Section 1,
Rule 65 of the Rules of Court compellingly provides the requirements for that purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction of errors of jurisdiction, which includes the
commission of grave abuse of discretion amounting to lack of jurisdiction. In this regard, mere
abuse of discretion is not enough to warrant the issuance of the writ. The abuse of discretion
must be grave, which means either that the judicial or quasi-judicial power was exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, or that the respondent
judge, tribunal or board evaded a positive duty, or virtually refused to perform the duty enjoined
or to act in contemplation of law, such as when such judge, tribunal or board exercising judicial
or quasi-judicial powers acted in a capricious or whimsical manner as to be equivalent to lack of
jurisdiction.31
Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to be
distinguished from prohibition by the fact that it is a corrective remedy used for the re-
examination of some action of an inferior tribunal, and is directed to the cause or proceeding in
the lower court and not to the court itself, while prohibition is a preventative remedy issuing to
restrain future action, and is directed to the court itself.32 The Court expounded on the nature
and function of the writ of prohibition in Holy Spirit Homeowners Association, Inc. v. Defensor: 33
A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise of
a quasi-legislative function. Prohibition is an extraordinary writ directed against any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, ordering said entity or person to desist from further proceedings when said
proceedings are without or in excess of said entity’s or person’s jurisdiction, or are accompanied
with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law. Prohibition lies against judicial or ministerial functions, but
not against legislative or quasi-legislative functions. Generally, the purpose of a writ of
prohibition is to keep a lower court within the limits of its jurisdiction in order to maintain the
administration of justice in orderly channels. Prohibition is the proper remedy to afford relief
against usurpation of jurisdiction or power by an inferior court, or when, in the exercise of
jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the
bounds prescribed to it by the law, or where there is no adequate remedy available in the
ordinary course of law by which such relief can be obtained. Where the principal relief sought is
to invalidate an IRR, petitioners’ remedy is an ordinary action for its nullification, an action which
properly falls under the jurisdiction of the Regional Trial Court. In any case, petitioners’ allegation
that "respondents are performing or threatening to perform functions without or in excess of their
jurisdiction" may appropriately be enjoined by the trial court through a writ of injunction or a
temporary restraining order.
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily
broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct
errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising
judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of
grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or
ministerial functions. This application is expressly authorized by the text of the second paragraph
of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional
issues and to review and/or prohibit or nullify the acts of legislative and executive officials. 34
Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of
the Government, the Court is not at all precluded from making the inquiry provided the challenge
was properly brought by interested or affected parties. The Court has been thereby entrusted
expressly or by necessary implication with both the duty and the obligation of determining, in
appropriate cases, the validity of any assailed legislative or executive action. This entrustment is
consistent with the republican system of checks and balances. 35
Following our recent dispositions concerning the congressional pork barrel, the Court has
become more alert to discharge its constitutional duty. We will not now refrain from exercising
our expanded judicial power in order to review and determine, with authority, the limitations on
the Chief Executive’s spending power.
b) Requisites for the exercise of the
power of judicial review were
complied with
The requisites for the exercise of the power of judicial review are the following, namely: (1) there
must bean actual case or justiciable controversy before the Court; (2) the question before the
Court must be ripe for adjudication; (3) the person challenging the act must be a proper party;
and (4) the issue of constitutionality must be raised at the earliest opportunity and must be the
very litis mota of the case.36
The first requisite demands that there be an actual case calling for the exercise of judicial power
by the Court.37 An actual case or controversy, in the words of Belgica v. Executive Secretary
Ochoa:38
x x x is one which involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute. In other words, "[t]here must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence." Related to the requirement of an actual
case or controversy is the requirement of "ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the individual challenging it. It is a
prerequisite that something had then been accomplished or performed by either branch before a
court may come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action." "Withal, courts will decline to pass
upon constitutional issues through advisory opinions, bereft as they are of authority to resolve
hypothetical or moot questions."
An actual and justiciable controversy exists in these consolidated cases. The incompatibility of
the perspectives of the parties on the constitutionality of the DAP and its relevant issuances
satisfy the requirement for a conflict between legal rights. The issues being raised herein meet
the requisite ripeness considering that the challenged executive acts were already being
implemented by the DBM, and there are averments by the petitioners that such implementation
was repugnant to the letter and spirit of the Constitution. Moreover, the implementation of the
DAP entailed the allocation and expenditure of huge sums of public funds. The fact that public
funds have been allocated, disbursed or utilized by reason or on account of such challenged
executive acts gave rise, therefore, to an actual controversy that is ripe for adjudication by the
Court.
It is true that Sec. Abad manifested during the January 28, 2014 oral arguments that the DAP as
a program had been meanwhile discontinued because it had fully served its purpose, saying: "In
conclusion, Your Honors, may I inform the Court that because the DAP has already fully served
its purpose, the Administration’s economic managers have recommended its termination to the
President. x x x."39
The Solicitor General then quickly confirmed the termination of the DAP as a program, and
urged that its termination had already mooted the challenges to the DAP’s constitutionality, viz:
DAP as a program, no longer exists, thereby mooting these present cases brought to challenge
its constitutionality. Any constitutional challenge should no longer be at the level of the program,
which is now extinct, but at the level of its prior applications or the specific disbursements under
the now defunct policy. We challenge the petitioners to pick and choose which among the 116
DAP projects they wish to nullify, the full details we will have provided by February 5. We urge
this Court to be cautious in limiting the constitutional authority of the President and the
Legislature to respond to the dynamic needs of the country and the evolving demands of
governance, lest we end up straight jacketing our elected representatives in ways not consistent
with our constitutional structure and democratic principles.40
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value. 41
The Court cannot agree that the termination of the DAP as a program was a supervening event
that effectively mooted these consolidated cases. Verily, the Court had in the past exercised its
power of judicial review despite the cases being rendered moot and academic by supervening
events, like: (1) when there was a grave violation of the Constitution; (2) when the case involved
a situation of exceptional character and was of paramount public interest; (3) when the
constitutional issue raised required the formulation of controlling principles to guide the Bench,
the Bar and the public; and (4) when the case was capable of repetition yet evading review. 42
Assuming that the petitioners’ several submissions against the DAP were ultimately sustained by
the Court here, these cases would definitely come under all the exceptions. Hence, the Court
should not abstain from exercising its power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review, refers to "a right of appearance
in a court of justice on a given question."43 The concept of legal standing, or locus standi, was
particularly discussed in De Castro v. Judicial and Bar Council, 44 where the Court said:
In public or constitutional litigations, the Court is often burdened with the determination of the
locus standi of the petitioners due to the ever-present need to regulate the invocation of the
intervention of the Court to correct any official action or policy in order to avoid obstructing the
efficient functioning of public officials and offices involved in public service. It is required,
therefore, that the petitioner must have a personal stake in the outcome of the controversy, for,
as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions." Accordingly, it has been held that the interest of a person assailing the
constitutionality of a statute must be direct and personal. He must be able to show, not only that
the law or any government act is invalid, but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for
determining whether a petitioner in a public action had locus standi. There, the Court held that
the person who would assail the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result." Vera was
followed in Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De
la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual v. Secretary of Public
Works.
Yet, the Court has also held that the requirement of locus standi, being a mere procedural
technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in
Araneta v. Dinglasan, the Court liberalized the approach when the cases had "transcendental
importance." Some notable controversies whose petitioners did not pass the direct injury test
were allowed to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the
issues raised by the petition due to their "far reaching implications," even if the petitioner had no
personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been
adopted in several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws, regulations, and
rulings.
However, the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner represents
the public in general. Although such petitioner may not be as adversely affected by the action
complained against as are others, it is enough that he sufficiently demonstrates in his petition
that he is entitled to protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus
standi. That is not surprising, for even if the issue may appear to concern only the public in
general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David
v. Macapagal-Arroyo, the Court aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the
plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme Court in People ex rel
Case v. Collins: "In matter of mere public right, however…the people are the real parties…It is at
least the right, if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied." With respect to
taxpayer’s suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his injury cannot be denied."45
The Court has cogently observed in Agan, Jr. v. Philippine International Air Terminals Co.,
Inc.46 that "[s]tanding is a peculiar concept in constitutional law because in some cases, suits are
not brought by parties who have been personally injured by the operation of a law or any other
government act but by concerned citizens, taxpayers or voters who actually sue in the public
interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have invoked their
capacities as taxpayers who, by averring that the issuance and implementation of the DAP and
its relevant issuances involved the illegal disbursements of public funds, have an interest in
preventing the further dissipation of public funds. The petitioners in G.R. No. 209287 (Araullo)
and G.R. No. 209442 (Belgica) also assert their right as citizens to sue for the enforcement and
observance of the constitutional limitations on the political branches of the Government. 47
On its part, PHILCONSA simply reminds that the Court has long recognized its legal standing to
bring cases upon constitutional issues.48 Luna, the petitioner in G.R. No. 209136, cites his
additional capacity as a lawyer. The IBP, the petitioner in G.R. No. 209260, stands by "its
avowed duty to work for the rule of law and of paramount importance of the question in this
action, not to mention its civic duty as the official association of all lawyers in this country."49
Under their respective circumstances, each of the petitioners has established sufficient interest
in the outcome of the controversy as to confer locus standi on each of them.
In addition, considering that the issues center on the extent of the power of the Chief Executive
to disburse and allocate public funds, whether appropriated by Congress or not, these cases
pose issues that are of transcendental importance to the entire Nation, the petitioners included.
As such, the determination of such important issues call for the Court’s exercise of its broad and
wise discretion "to waive the requirement and so remove the impediment to its addressing and
resolving the serious constitutional questions raised."50
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the Court in properly
appreciating and justly resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that had derived from the
Latin word bulga (which means bag or purse).51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act) defined "budget" as the
financial program of the National Government for a designated fiscal year, consisting of the
statements of estimated receipts and expenditures for the fiscal year for which it was intended to
be effective based on the results of operations during the preceding fiscal years. The term was
given a different meaning under Republic Act No. 992 (Revised Budget Act) by describing the
budget as the delineation of the services and products, or benefits that would accrue to the
public together with the estimated unit cost of each type of service, product or benefit. 52 For a
forthright definition, budget should simply be identified as the financial plan of the
Government,53 or "the master plan of government."54
The concept of budgeting has not been the product of recent economies. In reality, financing
public goals and activities was an idea that existed from the creation of the State. 55 To protect
the people, the territory and sovereignty of the State, its government must perform vital functions
that required public expenditures. At the beginning, enormous public expenditures were spent
for war activities, preservation of peace and order, security, administration of justice, religion,
and supply of limited goods and services.56 In order to finance those expenditures, the State
raised revenues through taxes and impositions.57 Thus, budgeting became necessary to allocate
public revenues for specific government functions.58 The State’s budgeting mechanism
eventually developed through the years with the growing functions of its government and
changes in its market economy.
The Philippine Budget System has been greatly influenced by western public financial
institutions. This is because of the country’s past as a colony successively of Spain and the
United States for a long period of time. Many aspects of the country’s public fiscal
administration, including its Budget System, have been naturally patterned after the practices
and experiences of the western public financial institutions. At any rate, the Philippine Budget
System is presently guided by two principal objectives that are vital to the development of a
progressive democratic government, namely: (1) to carry on all government activities under a
comprehensive fiscal plan developed, authorized and executed in accordance with the
Constitution, prevailing statutes and the principles of sound public management; and (2) to
provide for the periodic review and disclosure of the budgetary status of the Government in such
detail so that persons entrusted by law with the responsibility as well as the enlightened citizenry
can determine the adequacy of the budget actions taken, authorized or proposed, as well as the
true financial position of the Government.59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early years of the American Regime up
to the passage of the Jones Law in 1916. A Budget Office was created within the Department of
Finance by the Jones Law to discharge the budgeting function, and was given the responsibility
to assist in the preparation of an executive budget for submission to the Philippine Legislature.60
As early as under the 1935 Constitution, a budget policy and a budget procedure were
established, and subsequently strengthened through the enactment of laws and executive
acts.61 EO No. 25, issued by President Manuel L. Quezon on April 25, 1936, created the Budget
Commission to serve as the agency that carried out the President’s responsibility of preparing
the budget.62 CA No. 246, the first budget law, went into effect on January 1, 1938 and
established the Philippine budget process. The law also provided a line-item budget as the
framework of the Government’s budgeting system, 63 with emphasis on the observance of a
"balanced budget" to tie up proposed expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954 of Republic Act
(RA) No. 992,whereby Congress introduced performance-budgeting to give importance to
functions, projects and activities in terms of expected results. 64 RA No. 992 also enhanced the
role of the Budget Commission as the fiscal arm of the Government. 65
The 1973 Constitution and various presidential decrees directed a series of budgetary reforms
that culminated in the enactment of PD No. 1177 that President Marcos issued on July30, 1977,
and of PD No. 1405, issued on June 11, 1978. The latter decree converted the Budget
Commission into the Ministry of Budget, and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and Management (OBM) under
EO No. 711. The OBM became the DBM pursuant to EO No. 292 effective on November 24,
1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1) Budget Preparation; (2)
Budget Legislation; (3) Budget Execution; and (4) Accountability. Each phase is distinctly
separate from the others but they overlap in the implementation of the budget during the budget
year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a Budget Call by the
DBM. The Budget Call contains budget parameters earlier set by the Development Budget
Coordination Committee (DBCC) as well as policy guidelines and procedures to aid government
agencies in the preparation and submission of their budget proposals. The Budget Call is of two
kinds, namely: (1) a National Budget Call, which is addressed to all agencies, including state
universities and colleges; and (2) a Corporate Budget Call, which is addressed to all
government-owned and -controlled corporations (GOCCs) and government financial institutions
(GFIs).
Following the issuance of the Budget Call, the various departments and agencies submit their
respective Agency Budget Proposals to the DBM. To boost citizen participation, the current
administration has tasked the various departments and agencies to partner with civil society
organizations and other citizen-stakeholders in the preparation of the Agency Budget Proposals,
which proposals are then presented before a technical panel of the DBM in scheduled budget
hearings wherein the various departments and agencies are given the opportunity to defend
their budget proposals. DBM bureaus thereafter review the Agency Budget Proposals and come
up with recommendations for the Executive Review Board, comprised by the DBM Secretary
and the DBM’s senior officials. The discussions of the Executive Review Board cover the
prioritization of programs and their corresponding support vis-à-vis the priority agenda of the
National Government, and their implementation.
The DBM next consolidates the recommended agency budgets into the National Expenditure
Program (NEP)and a Budget of Expenditures and Sources of Financing (BESF). The NEP
provides the details of spending for each department and agency by program, activity or project
(PAP), and is submitted in the form of a proposed GAA. The Details of Selected Programs and
Projects is the more detailed disaggregation of key PAPs in the NEP, especially those in line
with the National Government’s development plan. The Staffing Summary provides the staffing
complement of each department and agency, including the number of positions and amounts
allocated.
other properties recorded as fixed assets); 81 (3) grants(i.e., voluntary contributions and aids
given to the Government for its operation on specific purposes in the form of money and/or
materials, and do not require any monetary commitment on the part of the recipient); 82 (4)
extraordinary income(i.e., repayment of loans and advances made by government corporations
and local governments and the receipts and shares in income of the Banko Sentral ng Pilipinas,
and other receipts);83 and (5) public borrowings(i.e., proceeds of repayable obligations generally
with interest from domestic and foreign creditors of the Government in general, including the
National Government and its political subdivisions).84

The NEP and BESF are thereafter presented by the DBM and the DBCC to the President and More specifically, public revenues are classified as follows: 85
the Cabinet for further refinements or reprioritization. Once the NEP and the BESF are approved
by the President and the Cabinet, the DBM prepares the budget documents for submission to
General Income Specific Income
Congress. The budget documents consist of: (1) the President’s Budget Message, through
which the President explains the policy framework and budget priorities; (2) the BESF,
mandated by Section 22, Article VII of the Constitution,68 which contains the macroeconomic 1. Subsidy Income from National 1. Income Taxes
assumptions, public sector context, breakdown of the expenditures and funding sources for the Government
fiscal year and the two previous years; and (3) the NEP.
2. Property Taxes
Public or government expenditures are generally classified into two categories, specifically: (1) 2. Subsidy from Central Office
capital expenditures or outlays; and (2) current operating expenditures. Capital expenditures are 3. Taxes on Goods and Services
the expenses whose usefulness lasts for more than one year, and which add to the assets of the 3. Subsidy from Regional
Government, including investments in the capital of government-owned or controlled Office/Staff Bureaus
corporations and their subsidiaries.69 Current operating expenditures are the purchases of goods 4. Taxes on International Trade and
and services in current consumption the benefit of which does not extend beyond the fiscal Transactions
year.70 The two components of current expenditures are those for personal services (PS), and 4. Income from Government
those for maintenance and other operating expenses(MOOE). Services
5. Other Taxes 6.Fines and Penalties-Tax Revenue
Public expenditures are also broadly grouped according to their functions into: (1) economic 5. Income from Government
development expenditures (i.e., expenditures on agriculture and natural resources, Business Operations 7. Other Specific Income
transportation and communications, commerce and industry, and other economic development
efforts);71 (2) social services or social development expenditures (i.e., government outlay on
education, public health and medicare, labor and welfare and others); 72 (3) general government6. Sales Revenue
or general public services expenditures (i.e., expenditures for the general government,
legislative services, the administration of justice, and for pensions and gratuities);73 (4) national7. Rent Income
defense expenditures (i.e., sub-divided into national security expenditures and expenditures for
the maintenance of peace and order);74 and (5) public debt.75
8. Insurance Income
Public expenditures may further be classified according to the nature of funds, i.e., general fund,
special fund or bond fund.76
9. Dividend Income
On the other hand, public revenues complement public expenditures and cover all income or
receipts of the government treasury used to support government expenditures. 77 10. Interest Income

Classical economist Adam Smith categorized public revenues based on two principal sources,
11. Sale of Confiscated Goods and
stating: "The revenue which must defray…the necessary expenses of government may be
Properties
drawn either, first from some fund which peculiarly belongs to the sovereign or commonwealth,
and which is independent of the revenue of the people, or, secondly, from the revenue of the
people."78 Adam Smith’s classification relied on the two aspects of the nature of the State: first, 12. Foreign Exchange (FOREX)
the State as a juristic person with an artificial personality, and, second, the State as a sovereign Gains
or entity possessing supreme power. Under the first aspect, the State could hold property and
engage in trade, thereby deriving what is called its quasi private income or revenues, and which
"peculiarly belonged to the sovereign." Under the second aspect, the State could collect by 13. Miscellaneous Operating and
imposing charges on the revenues of its subjects in the form of taxes. 79 Service Income

In the Philippines, public revenues are generally derived from the following sources, to wit: (1) 14. Fines and Penalties-Government
tax revenues(i.e., compulsory contributions to finance government activities); 80 (2) capital Services and Business Operations
revenues(i.e., proceeds from sales of fixed capital assets or scrap thereof and public domain,
and gains on such sales like sale of public lands, buildings and other structures, equipment, and
5. Income from Grants and
Donations
c.2. Budget Legislation86
The Budget Legislation Phase covers the period commencing from the time Congress receives
the President’s Budget, which is inclusive of the NEPand the BESF, up to the President’s
approval of the GAA. This phase is also known as the Budget Authorization Phase, and involves
the significant participation of the Legislative through its deliberations.
Initially, the President’s Budget is assigned to the House of Representatives’ Appropriations
Committee on First Reading. The Appropriations Committee and its various Sub-Committees
schedule and conduct budget hearings to examine the PAPs of the departments and agencies.
Thereafter, the House of Representatives drafts the General Appropriations Bill (GAB). 87
The GABis sponsored, presented and defended by the House of Representatives’
Appropriations Committee and Sub-Committees in plenary session. As with other laws, the GAB
is approved on Third Reading before the House of Representatives’ version is transmitted to the
Senate.88
After transmission, the Senate conducts its own committee hearings on the GAB. To expedite
proceedings, the Senate may conduct its committee hearings simultaneously with the House of
Representatives’ deliberations. The Senate’s Finance Committee and its Sub-Committees may
submit the proposed amendments to the GAB to the plenary of the Senate only after the House
of Representatives has formally transmitted its version to the Senate. The Senate version of the
GAB is likewise approved on Third Reading.89
The House of Representatives and the Senate then constitute a panel each to sit in the
Bicameral Conference Committee for the purpose of discussing and harmonizing the conflicting
provisions of their versions of the GAB. The "harmonized" version of the GAB is next presented
to the President for approval.90 The President reviews the GAB, and prepares the Veto Message
where budget items are subjected to direct veto,91 or are identified for conditional
implementation.
If, by the end of any fiscal year, the Congress shall have failed to pass the GAB for the ensuing
fiscal year, the GAA for the preceding fiscal year shall be deemed re-enacted and shall remain in
force and effect until the GAB is passed by the Congress.92
c.3. Budget Execution93
With the GAA now in full force and effect, the next step is the implementation of the budget. The
Budget Execution Phase is primarily the function of the DBM, which is tasked to perform the
following procedures, namely: (1) to issue the programs and guidelines for the release of funds;
(2) to prepare an Allotment and Cash Release Program; (3) to release allotments; and (4) to
issue disbursement authorities.
The implementation of the GAA is directed by the guidelines issued by the DBM. Prior to this,
the various departments and agencies are required to submit Budget Execution
Documents(BED) to outline their plans and performance targets by laying down the physical and
financial plan, the monthly cash program, the estimate of monthly income, and the list of
obligations that are not yet due and demandable.
Thereafter, the DBM prepares an Allotment Release Program (ARP)and a Cash Release
Program (CRP).The ARP sets a limit for allotments issued in general and to a specific agency.
The CRP fixes the monthly, quarterly and annual disbursement levels.
Allotments, which authorize an agency to enter into obligations, are issued by the DBM.
Allotments are lesser in scope than appropriations, in that the latter embrace the general
legislative authority to spend. Allotments may be released in two forms – through a
comprehensive Agency Budget Matrix (ABM),94 or, individually, by SARO.95
Armed with either the ABM or the SARO, agencies become authorized to incur obligations 96 on
behalf of the Government in order to implement their PAPs. Obligations may be incurred in
various ways, like hiring of personnel, entering into contracts for the supply of goods and
services, and using utilities.
In order to settle the obligations incurred by the agencies, the DBM issues a disbursement
authority so that cash may be allocated in payment of the obligations. A cash or disbursement
authority that is periodically issued is referred to as a Notice of Cash Allocation (NCA), 97 which
issuance is based upon an agency’s submission of its Monthly Cash Program and other required
documents. The NCA specifies the maximum amount of cash that can be withdrawn from a
government servicing bank for the period indicated. Apart from the NCA, the DBM may issue a
Non-Cash Availment Authority(NCAA) to authorize non-cash disbursements, or a Cash
Disbursement Ceiling(CDC) for departments with overseas operations to allow the use of
income collected by their foreign posts for their operating requirements.
Actual disbursement or spending of government funds terminates the Budget Execution Phase
and is usually accomplished through the Modified Disbursement Scheme under which
disbursements chargeable against the National Treasury are coursed through the government
servicing banks.
c.4. Accountability98
Accountability is a significant phase of the budget cycle because it ensures that the government
funds have been effectively and efficiently utilized to achieve the State’s socio-economic goals. It
also allows the DBM to assess the performance of agencies during the fiscal year for the
purpose of implementing reforms and establishing new policies.
An agency’s accountability may be examined and evaluated through (1) performance targets
and outcomes; (2) budget accountability reports; (3) review of agency performance; and (4) audit
conducted by the Commission on Audit(COA).
2.
Nature of the DAP as a fiscal plan
a. DAP was a program designed to
promote economic growth
Policy is always a part of every budget and fiscal decision of any Administration. 99 The national
budget the Executive prepares and presents to Congress represents the Administration’s
"blueprint for public policy" and reflects the Government’s goals and strategies. 100 As such, the
national budget becomes a tangible representation of the programs of the Government in
monetary terms, specifying therein the PAPs and services for which specific amounts of public
funds are proposed and allocated.101 Embodied in every national budget is government
spending.102
When he assumed office in the middle of 2010, President Aquino made efficiency and
transparency in government spending a significant focus of his Administration. Yet, although
such focus resulted in an improved fiscal deficit of 0.5% in the gross domestic product (GDP) A. Fund Sources for the Acceleration Program
from January to July of 2011, it also unfortunately decelerated government project
implementation and payment schedules.103 The World Bank observed that the Philippines’
economic growth could be reduced, and potential growth could be weakened should the Amount
Action
Government continue with its underspending and fail to address the large deficiencies in Fund Sources (In million Description
Requested
infrastructure.104 The economic situation prevailing in the middle of 2011 thus paved the way for Php)
the development and implementation of the DAP as a stimulus package intended to fast-track
public spending and to push economic growth by investing on high-impact budgetary PAPs to be
funded from the "savings" generated during the year as well as from unprogrammed funds. 105FY In 2011 30,000 Unreleased Personnel Declare as
that respect, the DAP was the product of "plain executive policy-making" to stimulate the Unreleased Services (PS) savings and
economy by way of accelerated spending.106The Administration would thereby accelerate Personal appropriations which approve/
government spending by: (1) streamlining the implementation process through the clustering of Services (PS) will lapse at the end of authorize its use
infrastructure projects of the Department of Public Works and Highways (DPWH) and the Appropriations FY 2011 but may be for the 2011
107
Department of Education (DepEd),and (2) front loading PPP-related projects due for pooled as savings and Disbursement
implementation in the following year.108 realigned for priority Acceleration
programs that require Program
Did the stimulus package work? immediate funding

The March 2012 report of the World Bank,109 released after the initial implementation of the
DAP, revealed that the DAP was partially successful. The disbursements under the DAP FY 2011 482 Unreleased
contributed 1.3 percentage points to GDP growth by the fourth quarter of 2011. 110 The continued
Unreleased appropriations (slow
implementation of the DAP strengthened growth by 11.8% year on year while infrastructure Appropriations moving projects and
spending rebounded from a 29% contraction to a 34% growth as of September 2013. 111 programs for
discontinuance)
The DAP thus proved to be a demonstration that expenditure was a policy instrument that the
Government could use to direct the economies towards growth and development. 112 The
Government, by spending on public infrastructure, would signify its commitment of ensuring
profitability for prospective investors.113 The PAPs funded under the DAP were chosen for thisFY 2010 12,336 Supported by the GFI Approve and
Unprogrammed
reason based on their: (1) multiplier impact on the economy and infrastructure development; (2) Dividends authorize its use
beneficial effect on the poor; and (3) translation into disbursements. 114 Fund for the 2011
Disbursement
b. History of the implementation of Acceleration
the DAP, and sources of funds Program
under the DAP

How the Administration’s economic managers conceptualized and developed the DAP, and FY 2010 21,544 Unreleased With prior
finally presented it to the President remains unknown because the relevant documents appearCarryover
to appropriations (slow approval from
be scarce. Appropriation moving projects and the President in
programs for November 2010
The earliest available document relating to the genesis of the DAP was the memorandum of discontinuance) and to declare as
October 12,2011 from Sec. Abad seeking the approval of the President to implement the savings from Zero-based Budgeting savings and with
proposed DAP. The memorandum, which contained a list of the funding sources for ₱72.11 Initiative authority to use
billion and of the proposed priority projects to be funded,115 reads: for priority
projects
MEMORANDUM FOR THE PRESIDENT

xxxx FY 2011 Budget 7,748 FY 2011 Agency For information

items for Budget items that can
realignment
SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM (PROJECTS be realigned within the
AND SOURCES OF FUNDS) agency to fund new fast
disbursing projects
DATE: OCTOBER 12, 2011 DPWH-3.981 Billion
DA – 2.497 Billion
Mr. President, this is to formally confirm your approval of the Disbursement Acceleration DOT – 1.000 Billion
Program totaling ₱72.11 billion. We are already working with all the agencies concerned for the DepEd – 270 Million
immediate execution of the projects therein.
TOTAL 72.110 PhilHealth, ECC), Franking Privilege

B. Projects in the Disbursement Acceleration Program 9. BSP: First equity infusion out of Php 40B 10,000
capitalization under the BSP Law
(Descriptions of projects attached as Annex A)

10. PCMC: Capital and Equipment Renovation 280

GOCCs and GFIs

11. LCOP: 105

Agency/Project Allotment a. Pediatric Pulmonary Program
(SARO and NCA Release) (in Million Php) b. Bio-regenerative Technology Program
(Stem-Cell Research – subject to legal 35
review and presentation)
1. LRTA: Rehabilitation of LRT 1 and 2 1,868
70
2. NHA: 11,050
12. TIDCORP: NG Equity infusion 570
a. Resettlement of North Triangle residents to
Camarin A7 450
b. Housing for BFP/BJMP
TOTAL 26,945
c. On-site development for families living 500
along dangerous 10,000
d. Relocation sites for informal settlers
along Iloilo River and its tributaries 100

NGAs/LGUs
3. PHIL. HEART CENTER: Upgrading of 357
ageing physical plant and medical equipment
Agency/Project Allotment
(SARO) Cash
4. CREDIT INFO CORP: Establishment of 75 (In Million Requirement
centralized credit information system Php) (NCA)

5. PIDS: purchase of land to relocate the PIDS 100 13. DOF-BIR: NPSTAR
office and building construction centralization of data
processing and others (To be
synchronized with GFMIS
6. HGC: Equity infusion for credit insurance 400 activities) 758 758
and mortgage guaranty operations of HGC
14. COA: IT infrastructure
7. PHIC: Obligations incurred (premium 1,496 program and hiring of
subsidy for indigent families) in January-June additional litigational experts 144 144
2010, booked for payment in Jul[y] – Dec
2010. The delay in payment is due to the
delay in the certification of the LGU 15. DND-PAF: On Base Housing
counterpart. Without it, the NG is obliged to Facilities and Communication
pay the full amount. Equipment 30 30

8. Philpost: Purchase of foreclosed property. 644 16. DA: 2,959 2,223

Payment of Mandatory Obligations, (GSIS, a. Irrigation, FMRs and
Integrated Community Based Multi-Species
Hatchery and Aquasilvi 24. OEO-FDCP: Establishment of
Farming 1,629 1,629 the National Film Archive and
b. Mindanao Rural local cinematheques, and other
Development Project 919 183 local activities 20 20

c. NIA Agno River Integrated 25. DPWH: Various infrastructure

Irrigation Project 411 411 projects 5,500 5,500

17. DAR: 1,293 1,293 26. DepEd/ERDT/DOST: Thin

a. Agrarian Reform Client Cloud Computing
Communities Project 2 1,293 132 Project 270 270
b. Landowners Compensation 5,432

27. DOH: Hiring of nurses and

18. DBM: Conduct of National midwives 294 294
Survey of
Farmers/Fisherfolks/Ips 625 625
28. TESDA: Training Program in
partnership with BPO industry
19. DOJ: Operating requirements and other sectors 1,100 1,100
of 50 investigation agents and
15 state attorneys 11 11
29. DILG: Performance Challenge
Fund (People Empowered
20. DOT: Preservation of the Cine Community Driven
Corregidor Complex 25 25 Development with DSWD and
NAPC) 250 50

21. OPAPP: Activities for Peace

Process (PAMANA- Project 30. ARMM: Comprehensive Peace
details: budget breakdown, and Development Intervention 8,592 8,592
implementation plan, and
conditions on fund release
attached as Annex B) 1,819 1,819 31. DOTC-MRT: Purchase of
additional MRT cars 4,500 -

22. DOST 425 425

a. Establishment of National 32. LGU Support Fund 6,500 6,500
Meterological and Climate
Center 275 275
b. Enhancement of Doppler 33. Various Other Local Projects 6,500 6,500
Radar Network for National
Weather Watch, Accurate
Forecasting and Flood Early 34. Development Assistance to the
Warning 190 190 Province of Quezon 750 750

23. DOF-BOC: To settle the TOTAL 45,165 44,000

principal obligations with
PDIC consistent with the
agreement with the CISS and C. Summary
SGS 2,800 2,800
Fund Sources
Identified for Allotments Cash
 1.1 to provide for new activities which have not been anticipated
Approval for Release Requirements for during preparation of the budget;
(In Million Release in FY
Php) 2011
1.2 to augment additional requirements of on-going priority
projects; and
Total 72,110 72,110 70,895
1.3 to provide for deficiencies under the Special Purpose Funds,
e.g., PDAF, Calamity Fund, Contingent Fund
GOCCs 26,895 26,895
1.4 to cover for the modifications of the original allotment class
allocation as a result of on-going priority projects and
implementation of new activities
NGAs/LGUs 45,165 44,000
2.0 x x x x
For His Excellency’s Consideration
2.1 x x x
(Sgd.) FLORENCIO B. ABAD
2.2 x x x
[/] APPROVED
ON THE UTILIZATION OF POOLED SAVINGS
[ ] DISAPPROVED
3.0 It may be recalled that the President approved our request for omnibus
(Sgd.) H.E. BENIGNO S. AQUINO, III authority to pool savings/unutilized balances in FY 2010 last November 25,
2010.
OCT 12, 2011
4.0 It is understood that in the utilization of the pooled savings, the DBM
The memorandum of October 12, 2011 was followed by another memorandum for the President shall secure the corresponding approval/confirmation of the President.
dated December 12, 2011116 requesting omnibus authority to consolidate the savings and Furthermore, it is assured that the proposed realignments shall be within the
unutilized balances for fiscal year 2011. Pertinent portions of the memorandum of December 12, authorized Expenditure level.
2011 read:
5.0 Relative thereto, we have identified some expenditure items that may be
MEMORANDUM FOR THE PRESIDENT sourced from the said pooled appropriations in FY 2010 that will expire on
December 31, 2011 and appropriations in FY 2011 that may be declared as
xxxx savings to fund additional expenditures.

SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances and its Realignment
DATE: December 12, 2011
This is to respectfully request for the grant of Omnibus Authority to consolidate
savings/unutilized balances in FY 2011 corresponding to completed or discontinued projects
which may be pooled to fund additional projects or expenditures.
In addition, Mr. President, this measure will allow us to undertake projects even if their
implementation carries over to 2012 without necessarily impacting on our budget deficit cap next
year.
BACKGROUND
1.0 The DBM, during the course of performance reviews conducted on the
agencies’ operations, particularly on the implementation of their
projects/activities, including expenses incurred in undertaking the same,
have identified savings out of the 2011 General Appropriations Act. Said
savings correspond to completed or discontinued projects under certain
departments/agencies which may be pooled, for the following:
5.1 The 2010 Continuing Appropriations (pooled savings) is
proposed to be spent for the projects that we have identified to be
immediate actual disbursements considering that this same fund
source will expire on December 31, 2011.
5.2 With respect to the proposed expenditure items to be funded
from the FY 2011 Unreleased Appropriations, most of these are
the same projects for which the DBM is directed by the Office of
the President, thru the Executive Secretary, to source funds.
6.0 Among others, the following are such proposed additional projects that
have been chosen given their multiplier impact on economy and
infrastructure development, their beneficial effect on the poor, and their
translation into disbursements. Please note that we have classified the list of
proposed projects as follows:
7.0 x x x
FOR THE PRESIDENT’S APPROVAL
8.0 Foregoing considered, may we respectfully request for the President’s
approval for the following:
 8.1 Grant of omnibus authority to consolidate FY 2011
savings/unutilized balances and its realignment; and
8.2 The proposed additional projects identified for funding.
For His Excellency’s consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and to fund proposed projects were
contained in various other memoranda from Sec. Abad dated June 25, 2012,117 September 4,
2012,118 December 19, 2012,119 May 20, 2013,120 and September 25, 2013.121 The President
apparently approved all the requests, withholding approval only of the proposed projects
contained in the June 25, 2012 memorandum, as borne out by his marginal note therein to the
effect that the proposed projects should still be "subject to further discussions." 122
In order to implement the June25, 2012 memorandum, Sec. Abad issued NBC No. 541
(Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments
as of June 30, 2012),123 reproduced herein as follows:
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
TO: All Heads of Departments/Agencies/State Universities and Colleges and other Offices of the
National Government, Budget and Planning Officers; Heads of Accounting Units and All Others
Concerned
SUBJECT : Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated
Allotments as of June 30, 2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292 (Administrative Code of 1987),
periodically reviews and evaluates the departments/agencies’ efficiency and effectiveness in
utilizing budgeted funds for the delivery of services and production of goods, consistent with the
government priorities.
In the event that a measure is necessary to further improve the operational efficiency of the
government, the President is authorized to suspend or stop further use of funds allotted for any
agency or expenditure authorized in the General Appropriations Act. Withdrawal and pooling of
unutilized allotment releases can be effected by DBM based on authority of the President, as
mandated under Sections 38 and 39, Chapter 5, Book VI of EO 292.
For the first five months of 2012, the National Government has not met its spending targets. In
order to accelerate spending and sustain the fiscal targets during the year, expenditure
measures have to be implemented to optimize the utilization of available resources.
Departments/agencies have registered low spending levels, in terms of obligations and
disbursements per initial review of their 2012 performance. To enhance agencies’ performance,
the DBM conducts continuous consultation meetings and/or send call-up letters, requesting them
to identify slow-moving programs/projects and the factors/issues affecting their performance
(both pertaining to internal systems and those which are outside the agencies’ spheres of
control). Also, they are asked to formulate strategies and improvement plans for the rest of 2012.
Notwithstanding these initiatives, some departments/agencies have continued to post low
obligation levels as of end of first semester, thus resulting to substantial unobligated allotments.
In line with this, the President, per directive dated June 27, 2012 authorized the withdrawal of
unobligated allotments of agencies with low levels of obligations as of June 30, 2012, both for
continuing and current allotments. This measure will allow the maximum utilization of available
allotments to fund and undertake other priority expenditures of the national government.
2.0 Purpose
2.1 To provide the conditions and parameters on the withdrawal of
unobligated allotments of agencies as of June 30, 2012 to fund priority
and/or fast-moving programs/projects of the national government;
2.2 To prescribe the reports and documents to be used as bases on the
withdrawal of said unobligated allotments; and
2.3 To provide guidelines in the utilization or reallocation of the withdrawn
allotments.
3.0 Coverage
3.1 These guidelines shall cover the withdrawal of unobligated allotments as
of June 30, 2012 of all national government agencies (NGAs) charged
against FY 2011 Continuing Appropriation (R.A. No.10147) and FY 2012
Current Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE)
related to the implementation of programs and projects, as well as
capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension
benefits declared as savings by the agencies concerned based on
their updated/validated list of pensioners.
3.2 The withdrawal of unobligated allotments may cover the identified
programs, projects and activities of the departments/agencies reflected in
the DBM list shown as Annex A or specific programs and projects as may
be identified by the agencies.
4.0 Exemption
These guidelines shall not apply to the following:
4.1 NGAs
4.1.1 Constitutional Offices/Fiscal Autonomy Group, granted fiscal
autonomy under the Philippine Constitution; and
 4.1.2 State Universities and Colleges, adopting the Normative
Funding allocation scheme i.e., distribution of a predetermined
budget ceiling.
4.2 Fund Sources
4.2.1 Personal Services other than pension benefits;
4.2.2 MOOE items earmarked for specific purposes or subject to
realignment conditions per General Provisions of the GAA:
• Confidential and Intelligence Fund;
• Savings from Traveling, Communication,
Transportation and Delivery, Repair and Maintenance,
Supplies and Materials and Utility which shall be used
for the grant of Collective Negotiation Agreement
incentive benefit;
• Savings from mandatory expenditures which can be
realigned only in the last quarter after taking into
consideration the agency’s full year requirements, i.e.,
Petroleum, Oil and Lubricants, Water, Illumination,
Power Services, Telephone, other Communication
Services and Rent.
4.2.3 Foreign-Assisted Projects (loan proceeds and peso
counterpart);
4.2.4 Special Purpose Funds such as: E-Government Fund,
International Commitments Fund, PAMANA, Priority Development
Assistance Fund, Calamity Fund, Budgetary Support to GOCCs
and Allocation to LGUs, among others;
4.2.5 Quick Response Funds; and
4.2.6 Automatic Appropriations i.e., Retirement Life Insurance
Premium and Special Accounts in the General Fund.
5.0 Guidelines
5.1 National government agencies shall continue to undertake procurement
activities notwithstanding the implementation of the policy of withdrawal of
unobligated allotments until the end of the third quarter, FY 2012. Even
without the allotments, the agency shall proceed in undertaking the
procurement processes (i.e., procurement planning up to the conduct of
bidding but short of awarding of contract) pursuant to GPPB Circular Nos.
02-2008 and 01-2009 and DBM Circular Letter No. 2010-9.
5.2 For the purpose of determining the amount of unobligated allotments
that shall be withdrawn, all departments/agencies/operating units (OUs)
shall submit to DBM not later than July 30, 2012, the following budget
accountability reports as of June 30, 2012;
• Statement of Allotments, Obligations and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this
Circular, the agency’s latest report available shall be used by DBM as basis
for withdrawal of allotment. The DBM shall compute/approximate the
agency’s obligation level as of June 30 to derive its unobligated allotments
as of same period. Example: If the March 31 SAOB or FRO reflects actual
obligations of P 800M then the June 30 obligation level shall approximate to
₱1,600 M (i.e., ₱800 M x 2 quarters).
5.4 All released allotments in FY 2011 charged against R.A. No. 10147
which remained unobligated as of June 30, 2012 shall be immediately
considered for withdrawal. This policy is based on the following
considerations:
5.4.1 The departments/agencies’ approved priority programs and
projects are assumed to be implementation-ready and doable
during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations
may imply that the agency has a slower-than-programmed
implementation capacity or agency tends to implement projects
within a two-year timeframe.
5.5. Consistent with the President’s directive, the DBM shall, based on
evaluation of the reports cited above and results of consultations with the
departments/agencies, withdraw the unobligated allotments as of June 30,
2012 through issuance of negative Special Allotment Release Orders
(SAROs).
5.6 DBM shall prepare and submit to the President, a report on the
magnitude of withdrawn allotments. The report shall highlight the agencies
which failed to submit the June 30 reports required under this Circular.
5.7 The withdrawn allotments may be:
5.7.1 Reissued for the original programs and projects of the
agencies/OUs concerned, from which the allotments were
withdrawn;
5.7.2 Realigned to cover additional funding for other existing
programs and projects of the agency/OU; or
5.7.3 Used to augment existing programs and projects of any
agency and to fund priority programs and projects not considered
in the 2012 budget but expected to be started or implemented
during the current year.
5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs concerned may submit
to DBM a Special Budget Request (SBR), supported with the following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
 5.8.3 Proof that the project/activity has started the procurement
processes i.e., Proof of Posting and/or Advertisement of the
Invitation to Bid.
5.9 The deadline for submission of request/s pertaining to these categories
shall be until the end of the third quarter i.e., September 30, 2012. After said
cut-off date, the withdrawn allotments shall be pooled and form part of the
overall savings of the national government.
5.10 Utilization of the consolidated withdrawn allotments for other priority
programs and projects as cited under item 5.7.3 of this Circular, shall be
subject to approval of the President. Based on the approval of the
President, DBM shall issue the SARO to cover the approved priority
expenditures subject to submission by the agency/OU concerned of the
SBR and supported with PFP and MCP.
5.11 It is understood that all releases to be made out of the withdrawn
allotments (both 2011 and 2012 unobligated allotments) shall be within the
approved Expenditure Program level of the national government for the
current year. The SAROs to be issued shall properly disclose the
appropriation source of the release to determine the extent of allotment
validity, as follows:
• For charges under R.A. 10147 – allotments shall be valid up to
December 31, 2012; and
• For charges under R.A. 10155 – allotments shall be valid up to
December 31, 2013.
5.12 Timely compliance with the submission of existing BARs and other
reportorial requirements is reiterated for monitoring purposes.
6.0 Effectivity
This circular shall take effect immediately.
(Sgd.) FLORENCIO B. ABAD
Secretary
As can be seen, NBC No. 541 specified that the unobligated allotments of all agencies and
departments as of June 30, 2012 that were charged against the continuing appropriations for
fiscal year 2011 and the 2012 GAA (R.A. No. 10155) were subject to withdrawal through the
issuance of negative SAROs, but such allotments could be either: (1) reissued for the original
PAPs of the concerned agencies from which they were withdrawn; or (2) realigned to cover
additional funding for other existing PAPs of the concerned agencies; or (3) used to augment
existing PAPs of any agency and to fund priority PAPs not considered in the 2012 budget but
expected to be started or implemented in 2012. Financing the other priority PAPs was made
subject to the approval of the President. Note here that NBC No. 541 used terminologies like
"realignment" and "augmentation" in the application of the withdrawn unobligated allotments.
Taken together, all the issuances showed how the DAP was to be implemented and funded, that
is — (1) by declaring "savings" coming from the various departments and agencies derived from
pooling unobligated allotments and withdrawing unreleased appropriations; (2) releasing
unprogrammed funds; and (3) applying the "savings" and unprogrammed funds to augment
existing PAPs or to support other priority PAPs.
c. DAP was not an appropriation
measure; hence, no appropriation
law was required to adopt or to
implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did not enact a law to
establish the DAP, or to authorize the disbursement and release of public funds to implement the
DAP. Villegas, PHILCONSA, IBP, Araullo, and COURAGE observe that the appropriations
funded under the DAP were not included in the 2011, 2012 and 2013 GAAs. To petitioners IBP,
Araullo, and COURAGE, the DAP, being actually an appropriation that set aside public funds for
public use, should require an enabling law for its validity. VACC maintains that the DAP,
because it involved huge allocations that were separate and distinct from the GAAs,
circumvented and duplicated the GAAs without congressional authorization and control.
The petitioners contend in unison that based on how it was developed and implemented the
DAP violated the mandate of Section 29(1), Article VI of the 1987 Constitution that "[n]o money
shall be paid out of the Treasury except in pursuance of an appropriation made by law."
The OSG posits, however, that no law was necessary for the adoption and implementation of the
DAP because of its being neither a fund nor an appropriation, but a program or an administrative
system of prioritizing spending; and that the adoption of the DAP was by virtue of the authority of
the President as the Chief Executive to ensure that laws were faithfully executed.
We agree with the OSG’s position.
The DAP was a government policy or strategy designed to stimulate the economy through
accelerated spending. In the context of the DAP’s adoption and implementation being a function
pertaining to the Executive as the main actor during the Budget Execution Stage under its
constitutional mandate to faithfully execute the laws, including the GAAs, Congress did not need
to legislate to adopt or to implement the DAP. Congress could appropriate but would have
nothing more to do during the Budget Execution Stage. Indeed, appropriation was the act by
which Congress "designates a particular fund, or sets apart a specified portion of the public
revenue or of the money in the public treasury, to be applied to some general object of
governmental expenditure, or to some individual purchase or expense." 124 As pointed out in
Gonzales v. Raquiza:125 ‘"In a strict sense, appropriation has been defined ‘as nothing more than
the legislative authorization prescribed by the Constitution that money may be paid out of the
Treasury,’ while appropriation made by law refers to ‘the act of the legislature setting apart or
assigning to a particular use a certain sum to be used in the payment of debt or dues from the
State to its creditors.’"126
On the other hand, the President, in keeping with his duty to faithfully execute the laws, had
sufficient discretion during the execution of the budget to adapt the budget to changes in the
country’s economic situation.127 He could adopt a plan like the DAP for the purpose. He could
pool the savings and identify the PAPs to be funded under the DAP. The pooling of savings
pursuant to the DAP, and the identification of the PAPs to be funded under the DAP did not
involve appropriation in the strict sense because the money had been already set apart from the
public treasury by Congress through the GAAs. In such actions, the Executive did not usurp the
power vested in Congress under Section 29(1), Article VI of the Constitution.
3.
Unreleased appropriations and withdrawn
unobligated allotments under the DAP
were not savings, and the use of such
appropriations contravened Section 25(5),
Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly adopted by the
Executive to ramp up spending to accelerate economic growth, the challenges posed by the
petitioners constrain us to dissect the mechanics of the actual execution of the DAP. The
management and utilization of the public wealth inevitably demands a most careful scrutiny of
whether the Executive’s implementation of the DAP was consistent with the Constitution, the
relevant GAAs and other existing laws.
a. Although executive discretion
and flexibility are necessary in
the execution of the budget, any
transfer of appropriated funds
should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot anticipate all issues and needs that
may come into play once the budget reaches its execution stage. Executive discretion is
necessary at that stage to achieve a sound fiscal administration and assure effective budget
implementation. The heads of offices, particularly the President, require flexibility in their
operations under performance budgeting to enable them to make whatever adjustments are
needed to meet established work goals under changing conditions.128 In particular, the power to
transfer funds can give the President the flexibility to meet unforeseen events that may
otherwise impede the efficient implementation of the PAPs set by Congress in the GAA.
Congress has traditionally allowed much flexibility to the President in allocating funds pursuant
to the GAAs,129particularly when the funds are grouped to form lump sum accounts. 130 It is
assumed that the agencies of the Government enjoy more flexibility when the GAAs provide
broader appropriation items.131 This flexibility comes in the form of policies that the Executive
may adopt during the budget execution phase. The DAP – as a strategy to improve the country’s
economic position – was one policy that the President decided to carry out in order to fulfill his
mandate under the GAAs.
Denying to the Executive flexibility in the expenditure process would be counterproductive. In
Presidential Spending Power,132 Prof. Louis Fisher, an American constitutional scholar whose
specialties have included budget policy, has justified extending discretionary authority to the
Executive thusly:
[T]he impulse to deny discretionary authority altogether should be resisted. There are many
number of reasons why obligations and outlays by administrators may have to differ from
appropriations by legislators. Appropriations are made many months, and sometimes years, in
advance of expenditures. Congress acts with imperfect knowledge in trying to legislate in fields
that are highly technical and constantly undergoing change. New circumstances will develop to
make obsolete and mistaken the decisions reached by Congress at the appropriation stage. It is
not practicable for Congress to adjust to each new development by passing separate
supplemental appropriation bills. Were Congress to control expenditures by confining
administrators to narrow statutory details, it would perhaps protect its power of the purse but it
would not protect the purse itself. The realities and complexities of public policy require
executive discretion for the sound management of public funds.
xxxx
x x x The expenditure process, by its very nature, requires substantial discretion for
administrators. They need to exercise judgment and take responsibility for their actions, but
those actions ought to be directed toward executing congressional, not administrative policy. Let
there be discretion, but channel it and use it to satisfy the programs and priorities established by
Congress.
In contrast, by allowing to the heads of offices some power to transfer funds within their
respective offices, the Constitution itself ensures the fiscal autonomy of their offices, and at the
same time maintains the separation of powers among the three main branches of the
Government. The Court has recognized this, and emphasized so in Bengzon v. Drilon,133 viz:
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The imposition
of restrictions and constraints on the manner the independent constitutional offices allocate and
utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative
not only of the express mandate of the Constitution but especially as regards the Supreme
Court, of the independence and separation of powers upon which the entire fabric of our
constitutional system is based.
In the case of the President, the power to transfer funds from one item to another within the
Executive has not been the mere offshoot of established usage, but has emanated from law
itself. It has existed since the time of the American Governors-General.134 Act No. 1902 (An Act
authorizing the Governor-General to direct any unexpended balances of appropriations be
returned to the general fund of the Insular Treasury and to transfer from the general fund
moneys which have been returned thereto), passed on May 18, 1909 by the First Philippine
Legislature,135 was the first enabling law that granted statutory authority to the President to
transfer funds. The authority was without any limitation, for the Act explicitly empowered the
Governor-General to transfer any unexpended balance of appropriations for any bureau or office
to another, and to spend such balance as if it had originally been appropriated for that bureau or
office.
From 1916 until 1920, the appropriations laws set a cap on the amounts of funds that could be
transferred, thereby limiting the power to transfer funds. Only 10% of the amounts appropriated
for contingent or miscellaneous expenses could be transferred to a bureau or office, and the
transferred funds were to be used to cover deficiencies in the appropriations also for
miscellaneous expenses of said bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred from items under miscellaneous
expenses to any other item of a certain bureau or office was removed.
During the Commonwealth period, the power of the President to transfer funds continued to be
governed by the GAAs despite the enactment of the Constitution in 1935. It is notable that the
1935 Constitution did not include a provision on the power to transfer funds. At any rate, a shift
in the extent of the President’s power to transfer funds was again experienced during this era,
with the President being given more flexibility in implementing the budget. The GAAs provided
that the power to transfer all or portions of the appropriations in the Executive Department could
be made in the "interest of the public, as the President may determine."136
In its time, the 1971 Constitutional Convention wanted to curtail the President’s seemingly
unbounded discretion in transferring funds.137 Its Committee on the Budget and Appropriation
proposed to prohibit the transfer of funds among the separate branches of the Government and
the independent constitutional bodies, but to allow instead their respective heads to augment
items of appropriations from savings in their respective budgets under certain limitations. 138 The
clear intention of the Convention was to further restrict, not to liberalize, the power to transfer
appropriations.139 Thus, the Committee on the Budget and Appropriation initially considered
setting stringent limitations on the power to augment, and suggested that the augmentation of an
item of appropriation could be made "by not more than ten percent if the original item of
appropriation to be augmented does not exceed one million pesos, or by not more than five
percent if the original item of appropriation to be augmented exceeds one million pesos." 140 But
two members of the Committee objected to the ₱1,000,000.00 threshold, saying that the amount
was arbitrary and might not be reasonable in the future. The Committee agreed to eliminate the
₱1,000,000.00 threshold, and settled on the ten percent limitation. 141
In the end, the ten percent limitation was discarded during the plenary of the Convention, which
adopted the following final version under Section 16, Article VIII of the 1973 Constitution, to wit:
(5) No law shall be passed authorizing any transfer of appropriations; however, the President,
the Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may by law be authorized to augment any item in the general
appropriations law for their respective offices from savings in other items of their respective
appropriations.
The 1973 Constitution explicitly and categorically prohibited the transfer of funds from one item
to another, unless Congress enacted a law authorizing the President, the Prime Minister, the
Speaker, the Chief Justice of the Supreme Court, and the heads of the Constitutional omissions
to transfer funds for the purpose of augmenting any item from savings in another item in the
GAA of their respective offices. The leeway was limited to augmentation only, and was further
constricted by the condition that the funds to be transferred should come from savings from
another item in the appropriation of the office.142
On July 30, 1977, President Marcos issued PD No. 1177, providing in its Section 44 that:
Section 44. Authority to Approve Fund Transfers. The President shall have the authority to
transfer any fund appropriated for the different departments, bureaus, offices and agencies of
the Executive Department which are included in the General Appropriations Act, to any program,
project, or activity of any department, bureau or office included in the General Appropriations Act
or approved after its enactment.
The President shall, likewise, have the authority to augment any appropriation of the Executive
Department in the General Appropriations Act, from savings in the appropriations of another
department, bureau, office or agency within the Executive Branch, pursuant to the provisions of
Article VIII, Section 16 (5) of the Constitution.
In Demetria v. Alba, however, the Court struck down the first paragraph of Section 44 for
contravening Section 16(5)of the 1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege granted under
said Section 16. It empowers the President to indiscriminately transfer funds from one
department, bureau, office or agency of the Executive Department to any program, project or
activity of any department, bureau or office included in the General Appropriations Act or
approved after its enactment, without regard as to whether or not the funds to be transferred are
actually savings in the item from which the same are to be taken, or whether or not the transfer
is for the purpose of augmenting the item to which said transfer is to be made. It does not only
completely disregard the standards set in the fundamental law, thereby amounting to an undue
delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such
constitutional infirmities render the provision in question null and void. 143
It is significant that Demetria was promulgated 25 days after the ratification by the people of the
1987 Constitution, whose Section 25(5) of Article VI is identical to Section 16(5), Article VIII of
the 1973 Constitution, to wit:
Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their respective offices from savings in
other items of their respective appropriations.
xxxx
The foregoing history makes it evident that the Constitutional Commission included Section
25(5), supra, to keep a tight rein on the exercise of the power to transfer funds appropriated by
Congress by the President and the other high officials of the Government named therein. The
Court stated in Nazareth v. Villar:144
In the funding of current activities, projects, and programs, the general rule should still be that
the budgetary amount contained in the appropriations bill is the extent Congress will determine
as sufficient for the budgetary allocation for the proponent agency. The only exception is found
in Section 25 (5), Article VI of the Constitution, by which the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court,
and the heads of Constitutional Commissions are authorized to transfer appropriations to
augmentany item in the GAA for their respective offices from the savings in other items of their
respective appropriations. The plain language of the constitutional restriction leaves no room for
the petitioner’s posture, which we should now dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named in Section 25(5),
Article VI of the Constitution limiting the authority to transfer savings only to augment another
item in the GAA is strictly but reasonably construed as exclusive. As the Court has expounded in
Lokin, Jr. v. Commission on Elections:
When the statute itself enumerates the exceptions to the application of the general rule, the
exceptions are strictly but reasonably construed. The exceptions extend only as far as their
language fairly warrants, and all doubts should be resolved in favor of the general provision
rather than the exceptions. Where the general rule is established by a statute with exceptions,
none but the enacting authority can curtail the former. Not even the courts may add to the latter
by implication, and it is a rule that an express exception excludes all others, although it is always
proper in determining the applicability of the rule to inquire whether, in a particular case, it
accords with reason and justice.
The appropriate and natural office of the exception is to exempt something from the scope of the
general words of a statute, which is otherwise within the scope and meaning of such general
words. Consequently, the existence of an exception in a statute clarifies the intent that the
statute shall apply to all cases not excepted. Exceptions are subject to the rule of strict
construction; hence, any doubt will be resolved in favor of the general provision and against the
exception. Indeed, the liberal construction of a statute will seem to require in many
circumstances that the exception, by which the operation of the statute is limited or abridged,
should receive a restricted construction.
Accordingly, we should interpret Section 25(5), supra, in the context of a limitation on the
President’s discretion over the appropriations during the Budget Execution Phase.
b. Requisites for the valid transfer of
appropriated funds under Section
25(5), Article VI of the 1987
Constitution
The transfer of appropriated funds, to be valid under Section 25(5), supra, must be made upon a
concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the Senate, the Speaker
of the House of Representatives, the Chief Justice of the Supreme Court, and the
heads of the Constitutional Commissions to transfer funds within their respective
offices;
(2) The funds to be transferred are savings generated from the appropriations for their
respective offices; and (3) The purpose of the transfer is to augment an item in the
general appropriations law for their respective offices.
b.1. First Requisite–GAAs of 2011 and
2012 lacked valid provisions to
authorize transfers of funds under
the DAP; hence, transfers under the
DAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the Constitution, must have an
implementing law for it to be operative. That law, generally, is the GAA of a given fiscal year. To
comply with the first requisite, the GAAs should expressly authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the other high officials the authority
to transfer funds was Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker
of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby
authorized to augment any item in this Act from savings in other items of their respective
appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
Section 53. Use of Savings. The President of the Philippines, the Senate President, the Speaker
of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby
authorized to augment any item in this Act from savings in other items of their respective
appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by the DBM as
justification for the use of savings under the DAP.145
A reading shows, however, that the aforequoted provisions of the GAAs of 2011 and 2012 were
textually unfaithful to the Constitution for not carrying the phrase "for their respective offices"
contained in Section 25(5), supra. The impact of the phrase "for their respective offices" was to
authorize only transfers of funds within their offices (i.e., in the case of the President, the transfer
was to an item of appropriation within the Executive). The provisions carried a different phrase
("to augment any item in this Act"), and the effect was that the 2011 and 2012 GAAs thereby
literally allowed the transfer of funds from savings to augment any item in the GAAs even if the
item belonged to an office outside the Executive. To that extent did the 2011 and 2012 GAAs
contravene the Constitution. At the very least, the aforequoted provisions cannot be used to
claim authority to transfer appropriations from the Executive to another branch, or to a
constitutional commission.
Apparently realizing the problem, Congress inserted the omitted phrase in the counterpart
provision in the 2013 GAA, to wit:
Section 52. Use of Savings. The President of the Philippines, the Senate President, the Speaker
of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby
authorized to use savings in their respective appropriations to augment actual deficiencies
incurred for the current year in any item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section 25(5), supra, existed,
there still remained two other requisites to be met, namely: that the source of funds to be
transferred were savings from appropriations within the respective offices; and that the transfer
must be for the purpose of augmenting an item of appropriation within the respective offices.
b.2. Second Requisite – There were
no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP — the unreleased appropriations and
withdrawn unobligated allotments — were not actual savings within the context of Section 25(5),
supra, and the relevant provisions of the GAAs. Belgica argues that "savings" should be
understood to refer to the excess money after the items that needed to be funded have been
funded, or those that needed to be paid have been paid pursuant to the budget. 146 The
petitioners posit that there could be savings only when the PAPs for which the funds had been
appropriated were actually implemented and completed, or finally discontinued or abandoned.
They insist that savings could not be realized with certainty in the middle of the fiscal year; and
that the funds for "slow-moving" PAPs could not be considered as savings because such PAPs
had not actually been abandoned or discontinued yet.147 They stress that NBC No. 541, by
allowing the withdrawn funds to be reissued to the "original program or project from which it was
withdrawn," conceded that the PAPs from which the supposed savings were taken had not been
completed, abandoned or discontinued.148
The OSG represents that "savings" were "appropriations balances," being the difference
between the appropriation authorized by Congress and the actual amount allotted for the
appropriation; that the definition of "savings" in the GAAs set only the parameters for
determining when savings occurred; that it was still the President (as well as the other officers
vested by the Constitution with the authority to augment) who ultimately determined when
savings actually existed because savings could be determined only during the stage of budget
execution; that the President must be given a wide discretion to accomplish his tasks; and that
the withdrawn unobligated allotments were savings inasmuch as they were clearly "portions or
balances of any programmed appropriation…free from any obligation or encumbrances which
are (i) still available after the completion or final discontinuance or abandonment of the work,
activity or purpose for which the appropriation is authorized…"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should be borne in mind. The first
principle is that Congress wields the power of the purse. Congress decides how the budget will
be spent; what PAPs to fund; and the amounts of money to be spent for each PAP. The second
principle is that the Executive, as the department of the Government tasked to enforce the laws,
is expected to faithfully execute the GAA and to spend the budget in accordance with the
provisions of the GAA.149 The Executive is expected to faithfully implement the PAPs for which
Congress allocated funds, and to limit the expenditures within the allocations, unless exigencies
result to deficiencies for which augmentation is authorized, subject to the conditions provided by
law. The third principle is that in making the President’s power to augment operative under the
GAA, Congress recognizes the need for flexibility in budget execution. In so doing, Congress
diminishes its own power of the purse, for it delegates a fraction of its power to the Executive.
But Congress does not thereby allow the Executive to override its authority over the purse as to
let the Executive exceed its delegated authority. And the fourth principle is that savings should
be actual. "Actual" denotes something that is real or substantial, or something that exists
presently in fact, as opposed to something that is merely theoretical, possible, potential or
hypothetical.150
The foregoing principles caution us to construe savings strictly against expanding the scope of
the power to augment. It is then indubitable that the power to augment was to be used only
when the purpose for which the funds had been allocated were already satisfied, or the need for
such funds had ceased to exist, for only then could savings be properly realized. This
interpretation prevents the Executive from unduly transgressing Congress’ power of the purse.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013, reflected this
interpretation and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in this Act free from any
obligation or encumbrance which are: (i) still available after the completion or final
discontinuance or abandonment of the work, activity or purpose for which the appropriation is
authorized; (ii) from appropriations balances arising from unpaid compensation and related costs
pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriations
balances realized from the implementation of measures resulting in improved systems and
efficiencies and thus enabled agencies to meet and deliver the required or planned targets,
programs and services approved in this Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition were a sure indication that savings
could be generated only upon the purpose of the appropriation being fulfilled, or upon the need
for the appropriation being no longer existent.
The phrase "free from any obligation or encumbrance" in the definition of savings in the GAAs
conveyed the notion that the appropriation was at that stage when the appropriation was already
obligated and the appropriation was already released. This interpretation was reinforced by the
enumeration of the three instances for savings to arise, which showed that the appropriation
referred to had reached the agency level. It could not be otherwise, considering that only when
the appropriation had reached the agency level could it be determined whether (a) the PAP for
which the appropriation had been authorized was completed, finally discontinued, or abandoned;
or (b) there were vacant positions and leaves of absence without pay; or (c) the required or
planned targets, programs and services were realized at a lesser cost because of the
implementation of measures resulting in improved systems and efficiencies.
The DBM declares that part of the savings brought under the DAP came from "pooling of
unreleased appropriations such as unreleased Personnel Services appropriations which will
lapse at the end of the year, unreleased appropriations of slow moving projects and discontinued
projects per Zero-Based Budgeting findings."
The declaration of the DBM by itself does not state the clear legal basis for the treatment of
unreleased or unalloted appropriations as savings.
The fact alone that the appropriations are unreleased or unalloted is a mere description of the
status of the items as unalloted or unreleased. They have not yet ripened into categories of
items from which savings can be generated. Appropriations have been considered "released" if
there has already been an allotment or authorization to incur obligations and disbursement
authority. This means that the DBM has issued either an ABM (for those not needing clearance),
or a SARO (for those needing clearance), and consequently an NCA, NCAA or CDC, as the
case may be. Appropriations remain unreleased, for instance, because of noncompliance with
documentary requirements (like the Special Budget Request), or simply because of the
unavailability of funds. But the appropriations do not actually reach the agencies to which they
were allocated under the GAAs, and have remained with the DBM technically speaking. Ergo,
unreleased appropriations refer to appropriations with allotments but without disbursement
authority.
For us to consider unreleased appropriations as savings, unless these met the statutory
definition of savings, would seriously undercut the congressional power of the purse, because
such appropriations had not even reached and been used by the agency concerned vis-à-vis the
PAPs for which Congress had allocated them. However, if an agency has unfilled positions in its
plantilla and did not receive an allotment and NCA for such vacancies, appropriations for such
positions, although unreleased, may already constitute savings for that agency under the second
instance.
Unobligated allotments, on the other hand, were encompassed by the first part of the definition
of "savings" in the GAA, that is, as "portions or balances of any programmed appropriation in
this Act free from any obligation or encumbrance." But the first part of the definition was further
qualified by the three enumerated instances of when savings would be realized. As such,
unobligated allotments could not be indiscriminately declared as savings without first
determining whether any of the three instances existed. This signified that the DBM’s withdrawal
of unobligated allotments had disregarded the definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring Opinion that MOOE
appropriations are deemed divided into twelve monthly allocations within the fiscal year; hence,
savings could be generated monthly from the excess or unused MOOE appropriations other
than the Mandatory Expenditures and Expenditures for Business-type Activities because of the
physical impossibility to obligate and spend such funds as MOOE for a period that already
lapsed. Following this observation, MOOE for future months are not savings and cannot be
transferred.
The DBM’s Memorandum for the President dated June 25, 2012 (which became the basis of
NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews conducted on the agencies’
operations, particularly on the implementation of their projects/activities, including
expenses incurred in undertaking the same, have been continuously calling the
attention of all National Government agencies (NGAs) with low levels of obligations as
of end of the first quarter to speedup the implementation of their programs and
projects in the second quarter.
6.0 Said reminders were made in a series of consultation meetings with the concerned
agencies and with call-up letters sent.
7.0 Despite said reminders and the availability of funds at the department’s disposal,
the level of financial performance of some departments registered below program,
with the targeted obligations/disbursements for the first semester still not being met.
8.0 In order to maximize the use of the available allotment, all unobligated balances as
of June 30, 2012, both for continuing and current allotments shall be withdrawn and
pooled to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list
of slow moving projects to be identified by the agencies and their catch up plans to be
evaluated by the DBM.
It is apparent from the foregoing text that the withdrawal of unobligated allotments would be
based on whether the allotments pertained to slow-moving projects, or not. However, NBC No.
541 did not set in clear terms the criteria for the withdrawal of unobligated allotments, viz:
3.1. These guidelines shall cover the withdrawal of unobligated allotments as of June
30, 2012 ofall national government agencies (NGAs) charged against FY 2011
Continuing Appropriation (R.A. No. 10147) and FY 2012 Current Appropriation (R.A.
No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the
implementation of programs and projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension benefits
declared as savings by the agencies concerned based on their
undated/validated list of pensioners.
A perusal of its various provisions reveals that NBC No. 541 targeted the "withdrawal of
unobligated allotments of agencies with low levels of obligations" 151 "to fund priority and/or fast-
moving programs/projects."152 But the fact that the withdrawn allotments could be "[r]eissued for
the original programs and projects of the agencies/OUs concerned, from which the allotments
were withdrawn"153 supported the conclusion that the PAPs had not yet been finally discontinued
or abandoned. Thus, the purpose for which the withdrawn funds had been appropriated was not
yet fulfilled, or did not yet cease to exist, rendering the declaration of the funds as savings
impossible.
Worse, NBC No. 541 immediately considered for withdrawal all released allotments in 2011
charged against the 2011 GAA that had remained unobligated based on the following
considerations, to wit:
5.4.1 The departments/agencies’ approved priority programs and projects are
assumed to be implementation-ready and doable during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations may imply that the
agency has a slower-than-programmed implementation capacity or agency tends to
implement projects within a two-year timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that affected the unobligated allotments
for continuing and current appropriations as of June 30, 2012, disregarded the 2-year period of
availability of the appropriations for MOOE and capital outlay extended under Section 65,
General Provisions of the 2011 GAA, viz:
Section 65. Availability of Appropriations. — Appropriations for MOOE and capital outlays
authorized in this Act shall be available for release and obligation for the purpose specified, and
under the same special provisions applicable thereto, for a period extending to one fiscal year
after the end of the year in which such items were appropriated: PROVIDED, That
appropriations for MOOE and capital outlays under R.A. No. 9970 shall be made available up to
the end of FY 2011: PROVIDED, FURTHER, That a report on these releases and obligations
shall be submitted to the Senate Committee on Finance and the House Committee on
Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. — Appropriations for MOOE and capital outlays
authorized in this Act shall be available for release and obligation for the purpose specified, and
under the same special provisions applicable thereto, for a period extending to one fiscal year
after the end of the year in which such items were appropriated: PROVIDED, That a report on
these releases and obligations shall be submitted to the Senate Committee on Finance and the
House Committee on Appropriations, either in printed form or by way of electronic document.154
Thus, another alleged area of constitutional infirmity was that the DAP and its relevant issuances
shortened the period of availability of the appropriations for MOOE and capital outlays.
Congress provided a one-year period of availability of the funds for all allotment classes in the
2013 GAA (R.A. No. 10352), to wit:
Section 63. Availability of Appropriations.— All appropriations authorized in this Act shall be
available for release and obligation for the purposes specified, and under the same special
provisions applicable thereto, until the end of FY 2013: PROVIDED, That a report on these
releases and obligations shall be submitted to the Senate Committee on Finance and House
Committee on Appropriations, either in printed form or by way of electronic document.
Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad sought omnibus
authority to consolidate savings and unutilized balances to fund the DAP on a quarterly basis,
viz:
7.0 If the level of financial performance of some department will register below
program, even with the availability of funds at their disposal, the targeted
obligations/disbursements for each quarter will not be met. It is important to note that
these funds will lapse at the end of the fiscal year if these remain unobligated.
8.0 To maximize the use of the available allotment, all unobligated balances at the end
of every quarter, both for continuing and current allotments shall be withdrawn and
pooled to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list
of slow moving projects to be identified by the agencies and their catch up plans to be
evaluated by the DBM.
The validity period of the affected appropriations, already given the brief Lifes pan of one year,
was further shortened to only a quarter of a year under the DBM’s memorandum dated May 20,
2013.
The petitioners accuse the respondents of forcing the generation of savings in order to have a
larger fund available for discretionary spending. They aver that the respondents, by withdrawing
unobligated allotments in the middle of the fiscal year, in effect deprived funding for PAPs with
existing appropriations under the GAAs.155
The respondents belie the accusation, insisting that the unobligated allotments were being
withdrawn upon the instance of the implementing agencies based on their own assessment that
they could not obligate those allotments pursuant to the President’s directive for them to spend
their appropriations as quickly as they could in order to ramp up the economy.156
We agree with the petitioners.
Contrary to the respondents’ insistence, the withdrawals were upon the initiative of the DBM
itself. The text of NBC No. 541 bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments that shall be withdrawn,
all departments/agencies/operating units (OUs) shall submit to DBM not later than July 30, 2012,
the following budget accountability reports as of June 30, 2012;
• Statement of Allotments, Obligation and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the
agency’s latest report available shall be used by DBM as basis for withdrawal of allotment. The
DBM shall compute/approximate the agency’s obligation level as of June 30 to derive its
unobligated allotments as of same period. Example: If the March 31 SAOB or FRO reflects
actual obligations of P 800M then the June 30 obligation level shall approximate to ₱1,600 M
(i.e., ₱800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal and transfer of unobligated
allotments and the pooling of unreleased appropriations; and that the unbridled withdrawal of
unobligated allotments and the retention of appropriated funds were akin to the impoundment of
appropriations that could be allowed only in case of "unmanageable national government budget
deficit" under the GAAs,157 thus violating the provisions of the GAAs of 2011, 2012 and 2013
prohibiting the retention or deduction of allotments.158
In contrast, the respondents emphasize that NBC No. 541 adopted a spending, not saving,
policy as a last-ditch effort of the Executive to push agencies into actually spending their
appropriations; that such policy did not amount to an impoundment scheme, because
impoundment referred to the decision of the Executive to refuse to spend funds for political or
ideological reasons; and that the withdrawal of allotments under NBC No. 541 was made
pursuant to Section 38, Chapter 5, Book VI of the Administrative Code, by which the President
was granted the authority to suspend or otherwise stop further expenditure of funds allotted to
any agency whenever in his judgment the public interest so required.
The assertions of the petitioners are upheld. The withdrawal and transfer of unobligated
allotments and the pooling of unreleased appropriations were invalid for being bereft of legal
support. Nonetheless, such withdrawal of unobligated allotments and the retention of
appropriated funds cannot be considered as impoundment.
According to Philippine Constitution Association v. Enriquez: 159 "Impoundment refers to a refusal
by the President, for whatever reason, to spend funds made available by Congress. It is the
failure to spend or obligate budget authority of any type." Impoundment under the GAA is
understood to mean the retention or deduction of appropriations. The 2011 GAA authorized
impoundment only in case of unmanageable National Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No appropriations authorized
under this Act shall be impounded through retention or deduction, unless in accordance with the
rules and regulations to be issued by the DBM: PROVIDED, That all the funds appropriated for
the purposes, programs, projects and activities authorized under this Act, except those covered
under the Unprogrammed Fund, shall be released pursuant to Section 33 (3), Chapter 5, Book
VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit. Retention or deduction of
appropriations authorized in this Act shall be effected only in cases where there is an
unmanageable national government budget deficit.
Unmanageable national government budget deficit as used in this section shall be construed to
mean that (i) the actual national government budget deficit has exceeded the quarterly budget
deficit targets consistent with the full-year target deficit as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and approved by Congress
pursuant to Section 22, Article VII of the Constitution, or (ii) there are clear economic indications
of an impending occurrence of such condition, as determined by the Development Budget
Coordinating Committee and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should not be regarded as
impoundment because it entailed only the transfer of funds, not the retention or deduction of
appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions of the 2012 and 2013 GAAs)
be applicable. They uniformly stated:
Section 68. Prohibition Against Retention/Deduction of Allotment. Fund releases from
appropriations provided in this Act shall be transmitted intact or in full to the office or agency
concerned. No retention or deduction as reserves or overhead shall be made, except as
authorized by law, or upon direction of the President of the Philippines. The COA shall ensure
compliance with this provision to the extent that sub-allotments by agencies to their subordinate
offices are in conformity with the release documents issued by the DBM.
The provision obviously pertained to the retention or deduction of allotments upon their release
from the DBM, which was a different matter altogether. The Court should not expand the
meaning of the provision by applying it to the withdrawal of allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to
justify the withdrawal of unobligated allotments. But the provision authorized only the suspension
or stoppage of further expenditures, not the withdrawal of unobligated allotments, to wit:
Section 38. Suspension of Expenditure of Appropriations.- Except as otherwise provided in the
General Appropriations Act and whenever in his judgment the public interest so requires, the
President, upon notice to the head of office concerned, is authorized to suspend or otherwise
stop further expenditure of funds allotted for any agency, or any other expenditure authorized in
the General Appropriations Act, except for personal services appropriations used for permanent
officials and employees.
Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38,
supra, but instead transferred the funds to other PAPs.
It is relevant to remind at this juncture that the balances of appropriations that remained
unexpended at the end of the fiscal year were to be reverted to the General Fund.1âwphi1 This
was the mandate of Section 28, Chapter IV, Book VI of the Administrative Code, to wit:
Section 28. Reversion of Unexpended Balances of Appropriations, Continuing Appropriations.-
Unexpended balances of appropriations authorized in the General Appropriation Act shall revert
to the unappropriated surplus of the General Fund at the end of the fiscal year and shall not
thereafter be available for expenditure except by subsequent legislative enactment: Provided,
that appropriations for capital outlays shall remain valid until fully spent or reverted: provided,
further, that continuing appropriations for current operating expenditures may be specifically
recommended and approved as such in support of projects whose effective implementation calls
for multi-year expenditure commitments: provided, finally, that the President may authorize the
use of savings realized by an agency during given year to meet non-recurring expenditures in a
subsequent year.
The balances of continuing appropriations shall be reviewed as part of the annual budget
preparation process and the preparation process and the President may approve upon
recommendation of the Secretary, the reversion of funds no longer needed in connection with
the activities funded by said continuing appropriations.
The Executive could not circumvent this provision by declaring unreleased appropriations and
unobligated allotments as savings prior to the end of the fiscal year.
b.3. Third Requisite – No funds from
savings could be transferred under
the DAP to augment deficient items
not provided in the GAA
The third requisite for a valid transfer of funds is that the purpose of the transfer should be "to
augment an item in the general appropriations law for the respective offices." The term
"augment" means to enlarge or increase in size, amount, or degree. 160
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the appropriation
for the PAP item to be augmented must be deficient, to wit: –
x x x Augmentation implies the existence in this Act of a program, activity, or project with an
appropriation, which upon implementation, or subsequent evaluation of needed resources, is
determined to be deficient. In no case shall a non-existent program, activity, or project, be
funded by augmentation from savings or by the use of appropriations otherwise authorized in
this Act.
In other words, an appropriation for any PAP must first be determined to be deficient before it
could be augmented from savings. Note is taken of the fact that the 2013 GAA already made this
quite clear, thus:
Section 52. Use of Savings. The President of the Philippines, the Senate President, the Speaker
of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby
authorized to use savings in their respective appropriations to augment actual deficiencies
incurred for the current year in any item of their respective appropriations.
argument, the OSG has submitted seven evidence packets containing memoranda, SAROs, and
other pertinent documents relative to the implementation and fund transfers under the DAP. 168
Upon careful review of the documents contained in the seven evidence packets, we conclude
that the "savings" pooled under the DAP were allocated to PAPs that were not covered by any
appropriations in the pertinent GAAs.
For example, the SARO issued on December 22, 2011 for the highly vaunted Disaster Risk,
Exposure, Assessment and Mitigation (DREAM) project under the Department of Science and
Technology (DOST) covered the amount of ₱1.6 Billion,169 broken down as follows:
APPROPRIATION PARTICULARS AMOUNT
CODE AUTHORIZED

As of 2013, a total of ₱144.4 billion worth of PAPs were implemented through the DAP. 161 A.03.a.01.a Generation of new knowledge and technologies and research
capability building in priority areas identified as strategic to
National Development
Of this amount ₱82.5 billion were released in 2011 and ₱54.8 billion in 2012. 162 Sec. Abad has
Personnel Services
reported that 9% of the total DAP releases were applied to the PAPs identified by the
Maintenance and Other Operating Expenses P 43,504,0
legislators.163
Capital Outlays 1,164,517,
391,978,3
The petitioners disagree, however, and insist that the DAP supported the following PAPs that
P 1,600,000,
had not been covered with appropriations in the respective GAAs, namely:

(i) ₱1.5 billion for the Cordillera People’s Liberation Army; the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that Congress had
appropriated only ₱537,910,000 for MOOE, but nothing for personnel services and capital
(ii) ₱1.8 billion for the Moro National Liberation Front; outlays, to wit:

(iii) ₱700 million for assistance to Quezon Province;164

Personnel Maintenance Capital TOTAL
Services and Other Outlays
(iv) ₱50 million to ₱100 (million) each to certain senators; 165 Operating
Expenditures
(v) ₱10 billion for the relocation of families living along dangerous zones under the
National Housing Authority;
III. Operations
(vi) ₱10 billion and ₱20 billion equity infusion under the Bangko Sentral;

(vii) ₱5.4 billion landowners’ compensation under the Department of Agrarian Reform; a. Funding Assistance to 177,406,000 1,887,365,000 49,090,000 2,113,861,000
Science
(viii) ₱8.6 billion for the ARMM comprehensive peace and development program; and Technology
Activities
(ix) ₱6.5 billion augmentation of LGU internal revenue allotments

(x) ₱5 billion for crucial projects like tourism road construction under the Department 1. Central Office 1,554,238,000 1,554,238,000
of Tourism and the Department of Public Works and Highways;

(xi) ₱1.8 billion for the DAR-DPWH Tulay ng Pangulo; a. Generation of

new
(xii) ₱1.96 billion for the DOH-DPWH rehabilitation of regional health units; and knowledge and
technologies and
(xiii) ₱4 billion for the DepEd-PPP school infrastructure projects.166 research
capability building
In refutation, the OSG argues that a total of 116 DAP-financed PAPs were implemented, had in
appropriation covers, and could properly be accounted for because the funds were released priority areas 537,910,000 537,910,000
following and pursuant to the standard practices adopted by the DBM. 167 In support of its identified as

strategic to
National
Development
Aside from this transfer under the DAP to the DREAM project exceeding by almost 300% the
appropriation by Congress for the program Generation of new knowledge and technologies and
research capability building in priority areas identified as strategic to National Development, the
Executive allotted funds for personnel services and capital outlays. The Executive thereby
substituted its will to that of Congress. Worse, the Executive had not earlier proposed any
amount for personnel services and capital outlays in the NEP that became the basis of the 2011
GAA.170
It is worth stressing in this connection that the failure of the GAAs to set aside any amounts for
an expense category sufficiently indicated that Congress purposely did not see fit to fund, much
less implement, the PAP concerned. This indication becomes clearer when even the President
himself did not recommend in the NEP to fund the PAP. The consequence was that any PAP
requiring expenditure that did not receive any appropriation under the GAAs could only be a new
PAP, any funding for which would go beyond the authority laid down by Congress in enacting
the GAAs. That happened in some instances under the DAP.
In relation to the December 22, 2011 SARO issued to the Philippine Council for Industry, Energy
and Emerging Technology Research and Development (DOST-PCIEETRD)171 for Establishment
of the Advanced Failure Analysis Laboratory, which reads:
PROPRIATION PARTICULARS AMOUNT
CODE AUTHORIZED
Development, integration and coordination of the National Research System
A.02.a for Industry, Energy and Emerging Technology and Related Fields
Capital Outlays P 300,000,000
the appropriation code and the particulars appearing in the SARO did not correspond to the
program specified in the GAA, whose particulars were Research and Management
Services(inclusive of the following activities: (1) Technological and Economic Assessment for
Industry, Energy and Utilities; (2) Dissemination of Science and Technology Information; and (3)
Management of PCIERD Information System for Industry, Energy and Utilities. Even assuming
that Development, integration and coordination of the National Research System for Industry,
Energy and Emerging Technology and Related Fields– the particulars stated in the SARO –
could fall under the broad program description of Research and Management Services– as
appearing in the SARO, it would nonetheless remain a new activity by reason of its not being
specifically stated in the GAA. As such, the DBM, sans legislative authorization, could not validly
fund and implement such PAP under the DAP.
In defending the disbursements, however, the OSG contends that the Executive enjoyed sound
discretion in implementing the budget given the generality in the language and the broad policy
objectives identified under the GAAs;172 and that the President enjoyed unlimited authority to
spend the initial appropriations under his authority to declare and utilize savings,173 and in
keeping with his duty to faithfully execute the laws.
Although the OSG rightly contends that the Executive was authorized to spend in line with its
mandate to faithfully execute the laws (which included the GAAs), such authority did not
translate to unfettered discretion that allowed the President to substitute his own will for that of
Congress. He was still required to remain faithful to the provisions of the GAAs, given that his
power to spend pursuant to the GAAs was but a delegation to him from Congress. Verily, the
power to spend the public wealth resided in Congress, not in the Executive. 174 Moreover, leaving
the spending power of the Executive unrestricted would threaten to undo the principle of
separation of powers.175
Congress acts as the guardian of the public treasury in faithful discharge of its power of the
purse whenever it deliberates and acts on the budget proposal submitted by the Executive. 176 Its
power of the purse is touted as the very foundation of its institutional strength, 177 and underpins
"all other legislative decisions and regulating the balance of influence between the legislative
and executive branches of government."178 Such enormous power encompasses the capacity to
generate money for the Government, to appropriate public funds, and to spend the
money.179 Pertinently, when it exercises its power of the purse, Congress wields control by
specifying the PAPs for which public money should be spent.
It is the President who proposes the budget but it is Congress that has the final say on matters
of appropriations.180For this purpose, appropriation involves two governing principles, namely:
(1) "a Principle of the Public Fisc, asserting that all monies received from whatever source by
any part of the government are public funds;" and (2) "a Principle of Appropriations Control,
prohibiting expenditure of any public money without legislative authorization."181To conform with
the governing principles, the Executive cannot circumvent the prohibition by Congress of an
expenditure for a PAP by resorting to either public or private funds. 182 Nor could the Executive
transfer appropriated funds resulting in an increase in the budget for one PAP, for by so doing
the appropriation for another PAP is necessarily decreased. The terms of both appropriations
will thereby be violated.
b.4 Third Requisite – Cross-border
augmentations from savings were
prohibited by the Constitution
By providing that the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the Heads of the Constitutional
Commissions may be authorized to augment any item in the GAA "for their respective offices,"
Section 25(5), supra, has delineated borders between their offices, such that funds appropriated
for one office are prohibited from crossing over to another office even in the guise of
augmentation of a deficient item or items. Thus, we call such transfers of funds cross-border
transfers or cross-border augmentations.
To be sure, the phrase "respective offices" used in Section 25(5), supra, refers to the entire
Executive, with respect to the President; the Senate, with respect to the Senate President; the
House of Representatives, with respect to the Speaker; the Judiciary, with respect to the Chief
Justice; the Constitutional Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire?
During the oral arguments on January 28, 2014, Sec. Abad admitted making some cross-border
augmentations, to wit:
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of Department of Budget and Management,
did the Executive Department ever redirect any part of savings of the National Government
under your control cross border to another department?
SECRETARY ABAD:
Well, in the Memos that we submitted to you, such an instance, Your Honor
JUSTICE BERSAMIN:
Can you tell me two instances? I don’t recall having read your material.
SECRETARY ABAD:
Well, the first instance had to do with a request from the House of Representatives. They started
building their e-library in 2010 and they had a budget for about 207 Million but they lack about 43
Million to complete its 250 Million requirements. Prior to that, the COA, in an audit observation
informed the Speaker that they had to continue with that construction otherwise the whole
building, as well as the equipments therein may suffer from serious deterioration. And at that
time, since the budget of the House of Representatives was not enough to complete 250 Million,
they wrote to the President requesting for an augmentation of that particular item, which was
granted, Your Honor. The second instance in the Memos is a request from the Commission on
Audit. At the time they were pushing very strongly the good governance programs of the
government and therefore, part of that is a requirement to conduct audits as well as review
financial reports of many agencies. And in the performance of that function, the CommissionOFFICEon
Audit needed information technology equipment as well as hire consultants and litigators to help
them with their audit work and for that they requested funds from the Executive and the
President saw that it was important for the Commission to be provided with those IT equipments
and litigators and consultants and the request was granted, Your Honor.
Commission on
JUSTICE BERSAMIN: Audit
These cross border examples, cross border augmentations were not supported by
appropriations… Congress –
House of
SECRETARY ABAD: Representatives
They were, we were augmenting existing items within their… (interrupted)
JUSTICE BERSAMIN:
No, appropriations before you augmented because this is a cross border and the tenor or text of
the Constitution is quite clear as far as I am concerned. It says here, "The power to augment
may only be made to increase any item in the General Appropriations Law for their respective
offices." Did you not feel constricted by this provision?
SECRETARY ABAD:
Well, as the Constitution provides, the prohibition we felt was on the transfer of appropriations,
Your Honor. What we thought we did was to transfer savings which was needed by the
Commission to address deficiency in an existing item in both the Commission as well as in the
House of Representatives; that’s how we saw…(interrupted)
JUSTICE BERSAMIN:
So your position as Secretary of Budget is that you could do that?
SECRETARY ABAD:
In an extreme instances because…(interrupted)
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do that, that’s your feeling.
SECRETARY ABAD:
Well, in that particular situation when the request was made by the Commission and the House
of Representatives, we felt that we needed to respond because we felt…(interrupted). 183
The records show, indeed, that funds amounting to ₱143,700,000.00 and ₱250,000,000.00 were
transferred under the DAP respectively to the COA184 and the House of
Representatives.185 Those transfers of funds, which constituted cross-border augmentations for
being from the Executive to the COA and the House of Representatives, are graphed as
follows:186
AMOUNT
(In thousand pesos)
DATE
PURPOSE
RELEASED
Reserve Releas
Imposed
IT Infrastructure Program and hiring of additional 11/11/11 143,7
litigation experts
Completion of the construction of the Legislative Library 07/23/12 207,034 250,0
and Archives Building/Congressional e-library (Savings of HOR)
The respondents further stated in their memorandum that the President "made available" to the
"Commission on Elections the savings of his department upon [its] request for funds…" 187 This
was another instance of a cross-border augmentation.
The respondents justified all the cross-border transfers thusly:
99. The Constitution does not prevent the President from transferring savings of his department
to another department upon the latter’s request, provided it is the recipient department that uses
such funds to augment its own appropriation. In such a case, the President merely gives the
other department access to public funds but he cannot dictate how they shall be applied by that
department whose fiscal autonomy is guaranteed by the Constitution.188
In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza, representing
Congress, announced a different characterization of the cross-border transfers of funds as in the
nature of "aid" instead of "augmentation," viz:
HONORABLE MENDOZA:
The cross-border transfers, if Your Honors please, is not an application of the DAP. What were
these cross-border transfers? They are transfers of savings as defined in the various General
Appropriations Act. So, that makes it similar to the DAP, the use of savings. There was a cross-
border which appears to be in violation of Section 25, paragraph 5 of Article VI, in the sense that
the border was crossed. But never has it been claimed that the purpose was to augment a
deficient item in another department of the government or agency of the government. The cross-
border transfers, if Your Honors please, were in the nature of [aid] rather than augmentations.
Here is a government entity separate and independent from the Executive Department solely in
need of public funds. The President is there 24 hours a day, 7 days a week. He’s in charge of
the whole operation although six or seven heads of government offices are given the power to
augment. Only the President stationed there and in effect in-charge and has the responsibility for
the failure of any part of the government. You have election, for one reason or another, the
money is not enough to hold election. There would be chaos if no money is given as an aid, not But Counsel, this would be new doctrine, in case?
to augment, but as an aid to a department like COA. The President is responsible in a way that
the other heads, given the power to augment, are not. So, he cannot very well allow this, if Your HONORABLE MENDOZA:
Honor please.189
Yes, if Your Honor please.190
JUSTICE LEONEN:
Regardless of the variant characterizations of the cross-border transfers of funds, the plain text
May I move to another point, maybe just briefly. I am curious that the position now, I think, of of Section 25(5), supra, disallowing cross border transfers was disobeyed. Cross-border
government is that some transfers of savings is now considered to be, if I’m not mistaken, aid transfers, whether as augmentation, or as aid, were prohibited under Section 25(5), supra.
not augmentation. Am I correct in my hearing of your argument?
4.
HONORABLE MENDOZA: Sourcing the DAP from unprogrammed
funds despite the original revenue targets
That’s our submission, if Your Honor, please. not having been exceeded was invalid

JUSTICE LEONEN: Funding under the DAP were also sourced from unprogrammed funds provided in the GAAs for
2011, 2012,and 2013. The respondents stress, however, that the unprogrammed funds were not
May I know, Justice, where can we situate this in the text of the Constitution? Where do we brought under the DAP as savings, but as separate sources of funds; and that, consequently,
actually derive the concepts that transfers of appropriation from one branch to the other or what the release and use of unprogrammed funds were not subject to the restrictions under Section
happened in DAP can be considered a said? What particular text in the Constitution can we 25(5), supra.
situate this?
The documents contained in the Evidence Packets by the OSG have confirmed that the
HONORABLE MENDOZA: unprogrammed funds were treated as separate sources of funds. Even so, the release and use
of the unprogrammed funds were still subject to restrictions, for, to start with, the GAAs precisely
There is no particular provision or statutory provision for that matter, if Your Honor please. It is specified the instances when the unprogrammed funds could be released and the purposes for
drawn from the fact that the Executive is the executive in-charge of the success of the which they could be used.
government.
The petitioners point out that a condition for the release of the unprogrammed funds was that the
JUSTICE LEONEN: revenue collections must exceed revenue targets; and that the release of the unprogrammed
funds was illegal because such condition was not met.191
So, the residual powers labelled in Marcos v. Manglapus would be the basis for this theory of the
government? The respondents disagree, holding that the release and use of the unprogrammed funds under
the DAP were in accordance with the pertinent provisions of the GAAs. In particular, the DBM
HONORABLE MENDOZA: avers that the unprogrammed funds could be availed of when any of the following three
instances occur, to wit: (1) the revenue collections exceeded the original revenue targets
Yes, if Your Honor, please. proposed in the BESFs submitted by the President to Congress; (2) new revenues were
collected or realized from sources not originally considered in the BESFs; or(3) newly-approved
JUSTICE LEONEN: loans for foreign assisted projects were secured, or when conditions were triggered for other
sources of funds, such as perfected loan agreements for foreign-assisted projects.192 This view
of the DBM was adopted by all the respondents in their Consolidated Comment.193
A while ago, Justice Carpio mentioned that the remedy is might be to go to Congress. That there
are opportunities and there have been opportunities of the President to actually go to Congress
and ask for supplemental budgets? The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed appropriations" as
appropriations that provided standby authority to incur additional agency obligations for priority
PAPs when revenue collections exceeded targets, and when additional foreign funds are
HONORABLE MENDOZA:
generated.194 Contrary to the DBM’s averment that there were three instances when
unprogrammed funds could be released, the BESFs envisioned only two instances. The third
If there is time to do that, I would say yes. mentioned by the DBM – the collection of new revenues from sources not originally considered
in the BESFs – was not included. This meant that the collection of additional revenues from new
JUSTICE LEONEN: sources did not warrant the release of the unprogrammed funds. Hence, even if the revenues
not considered in the BESFs were collected or generated, the basic condition that the revenue
So, the theory of aid rather than augmentation applies in extra-ordinary situation? collections should exceed the revenue targets must still be complied with in order to justify the
release of the unprogrammed funds.
HONORABLE MENDOZA:
The view that there were only two instances when the unprogrammed funds could be released
Very extra-ordinary situations. was bolstered by the following texts of the Special Provisions of the 2011 and 2012 GAAs, to wit:

JUSTICE LEONEN: 2011 GAA

1. Release of Fund. The amounts authorized herein shall be released only when the revenue The present controversy on the unprogrammed funds was rooted in the correct interpretation of
collections exceed the original revenue targets submitted by the President of the Philippines to the phrase "revenue collections should exceed the original revenue targets." The petitioners take
Congress pursuant to Section 22, Article VII of the Constitution, including savings generated the phrase to mean that the total revenue collections must exceed the total revenue target stated
from programmed appropriations for the year: PROVIDED, That collections arising from sources in the BESF, but the respondents understand the phrase to refer only to the collections for each
not considered in the aforesaid original revenue targets may be used to cover releases from source of revenue as enumerated in the BESF, with the condition being deemed complied with
appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved loans for once the revenue collections from a particular source already exceeded the stated target.
foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be
sufficient basis for the issuance of a SARO covering the loan proceeds: PROVIDED, The BESF provided for the following sources of revenue, with the corresponding revenue target
FURTHERMORE, That if there are savings generated from the programmed appropriations for stated for each source of revenue, to wit:
the first two quarters of the year, the DBM may, subject to the approval of the President, release
the pertinent appropriations under the Unprogrammed Fund corresponding to only fifty percent TAX REVENUES
(50%) of the said savings net of revenue shortfall: PROVIDED, FINALLY, That the release of the
balance of the total savings from programmed appropriations for the year shall be subject to Taxes on Net Income and Profits
fiscal programming and approval of the President. Taxes on Property
Taxes on Domestic Goods and Services
2012 GAA
General Sales, Turnover or VAT
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue Selected Excises on Goods
collections exceed the original revenue targets submitted by the President of the Philippines to
Congress pursuant to Section 22, Article VII of the Constitution: PROVIDED, That collections Selected Taxes on Services
arising from sources not considered in the aforesaid original revenue targets may be used to Taxes on the Use of Goods or Property or Permission to Perform Activities
cover releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly Other Taxes
approved loans for foreign-assisted projects, the existence of a perfected loan agreement for the Taxes on International Trade and Transactions
purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds.
NON-TAX REVENUES
As can be noted, the provisos in both provisions to the effect that "collections arising from
sources not considered in the aforesaid original revenue targets may be used to cover releases Fees and Charges
from appropriations in this Fund" gave the authority to use such additional revenues for BTR Income
appropriations funded from the unprogrammed funds. They did not at all waive compliance with
the basic requirement that revenue collections must still exceed the original revenue targets.
Government Services
Interest on NG Deposits
In contrast, the texts of the provisos with regard to additional revenues generated from newly- Interest on Advances to Government Corporations
approved foreign loans were clear to the effect that the perfected loan agreement would be in Income from Investments
itself "sufficient basis" for the issuance of a SARO to release the funds but only to the extent of
the amount of the loan. In such instance, the revenue collections need not exceed the revenue
Interest on Bond Holdings
targets to warrant the release of the loan proceeds, and the mere perfection of the loan
agreement would suffice.
Guarantee Fee
Gain on Foreign Exchange
It can be inferred from the foregoing that under these provisions of the GAAs the additional
NG Income Collected by BTr
revenues from sources not considered in the BESFs must be taken into account in determining if
the revenue collections exceeded the revenue targets. The text of the relevant provision of the
Dividends on Stocks
2013 GAA, which was substantially similar to those of the GAAs for 2011 and 2012, already
NG Share from Airport Terminal Fee
made this explicit, thus:
NG Share from PAGCOR Income
NG Share from MIAA Profit
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue
collections exceed the original revenue targets submitted by the President of the Philippines to
Privatization
Congress pursuant to Section 22, Article VII of the Constitution, including collections arising from
Foreign Grants
sources not considered in the aforesaid original revenue target, as certified by the BTr:
PROVIDED, That in case of newly approved loans for foreign-assisted projects, the existence of
a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO Thus, when the Court required the respondents to submit a certification from the Bureau of
covering the loan proceeds. Treasury (BTr) to the effect that the revenue collections had exceeded the original revenue
targets,195 they complied by submitting certifications from the BTr and Department of Finance
(DOF) pertaining to only one identified source of revenue – the dividends from the shares of
Consequently, that there were additional revenues from sources not considered in the revenue
stock held by the Government in government-owned and controlled corporations.
target would not be enough. The total revenue collections must still exceed the original revenue
targets to justify the release of the unprogrammed funds (other than those from newly-approved
foreign loans). To justify the release of the unprogrammed funds for 2011, the OSG presented the certification
dated March 4, 2011 issued by DOF Undersecretary Gil S. Beltran, as follows:
This is to certify that under the Budget for Expenditures and Sources of Financing for 2011, the
programmed income from dividends from shares of stock in government-owned and controlled
corporations is 5.5 billion.
This is to certify further that based on the records of the Bureau of Treasury, the National
Government has recorded dividend income amounting to ₱23.8 billion as of 31 January 2011. 196
For 2012, the OSG submitted the certification dated April 26, 2012 issued by National Treasurer
Roberto B. Tan, viz:
This is to certify that the actual dividend collections remitted to the National Government for the
period January to March 2012 amounted to ₱19.419 billion compared to the full year program of
₱5.5 billion for 2012.197
And, finally, for 2013, the OSG presented the certification dated July 3, 2013 issued by National
Treasurer Rosalia V. De Leon, to wit:
This is to certify that the actual dividend collections remitted to the National Government for the
period January to May 2013 amounted to ₱12.438 billion compared to the full year program of
₱10.0198 billion for 2013.
Moreover, the National Government accounted for the sale of the right to build and operate the
NAIA expressway amounting to ₱11.0 billion in June 2013.199
The certifications reflected that by collecting dividends amounting to ₱23.8 billion in 2011,
₱19.419 billion in 2012, and ₱12.438 billion in 2013 the BTr had exceeded only the ₱5.5 billion
in target revenues in the form of dividends from stocks in each of 2011 and 2012, and only the
₱10 billion in target revenues in the form of dividends from stocks in 2013.
However, the requirement that revenue collections exceed the original revenue targets was to be
construed in light of the purpose for which the unprogrammed funds were incorporated in the
GAAs as standby appropriations to support additional expenditures for certain priority PAPs
should the revenue collections exceed the resource targets assumed in the budget or when
additional foreign project loan proceeds were realized. The unprogrammed funds were included
in the GAAs to provide ready cover so as not to delay the implementation of the PAPs should
new or additional revenue sources be realized during the year.200 Given the tenor of the
certifications, the unprogrammed funds were thus not yet supported by the corresponding
resources.201
The revenue targets stated in the BESF were intended to address the funding requirements of
the proposed programmed appropriations. In contrast, the unprogrammed funds, as standby
appropriations, were to be released only when there were revenues in excess of what the
programmed appropriations required. As such, the revenue targets should be considered as a
whole, not individually; otherwise, we would be dealing with artificial revenue surpluses. The
requirement that revenue collections must exceed revenue target should be understood to mean
that the revenue collections must exceed the total of the revenue targets stated in the BESF.
Moreover, to release the unprogrammed funds simply because there was an excess revenue as
to one source of revenue would be an unsound fiscal management measure because it would
disregard the budget plan and foster budget deficits, in contravention of the Government’s
surplus budget policy.202
We cannot, therefore, subscribe to the respondents’ view.
5.
Equal protection, checks and balances,
and public accountability challenges
The DAP is further challenged as violative of the Equal Protection Clause, the system of checks
and balances, and the principle of public accountability.
With respect to the challenge against the DAP under the Equal Protection Clause, 203 Luna
argues that the implementation of the DAP was "unfair as it [was] selective" because the funds
released under the DAP was not made available to all the legislators, with some of them refusing
to avail themselves of the DAP funds, and others being unaware of the availability of such funds.
Thus, the DAP practised "undue favoritism" in favor of select legislators in contravention of the
Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal Protection Clause because no
reasonable classification was used in distributing the funds under the DAP; and that the
Senators who supposedly availed themselves of said funds were differently treated as to the
amounts they respectively received.
Anent the petitioners’ theory that the DAP violated the system of checks and balances, Luna
submits that the grant of the funds under the DAP to some legislators forced their silence about
the issues and anomalies surrounding the DAP. Meanwhile, Belgica stresses that the DAP, by
allowing the legislators to identify PAPs, authorized them to take part in the implementation and
execution of the GAAs, a function that exclusively belonged to the Executive; that such situation
constituted undue and unjustified legislative encroachment in the functions of the Executive; and
that the President arrogated unto himself the power of appropriation vested in Congress
because NBC No. 541 authorized the use of the funds under the DAP for PAPs not considered
in the 2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the principle of public accountability
enshrined in the Constitution,204 because the legislators relinquished the power of appropriation
to the Executive, and exhibited a reluctance to inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination in the release of
funds under the DAP could be raised only by the affected Members of Congress themselves,
and if the challenge based on the violation of the Equal Protection Clause was really against the
constitutionality of the DAP, the arguments of the petitioners should be directed to the
entitlement of the legislators to the funds, not to the proposition that all of the legislators should
have been given such entitlement.
The challenge based on the contravention of the Equal Protection Clause, which focuses on the
release of funds under the DAP to legislators, lacks factual and legal basis. The allegations
about Senators and Congressmen being unaware of the existence and implementation of the
DAP, and about some of them having refused to accept such funds were unsupported with
relevant data. Also, the claim that the Executive discriminated against some legislators on the
ground alone of their receiving less than the others could not of itself warrant a finding of
contravention of the Equal Protection Clause. The denial of equal protection of any law should
be an issue to be raised only by parties who supposedly suffer it, and, in these cases, such
parties would be the few legislators claimed to have been discriminated against in the releases
of funds under the DAP. The reason for the requirement is that only such affected legislators
could properly and fully bring to the fore when and how the denial of equal protection occurred,
and explain why there was a denial in their situation. The requirement was not met here.
Consequently, the Court was not put in the position to determine if there was a denial of equal
protection. To have the Court do so despite the inadequacy of the showing of factual and legal
support would be to compel it to speculate, and the outcome would not do justice to those for
whose supposed benefit the claim of denial of equal protection has been made.
The argument that the release of funds under the DAP effectively stayed the hands of the
legislators from conducting congressional inquiries into the legality and propriety of the DAP is
speculative. That deficiency eliminated any need to consider and resolve the argument, for it is
fundamental that speculation would not support any proper judicial determination of an issue
simply because nothing concrete can thereby be gained. In order to sustain their constitutional
challenges against official acts of the Government, the petitioners must discharge the basic
burden of proving that the constitutional infirmities actually existed. 205 Simply put, guesswork and
speculation cannot overcome the presumption of the constitutionality of the assailed executive
act.
We do not need to discuss whether or not the DAP and its implementation through the various
circulars and memoranda of the DBM transgressed the system of checks and balances in place
in our constitutional system. Our earlier expositions on the DAP and its implementing issuances
infringing the doctrine of separation of powers effectively addressed this particular concern.
Anent the principle of public accountability being transgressed because the adoption and
implementation of the DAP constituted an assumption by the Executive of Congress’ power of
appropriation, we have already held that the DAP and its implementing issuances were policies
and acts that the Executive could properly adopt and do in the execution of the GAAs to the
extent that they sought to implement strategies to ramp up or accelerate the economy of the
country.
6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances constitutionally infirm, we must now deal
with the consequences of the declaration.
Article 7 of the Civil Code provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the Constitution, the former shall be void
and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution.
A legislative or executive act that is declared void for being unconstitutional cannot give rise to
any right or obligation.206 However, the generality of the rule makes us ponder whether rigidly
applying the rule may at times be impracticable or wasteful. Should we not recognize the need to
except from the rigid application of the rule the instances in which the void law or executive act
produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine, definitely not a novel one,
has been exhaustively explained in De Agbayani v. Philippine National Bank:207
The decision now on appeal reflects the orthodox view that an unconstitutional act, for that
matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot
be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially declared results in its being to all intents and
purposes a mere scrap of paper. As the new Civil Code puts it: ‘When the courts declare a law
to be inconsistent with the Constitution, the former shall be void and the latter shall govern.’
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws of the Constitution. It is understandable why it should be so, the Constitution
being supreme and paramount. Any legislative or executive act contrary to its terms cannot
survive.
Such a view has support in logic and possesses the merit of simplicity. It may not however be
sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such
challenged legislative or executive act must have been in force and had to be complied with.
This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to
obedience and respect. Parties may have acted under it and may have changed their positions.
What could be more fitting than that in a subsequent litigation regard be had to what has been
done while such legislative or executive act was in operation and presumed to be valid in all
respects. It is now accepted as a doctrine that prior to its being nullified, its existence as a fact
must be reckoned with. This is merely to reflect awareness that precisely because the judiciary
is the governmental organ which has the final say on whether or not a legislative or executive
measure is valid, a period of time may have elapsed before it can exercise the power of judicial
review that may lead to a declaration of nullity. It would be to deprive the law of its quality of
fairness and justice then, if there be no recognition of what had transpired prior to such
adjudication.
In the language of an American Supreme Court decision: ‘The actual existence of a statute, prior
to such a determination [of unconstitutionality], is an operative fact and may have consequences
which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may have to be considered in various
aspects, with respect to particular relations, individual and corporate, and particular conduct,
private and official.’"
The doctrine of operative fact recognizes the existence of the law or executive act prior to the
determination of its unconstitutionality as an operative fact that produced consequences that
cannot always be erased, ignored or disregarded. In short, it nullifies the void law or executive
act but sustains its effects. It provides an exception to the general rule that a void or
unconstitutional law produces no effect.208 But its use must be subjected to great scrutiny and
circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but
is resorted to only as a matter of equity and fair play. 209 It applies only to cases where
extraordinary circumstances exist, and only when the extraordinary circumstances have met the
stringent conditions that will permit its application.
We find the doctrine of operative fact applicable to the adoption and implementation of the DAP.
Its application to the DAP proceeds from equity and fair play. The consequences resulting from
the DAP and its related issuances could not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional executive act.
The term executive act is broad enough to include any and all acts of the Executive, including
those that are quasi legislative and quasi-judicial in nature. The Court held so in Hacienda
Luisita, Inc. v. Presidential Agrarian Reform Council:210
Nonetheless, the minority is of the persistent view that the applicability of the operative fact
doctrine should be limited to statutes and rules and regulations issued by the executive
department that are accorded the same status as that of a statute or those which are quasi-
legislative in nature. Thus, the minority concludes that the phrase ‘executive act’ used in the
case of De Agbayani v. Philippine National Bank refers only to acts, orders, and rules and
regulations that have the force and effect of law. The minority also made mention of the
Concurring Opinion of Justice Enrique Fernando in Municipality of Malabang v. Benito, where it
was supposedly made explicit that the operative fact doctrine applies to executive acts, which
are ultimately quasi-legislative in nature.
We disagree. For one, neither the De Agbayani case nor the Municipality of Malabang case
elaborates what ‘executive act’ mean. Moreover, while orders, rules and regulations issued by
the President or the executive branch have fixed definitions and meaning in the Administrative
Code and jurisprudence, the phrase ‘executive act’ does not have such specific definition under
existing laws. It should be noted that in the cases cited by the minority, nowhere can it be found
that the term ‘executive act’ is confined to the foregoing. Contrarily, the term ‘executive act’ is
broad enough to encompass decisions of administrative bodies and agencies under the
executive department which are subsequently revoked by the agency in question or nullified by
the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma) as Chairman of the
Presidential Commission on Good Government (PCGG) and as Chief Presidential Legal
Counsel (CPLC) which was declared unconstitutional by this Court in Public Interest Center, Inc.
v. Elma. In said case, this Court ruled that the concurrent appointment of Elma to these offices is
in violation of Section 7, par. 2, Article IX-B of the 1987 Constitution, since these are
incompatible offices. Notably, the appointment of Elma as Chairman of the PCGG and as CPLC
is, without a question, an executive act. Prior to the declaration of unconstitutionality of the said
executive act, certain acts or transactions were made in good faith and in reliance of the
appointment of Elma which cannot just be set aside or invalidated by its subsequent invalidation.
In Tan v. Barrios, this Court, in applying the operative fact doctrine, held that despite the
invalidity of the jurisdiction of the military courts over civilians, certain operative facts must be
acknowledged to have existed so as not to trample upon the rights of the accused therein.
Relevant thereto, in Olaguer v. Military Commission No. 34, it was ruled that ‘military tribunals
pertain to the Executive Department of the Government and are simply instrumentalities of the
executive power, provided by the legislature for the President as Commander-in-Chief to aid him
in properly commanding the army and navy and enforcing discipline therein, and utilized under
his orders or those of his authorized military representatives.’
Evidently, the operative fact doctrine is not confined to statutes and rules and regulations issued
by the executive department that are accorded the same status as that of a statute or those
which are quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative fact doctrine only to executive
issuances like orders and rules and regulations, said principle can nonetheless be applied, by
analogy, to decisions made by the President or the agencies under the executive department.
This doctrine, in the interest of justice and equity, can be applied liberally and in a broad sense
to encompass said decisions of the executive branch. In keeping with the demands of equity, the
Court can apply the operative fact doctrine to acts and consequences that resulted from the
reliance not only on a law or executive act which is quasi-legislative in nature but also on
decisions or orders of the executive branch which were later nullified. This Court is not unmindful
that such acts and consequences must be recognized in the higher interest of justice, equity and
fairness.
Significantly, a decision made by the President or the administrative agencies has to be
complied with because it has the force and effect of law, springing from the powers of the
President under the Constitution and existing laws. Prior to the nullification or recall of said
decision, it may have produced acts and consequences in conformity to and in reliance of said
decision, which must be respected. It is on this score that the operative fact doctrine should be
applied to acts and consequences that resulted from the implementation of the PARC Resolution
approving the SDP of HLI. (Bold underscoring supplied for emphasis)
In Commissioner of Internal Revenue v. San Roque Power Corporation, 211 the Court likewise
declared that "for the operative fact doctrine to apply, there must be a ‘legislative or executive
measure,’ meaning a law or executive issuance." Thus, the Court opined there that the operative
fact doctrine did not apply to a mere administrative practice of the Bureau of Internal Revenue,
viz:
Under Section 246, taxpayers may rely upon a rule or ruling issued by the Commissioner from
the time the rule or ruling is issued up to its reversal by the Commissioner or this Court. The
reversal is not given retroactive effect. This, in essence, is the doctrine of operative fact. There
must, however, be a rule or ruling issued by the Commissioner that is relied upon by the
taxpayer in good faith. A mere administrative practice, not formalized into a rule or ruling, will not
suffice because such a mere administrative practice may not be uniformly and consistently
applied. An administrative practice, if not formalized as a rule or ruling, will not be known to the
general public and can be availed of only by those with informal contacts with the government
agency.
It is clear from the foregoing that the adoption and the implementation of the DAP and its related
issuances were executive acts.1avvphi1 The DAP itself, as a policy, transcended a merely
administrative practice especially after the Executive, through the DBM, implemented it by
issuing various memoranda and circulars. The pooling of savings pursuant to the DAP from the
allotments made available to the different agencies and departments was consistently applied
throughout the entire Executive. With the Executive, through the DBM, being in charge of the
third phase of the budget cycle – the budget execution phase, the President could legitimately
adopt a policy like the DAP by virtue of his primary responsibility as the Chief Executive of
directing the national economy towards growth and development. This is simply because
savings could and should be determined only during the budget execution phase.
As already mentioned, the implementation of the DAP resulted into the use of savings pooled by
the Executive to finance the PAPs that were not covered in the GAA, or that did not have proper
appropriation covers, as well as to augment items pertaining to other departments of the
Government in clear violation of the Constitution. To declare the implementation of the DAP
unconstitutional without recognizing that its prior implementation constituted an operative fact
that produced consequences in the real as well as juristic worlds of the Government and the
Nation is to be impractical and unfair. Unless the doctrine is held to apply, the Executive as the
disburser and the offices under it and elsewhere as the recipients could be required to undo
everything that they had implemented in good faith under the DAP. That scenario would be
enormously burdensome for the Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as to be beyond debate that the
implementation of the DAP yielded undeniably positive results that enhanced the economic
welfare of the country. To count the positive results may be impossible, but the visible ones, like
public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals,
classrooms and the like. Not to apply the doctrine of operative fact to the DAP could literally
cause the physical undoing of such worthy results by destruction, and would result in most
undesirable wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative
fact does not always apply, and is not always the consequence of every declaration of
constitutional invalidity. It can be invoked only in situations where the nullification of the effects of
what used to be a valid law would result in inequity and injustice; 212but where no such result
would ensue, the general rule that an unconstitutional law is totally ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the
PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity
of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless
there are concrete findings of good faith in their favor by the proper tribunals determining their
criminal, civil, administrative and other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and
DECLARES the following acts and practices under the Disbursement Acceleration Program,
National Budget Circular No. 541 and related executive issuances UNCONSTITUTIONAL for
being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of
separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the
declaration of the withdrawn unobligated allotments and unreleased appropriations as
savings prior to the end of the fiscal year and without complying with the statutory
definition of savings contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the
appropriations of other offices outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by any
appropriation in the General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a
certification by the National Treasurer that the revenue collections exceeded the revenue targets
for non-compliance with the conditions provided in the relevant General Appropriations Acts.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
EN BANC
G.R. No. 168056 September 1, 2005
ABAKADA GURO PARTY LIST (Formerly AASJAS) OFFICERS SAMSON S. ALCANTARA
and ED VINCENT S. ALBANO, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY EDUARDO ERMITA; HONORABLE
SECRETARY OF THE DEPARTMENT OF FINANCE CESAR PURISIMA; and HONORABLE
COMMISSIONER OF INTERNAL REVENUE GUILLERMO PARAYNO, JR., Respondent.
x-------------------------x
G.R. No. 168207
AQUILINO Q. PIMENTEL, JR., LUISA P. EJERCITO-ESTRADA, JINGGOY E. ESTRADA,
PANFILO M. LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL, AND SERGIO R.
OSMEÑA III, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, CESAR V. PURISIMA, SECRETARY OF
FINANCE, GUILLERMO L. PARAYNO, JR., COMMISSIONER OF THE BUREAU OF
INTERNAL REVENUE, Respondent.
x-------------------------x
G.R. No. 168461
ASSOCIATION OF PILIPINAS SHELL DEALERS, INC. represented by its President, ROSARIO
ANTONIO; PETRON DEALERS’ ASSOCIATION represented by its President, RUTH E.
BARBIBI; ASSOCIATION OF CALTEX DEALERS’ OF THE PHILIPPINES represented by its
President, MERCEDITAS A. GARCIA; ROSARIO ANTONIO doing business under the name
and style of "ANB NORTH SHELL SERVICE STATION"; LOURDES MARTINEZ doing business
under the name and style of "SHELL GATE – N. DOMINGO"; BETHZAIDA TAN doing business
under the name and style of "ADVANCE SHELL STATION"; REYNALDO P. MONTOYA doing
business under the name and style of "NEW LAMUAN SHELL SERVICE STATION"; EFREN
SOTTO doing business under the name and style of "RED FIELD SHELL SERVICE STATION";
DONICA CORPORATION represented by its President, DESI TOMACRUZ; RUTH E. MARBIBI
doing business under the name and style of "R&R PETRON STATION"; PETER M. UNGSON
doing business under the name and style of "CLASSIC STAR GASOLINE SERVICE STATION";
MARIAN SHEILA A. LEE doing business under the name and style of "NTE GASOLINE &
SERVICE STATION"; JULIAN CESAR P. POSADAS doing business under the name and style
of "STARCARGA ENTERPRISES"; ADORACION MAÑEBO doing business under the name
and style of "CMA MOTORISTS CENTER"; SUSAN M. ENTRATA doing business under the
name and style of "LEONA’S GASOLINE STATION and SERVICE CENTER"; CARMELITA
BALDONADO doing business under the name and style of "FIRST CHOICE SERVICE
CENTER"; MERCEDITAS A. GARCIA doing business under the name and style of "LORPED
SERVICE CENTER"; RHEAMAR A. RAMOS doing business under the name and style of
"RJRAM PTT GAS STATION"; MA. ISABEL VIOLAGO doing business under the name and style
of "VIOLAGO-PTT SERVICE CENTER"; MOTORISTS’ HEART CORPORATION represented by
its Vice-President for Operations, JOSELITO F. FLORDELIZA; MOTORISTS’ HARVARD
CORPORATION represented by its Vice-President for Operations, JOSELITO F. FLORDELIZA;
MOTORISTS’ HERITAGE CORPORATION represented by its Vice-President for Operations,
JOSELITO F. FLORDELIZA; PHILIPPINE STANDARD OIL CORPORATION represented by its
Vice-President for Operations, JOSELITO F. FLORDELIZA; ROMEO MANUEL doing business
under the name and style of "ROMMAN GASOLINE STATION"; ANTHONY ALBERT CRUZ III
doing business under the name and style of "TRUE SERVICE STATION", Petitioners,
vs.
CESAR V. PURISIMA, in his capacity as Secretary of the Department of Finance and
GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of Internal
Revenue, Respondent.
x-------------------------x
G.R. No. 168463
FRANCIS JOSEPH G. ESCUDERO, VINCENT CRISOLOGO, EMMANUEL JOEL J.
VILLANUEVA, RODOLFO G. PLAZA, DARLENE ANTONINO-CUSTODIO, OSCAR G.
MALAPITAN, BENJAMIN C. AGARAO, JR. JUAN EDGARDO M. ANGARA, JUSTIN MARC SB.
CHIPECO, FLORENCIO G. NOEL, MUJIV S. HATAMAN, RENATO B. MAGTUBO, JOSEPH A.
SANTIAGO, TEOFISTO DL. GUINGONA III, RUY ELIAS C. LOPEZ, RODOLFO Q. AGBAYANI
and TEODORO A. CASIÑO, Petitioners,
vs.
CESAR V. PURISIMA, in his capacity as Secretary of Finance, GUILLERMO L. PARAYNO,
JR., in his capacity as Commissioner of Internal Revenue, and EDUARDO R. ERMITA, in
his capacity as Executive Secretary,Respondent.
x-------------------------x
G.R. No. 168730
BATAAN GOVERNOR ENRIQUE T. GARCIA, JR. Petitioner,
vs.
HON. EDUARDO R. ERMITA, in his capacity as the Executive Secretary; HON. MARGARITO
TEVES, in his capacity as Secretary of Finance; HON. JOSE MARIO BUNAG, in his capacity as
the OIC Commissioner of the Bureau of Internal Revenue; and HON. ALEXANDER AREVALO,
in his capacity as the OIC Commissioner of the Bureau of Customs, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
The expenses of government, having for their object the interest of all, should be borne by
everyone, and the more man enjoys the advantages of society, the more he ought to hold
himself honored in contributing to those expenses.
-Anne Robert Jacques Turgot (1727-1781)
French statesman and economist
Mounting budget deficit, revenue generation, inadequate fiscal allocation for education,
increased emoluments for health workers, and wider coverage for full value-added tax benefits
… these are the reasons why Republic Act No. 9337 (R.A. No. 9337)1 was enacted. Reasons,
the wisdom of which, the Court even with its extensive constitutional power of review, cannot
probe. The petitioners in these cases, however, question not only the wisdom of the law, but
also perceived constitutional infirmities in its passage.
Every law enjoys in its favor the presumption of constitutionality. Their arguments
notwithstanding, petitioners failed to justify their call for the invalidity of the law. Hence, R.A. No.
9337 is not unconstitutional.
LEGISLATIVE HISTORY
R.A. No. 9337 is a consolidation of three legislative bills namely, House Bill Nos. 3555 and 3705,
and Senate Bill No. 1950.
House Bill No. 35552 was introduced on first reading on January 7, 2005. The House
Committee on Ways and Means approved the bill, in substitution of House Bill No. 1468, which
Representative (Rep.) Eric D. Singson introduced on August 8, 2004. The President certified the
bill on January 7, 2005 for immediate enactment. On January 27, 2005, the House of
Representatives approved the bill on second and third reading.
House Bill No. 37053 on the other hand, substituted House Bill No. 3105 introduced by Rep.
Salacnib F. Baterina, and House Bill No. 3381 introduced by Rep. Jacinto V. Paras. Its "mother
bill" is House Bill No. 3555. The House Committee on Ways and Means approved the bill on
February 2, 2005. The President also certified it as urgent on February 8, 2005. The House of
Representatives approved the bill on second and third reading on February 28, 2005.
Meanwhile, the Senate Committee on Ways and Means approved Senate Bill No. 19504 on
March 7, 2005, "in substitution of Senate Bill Nos. 1337, 1838 and 1873, taking into
consideration House Bill Nos. 3555 and 3705." Senator Ralph G. Recto sponsored Senate Bill
No. 1337, while Senate Bill Nos. 1838 and 1873 were both sponsored by Sens. Franklin M.
Drilon, Juan M. Flavier and Francis N. Pangilinan. The President certified the bill on March 11,
2005, and was approved by the Senate on second and third reading on April 13, 2005.
On the same date, April 13, 2005, the Senate agreed to the request of the House of
Representatives for a committee conference on the disagreeing provisions of the proposed bills.
Before long, the Conference Committee on the Disagreeing Provisions of House Bill No. 3555,
House Bill No. 3705, and Senate Bill No. 1950, "after having met and discussed in full free and
conference," recommended the approval of its report, which the Senate did on May 10, 2005,
and with the House of Representatives agreeing thereto the next day, May 11, 2005.
On May 23, 2005, the enrolled copy of the consolidated House and Senate version was
transmitted to the President, who signed the same into law on May 24, 2005. Thus, came R.A.
No. 9337.
5
July 1, 2005 is the effectivity date of R.A. No. 9337. When said date came, the Court issued a
temporary restraining order, effective immediately and continuing until further orders, enjoining
respondents from enforcing and implementing the law.
Oral arguments were held on July 14, 2005. Significantly, during the hearing, the Court speaking
through Mr. Justice Artemio V. Panganiban, voiced the rationale for its issuance of the
temporary restraining order on July 1, 2005, to wit:
J. PANGANIBAN : . . . But before I go into the details of your presentation, let me just tell you a
little background. You know when the law took effect on July 1, 2005, the Court issued a TRO at
about 5 o’clock in the afternoon. But before that, there was a lot of complaints aired on television
and on radio. Some people in a gas station were complaining that the gas prices went up by
10%. Some people were complaining that their electric bill will go up by 10%. Other times people
riding in domestic air carrier were complaining that the prices that they’ll have to pay would have
to go up by 10%. While all that was being aired, per your presentation and per our own
understanding of the law, that’s not true. It’s not true that the e-vat law necessarily increased
prices by 10% uniformly isn’t it?
ATTY. BANIQUED : No, Your Honor.
J. PANGANIBAN : It is not?
ATTY. BANIQUED : It’s not, because, Your Honor, there is an Executive Order that granted the
Petroleum companies some subsidy . . . interrupted
J. PANGANIBAN : That’s correct . . .
ATTY. BANIQUED : . . . and therefore that was meant to temper the impact . . . interrupted
J. PANGANIBAN : . . . mitigating measures . . .
ATTY. BANIQUED : Yes, Your Honor.
J. PANGANIBAN : As a matter of fact a part of the mitigating measures would be the elimination
of the Excise Tax and the import duties. That is why, it is not correct to say that the VAT as to
petroleum dealers increased prices by 10%.
ATTY. BANIQUED : Yes, Your Honor.
J. PANGANIBAN : And therefore, there is no justification for increasing the retail price by 10% to
cover the E-Vat tax. If you consider the excise tax and the import duties, the Net Tax would
probably be in the neighborhood of 7%? We are not going into exact figures I am just trying to
deliver a point that different industries, different products, different services are hit differently. So
it’s not correct to say that all prices must go up by 10%.
ATTY. BANIQUED : You’re right, Your Honor.
J. PANGANIBAN : Now. For instance, Domestic Airline companies, Mr. Counsel, are at present
imposed a Sales Tax of 3%. When this E-Vat law took effect the Sales Tax was also removed as
a mitigating measure. So, therefore, there is no justification to increase the fares by 10% at best
7%, correct?
ATTY. BANIQUED : I guess so, Your Honor, yes.
J. PANGANIBAN : There are other products that the people were complaining on that first day,
were being increased arbitrarily by 10%. And that’s one reason among many others this Court
had to issue TRO because of the confusion in the implementation. That’s why we added as an
issue in this case, even if it’s tangentially taken up by the pleadings of the parties, the confusion
in the implementation of the E-vat. Our people were subjected to the mercy of that confusion of
an across the board increase of 10%, which you yourself now admit and I think even the
Government will admit is incorrect. In some cases, it should be 3% only, in some cases it should
be 6% depending on these mitigating measures and the location and situation of each product,
of each service, of each company, isn’t it?
ATTY. BANIQUED : Yes, Your Honor.
J. PANGANIBAN : Alright. So that’s one reason why we had to issue a TRO pending the
clarification of all these and we wish the government will take time to clarify all these by means
of a more detailed implementing rules, in case the law is upheld by this Court. . . . 6
The Court also directed the parties to file their respective Memoranda.
G.R. No. 168056
Before R.A. No. 9337 took effect, petitioners ABAKADA GURO Party List, et al., filed a petition
for prohibition on May 27, 2005. They question the constitutionality of Sections 4, 5 and 6 of R.A.
No. 9337, amending Sections 106, 107 and 108, respectively, of the National Internal Revenue
Code (NIRC). Section 4 imposes a 10% VAT on sale of goods and properties, Section 5
imposes a 10% VAT on importation of goods, and Section 6 imposes a 10% VAT on sale of
services and use or lease of properties. These questioned provisions contain a
uniform proviso authorizing the President, upon recommendation of the Secretary of Finance, to
raise the VAT rate to 12%, effective January 1, 2006, after any of the following conditions have
been satisfied, to wit:
. . . That the President, upon the recommendation of the Secretary of Finance, shall, effective
January 1, 2006, raise the rate of value-added tax to twelve percent (12%), after any of the
following conditions has been satisfied:
(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2 4/5%); or
(ii) National government deficit as a percentage of GDP of the previous year exceeds one and
one-half percent (1 ½%).
Petitioners argue that the law is unconstitutional, as it constitutes abandonment by Congress of
its exclusive authority to fix the rate of taxes under Article VI, Section 28(2) of the 1987
Philippine Constitution.
G.R. No. 168207
On June 9, 2005, Sen. Aquilino Q. Pimentel, Jr., et al., filed a petition for certiorari likewise
assailing the constitutionality of Sections 4, 5 and 6 of R.A. No. 9337.
Aside from questioning the so-called stand-by authority of the President to increase the VAT rate
to 12%, on the ground that it amounts to an undue delegation of legislative power, petitioners
also contend that the increase in the VAT rate to 12% contingent on any of the two conditions
being satisfied violates the due process clause embodied in Article III, Section 1 of the
Constitution, as it imposes an unfair and additional tax burden on the people, in that: (1) the 12%
increase is ambiguous because it does not state if the rate would be returned to the original 10%
if the conditions are no longer satisfied; (2) the rate is unfair and unreasonable, as the people
are unsure of the applicable VAT rate from year to year; and (3) the increase in the VAT rate,
which is supposed to be an incentive to the President to raise the VAT collection to at least
2 4/5 of the GDP of the previous year, should only be based on fiscal adequacy.
Petitioners further claim that the inclusion of a stand-by authority granted to the President by the
Bicameral Conference Committee is a violation of the "no-amendment rule" upon last reading of
a bill laid down in Article VI, Section 26(2) of the Constitution.
G.R. No. 168461
Thereafter, a petition for prohibition was filed on June 29, 2005, by the Association
of Pilipinas Shell Dealers, Inc., et al., assailing the following provisions of R.A. No. 9337:
1) Section 8, amending Section 110 (A)(2) of the NIRC, requiring that the input tax on
depreciable goods shall be amortized over a 60-month period, if the acquisition, excluding the
VAT components, exceeds One Million Pesos (₱1, 000,000.00);
2) Section 8, amending Section 110 (B) of the NIRC, imposing a 70% limit on the amount of
input tax to be credited against the output tax; and
3) Section 12, amending Section 114 (c) of the NIRC, authorizing the Government or any of its
political subdivisions, instrumentalities or agencies, including GOCCs, to deduct a 5% final
withholding tax on gross payments of goods and services, which are subject to 10% VAT under
Sections 106 (sale of goods and properties) and 108 (sale of services and use or lease of
properties) of the NIRC.
Petitioners contend that these provisions are unconstitutional for being arbitrary, oppressive,
excessive, and confiscatory.
Petitioners’ argument is premised on the constitutional right of non-deprivation of life, liberty or
property without due process of law under Article III, Section 1 of the Constitution. According to
petitioners, the contested sections impose limitations on the amount of input tax that may be
claimed. Petitioners also argue that the input tax partakes the nature of a property that may not
be confiscated, appropriated, or limited without due process of law. Petitioners further contend
that like any other property or property right, the input tax credit may be transferred or disposed
of, and that by limiting the same, the government gets to tax a profit or value-added even if there
is no profit or value-added.
Petitioners also believe that these provisions violate the constitutional guarantee of equal
protection of the law under Article III, Section 1 of the Constitution, as the limitation on the
creditable input tax if: (1) the entity has a high ratio of input tax; or (2) invests in capital
equipment; or (3) has several transactions with the government, is not based on real and
substantial differences to meet a valid classification.
Lastly, petitioners contend that the 70% limit is anything but progressive, violative of Article VI,
Section 28(1) of the Constitution, and that it is the smaller businesses with higher input tax to
output tax ratio that will suffer the consequences thereof for it wipes out whatever meager
margins the petitioners make.
G.R. No. 168463
Several members of the House of Representatives led by Rep. Francis Joseph G. Escudero filed
this petition for certiorari on June 30, 2005. They question the constitutionality of R.A. No. 9337
on the following grounds:
1) Sections 4, 5, and 6 of R.A. No. 9337 constitute an undue delegation of legislative power, in
violation of Article VI, Section 28(2) of the Constitution;
2) The Bicameral Conference Committee acted without jurisdiction in deleting the no pass
on provisions present in Senate Bill No. 1950 and House Bill No. 3705; and
3) Insertion by the Bicameral Conference Committee of Sections 27, 28, 34, 116, 117, 119, 121,
125,7 148, 151, 236, 237 and 288, which were present in Senate Bill No. 1950, violates Article
VI, Section 24(1) of the Constitution, which provides that all appropriation, revenue or tariff bills
shall originate exclusively in the House of Representatives
G.R. No. 168730
On the eleventh hour, Governor Enrique T. Garcia filed a petition for certiorari and prohibition on
July 20, 2005, alleging unconstitutionality of the law on the ground that the limitation on the
creditable input tax in effect allows VAT-registered establishments to retain a portion of the taxes
they collect, thus violating the principle that tax collection and revenue should be solely allocated
for public purposes and expenditures. Petitioner Garcia further claims that allowing these
establishments to pass on the tax to the consumers is inequitable, in violation of Article VI,
Section 28(1) of the Constitution.
RESPONDENTS’ COMMENT
The Office of the Solicitor General (OSG) filed a Comment in behalf of respondents.
Preliminarily, respondents contend that R.A. No. 9337 enjoys the presumption of constitutionality
and petitioners failed to cast doubt on its validity.
Relying on the case of Tolentino vs. Secretary of Finance, 235 SCRA
630 (1994), respondents argue that the procedural issues raised by petitioners, i.e., legality of
the bicameral proceedings, exclusive origination of revenue measures and the power of the
Senate concomitant thereto, have already been settled. With regard to the issue of undue
delegation of legislative power to the President, respondents contend that the law is complete
and leaves no discretion to the President but to increase the rate to 12% once any of the two
conditions provided therein arise.
Respondents also refute petitioners’ argument that the increase to 12%, as well as the 70%
limitation on the creditable input tax, the 60-month amortization on the purchase or importation
of capital goods exceeding ₱1,000,000.00, and the 5% final withholding tax by government
agencies, is arbitrary, oppressive, and confiscatory, and that it violates the constitutional
principle on progressive taxation, among others.
Finally, respondents manifest that R.A. No. 9337 is the anchor of the government’s fiscal reform
agenda. A reform in the value-added system of taxation is the core revenue measure that will tilt
the balance towards a sustainable macroeconomic environment necessary for economic growth.
ISSUES
The Court defined the issues, as follows:
PROCEDURAL ISSUE
Whether R.A. No. 9337 violates the following provisions of the Constitution:
a. Article VI, Section 24, and
b. Article VI, Section 26(2)
SUBSTANTIVE ISSUES
1. Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the
NIRC, violate the following provisions of the Constitution:
a. Article VI, Section 28(1), and
b. Article VI, Section 28(2)
2. Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC;
and Section 12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following
provisions of the Constitution:
a. Article VI, Section 28(1), and
b. Article III, Section 1
RULING OF THE COURT
As a prelude, the Court deems it apt to restate the general principles and concepts of value-
added tax (VAT), as the confusion and inevitably, litigation, breeds from a fallacious notion of its
nature.
The VAT is a tax on spending or consumption. It is levied on the sale, barter, exchange or lease
of goods or properties and services.8 Being an indirect tax on expenditure, the seller of goods or
services may pass on the amount of tax paid to the buyer,9 with the seller acting merely as a tax
collector.10 The burden of VAT is intended to fall on the immediate buyers and ultimately, the
end-consumers.
In contrast, a direct tax is a tax for which a taxpayer is directly liable on the transaction or
business it engages in, without transferring the burden to someone else. 11 Examples are
individual and corporate income taxes, transfer taxes, and residence taxes.12
In the Philippines, the value-added system of sales taxation has long been in existence, albeit in
a different mode. Prior to 1978, the system was a single-stage tax computed under the "cost
deduction method" and was payable only by the original sellers. The single-stage system was
subsequently modified, and a mixture of the "cost deduction method" and "tax credit method"
was used to determine the value-added tax payable.13 Under the "tax credit method," an entity
can credit against or subtract from the VAT charged on its sales or outputs the VAT paid on its
purchases, inputs and imports.14
It was only in 1987, when President Corazon C. Aquino issued Executive Order No. 273, that the
VAT system was rationalized by imposing a multi-stage tax rate of 0% or 10% on all sales using
the "tax credit method."15
E.O. No. 273 was followed by R.A. No. 7716 or the Expanded VAT Law,16 R.A. No. 8241 or the
Improved VAT Law,17 R.A. No. 8424 or the Tax Reform Act of 1997,18 and finally, the presently
beleaguered R.A. No. 9337, also referred to by respondents as the VAT Reform Act.
The Court will now discuss the issues in logical sequence.
PROCEDURAL ISSUE
I.
Whether R.A. No. 9337 violates the following provisions of the Constitution:
a. Article VI, Section 24, and
b. Article VI, Section 26(2)
A. The Bicameral Conference Committee
Petitioners Escudero, et al., and Pimentel, et al., allege that the Bicameral Conference
Committee exceeded its authority by:
1) Inserting the stand-by authority in favor of the President in Sections 4, 5, and 6 of R.A. No.
9337;
2) Deleting entirely the no pass-on provisions found in both the House and Senate bills;
3) Inserting the provision imposing a 70% limit on the amount of input tax to be credited against
the output tax; and
4) Including the amendments introduced only by Senate Bill No. 1950 regarding other kinds of
taxes in addition to the value-added tax.
Petitioners now beseech the Court to define the powers of the Bicameral Conference
Committee.
It should be borne in mind that the power of internal regulation and discipline are intrinsic in any
legislative body for, as unerringly elucidated by Justice Story, "[i]f the power did not exist, it
would be utterly impracticable to transact the business of the nation, either at all, or at
least with decency, deliberation, and order."19 Thus, Article VI, Section 16 (3) of the
Constitution provides that "each House may determine the rules of its proceedings." Pursuant to
this inherent constitutional power to promulgate and implement its own rules of procedure, the
respective rules of each house of Congress provided for the creation of a Bicameral Conference
Committee.
Thus, Rule XIV, Sections 88 and 89 of the Rules of House of Representatives provides as
follows:
Sec. 88. Conference Committee. – In the event that the House does not agree with the Senate
on the amendment to any bill or joint resolution, the differences may be settled by the
conference committees of both chambers.
In resolving the differences with the Senate, the House panel shall, as much as possible, adhere
to and support the House Bill. If the differences with the Senate are so substantial that they
materially impair the House Bill, the panel shall report such fact to the House for the latter’s
appropriate action.
Sec. 89. Conference Committee Reports. – . . . Each report shall contain a detailed, sufficiently
explicit statement of the changes in or amendments to the subject measure.
...
The Chairman of the House panel may be interpellated on the Conference Committee Report
prior to the voting thereon. The House shall vote on the Conference Committee Report in the
same manner and procedure as it votes on a bill on third and final reading.
Rule XII, Section 35 of the Rules of the Senate states:
Sec. 35. In the event that the Senate does not agree with the House of Representatives on the
provision of any bill or joint resolution, the differences shall be settled by a conference committee
of both Houses which shall meet within ten (10) days after their composition. The President shall
designate the members of the Senate Panel in the conference committee with the approval of
the Senate.
Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of
the changes in, or amendments to the subject measure, and shall be signed by a majority of the
members of each House panel, voting separately.
A comparative presentation of the conflicting House and Senate provisions and a reconciled
version thereof with the explanatory statement of the conference committee shall be attached to
the report.
...
The creation of such conference committee was apparently in response to a problem, not
addressed by any constitutional provision, where the two houses of Congress find themselves in
disagreement over changes or amendments introduced by the other house in a legislative bill.
Given that one of the most basic powers of the legislative branch is to formulate and implement
its own rules of proceedings and to discipline its members, may the Court then delve into the
details of how Congress complies with its internal rules or how it conducts its business of
passing legislation? Note that in the present petitions, the issue is not whether provisions of the
rules of both houses creating the bicameral conference committee are unconstitutional, but
whether the bicameral conference committee has strictly complied with the rules of both
houses, thereby remaining within the jurisdiction conferred upon it by Congress.
In the recent case of Fariñas vs. The Executive Secretary,20 the Court En
Banc, unanimously reiterated and emphasized its adherence to the "enrolled bill doctrine,"
thus, declining therein petitioners’ plea for the Court to go behind the enrolled copy of the bill.
Assailed in said case was Congress’s creation of two sets of bicameral conference committees,
the lack of records of said committees’ proceedings, the alleged violation of said committees of
the rules of both houses, and the disappearance or deletion of one of the provisions in the
compromise bill submitted by the bicameral conference committee. It was argued that such
irregularities in the passage of the law nullified R.A. No. 9006, or the Fair Election Act.
Striking down such argument, the Court held thus:
Under the "enrolled bill doctrine," the signing of a bill by the Speaker of the House and the
Senate President and the certification of the Secretaries of both Houses of Congress that it was
passed are conclusive of its due enactment. A review of cases reveals the Court’s consistent
adherence to the rule. The Court finds no reason to deviate from the salutary rule in this
case where the irregularities alleged by the petitioners mostly involved the internal rules
of Congress, e.g., creation of the 2nd or 3rd Bicameral Conference Committee by the
House. This Court is not the proper forum for the enforcement of these internal rules of
Congress, whether House or Senate. Parliamentary rules are merely procedural and with
their observance the courts have no concern. Whatever doubts there may be as to the
formal validity of Rep. Act No. 9006 must be resolved in its favor.The Court reiterates its
ruling in Arroyo vs. De Venecia, viz.:
But the cases, both here and abroad, in varying forms of expression, all deny to the courts
the power to inquire into allegations that, in enacting a law, a House of Congress failed to
comply with its own rules, in the absence of showing that there was a violation of a
constitutional provision or the rights of private individuals. In Osmeña v. Pendatun, it was
held: "At any rate, courts have declared that ‘the rules adopted by deliberative bodies are
subject to revocation, modification or waiver at the pleasure of the body adopting them.’ And it
has been said that "Parliamentary rules are merely procedural, and with their observance,
the courts have no concern. They may be waived or disregarded by the legislative body."
Consequently, "mere failure to conform to parliamentary usage will not invalidate the
action (taken by a deliberative body) when the requisite number of members have agreed
to a particular measure."21 (Emphasis supplied)
The foregoing declaration is exactly in point with the present cases, where petitioners allege
irregularities committed by the conference committee in introducing changes or deleting
provisions in the House and Senate bills. Akin to the Fariñas case,22 the present petitions also
raise an issue regarding the actions taken by the conference committee on matters regarding
Congress’ compliance with its own internal rules. As stated earlier, one of the most basic and
inherent power of the legislature is the power to formulate rules for its proceedings and the
discipline of its members. Congress is the best judge of how it should conduct its own business
expeditiously and in the most orderly manner. It is also the sole
concern of Congress to instill discipline among the members of its conference committee if it
believes that said members violated any of its rules of proceedings. Even the expanded
jurisdiction of this Court cannot apply to questions regarding only the internal operation of
Congress, thus, the Court is wont to deny a review of the internal proceedings of a co-equal
branch of government.
Moreover, as far back as 1994 or more than ten years ago, in the case of Tolentino vs.
Secretary of Finance,23 the Court already made the pronouncement that "[i]f a change is
desired in the practice [of the Bicameral Conference Committee] it must be sought in
Congress since this question is not covered by any constitutional provision but is only
an internal rule of each house." 24 To date, Congress has not seen it fit to make such changes
adverted to by the Court. It seems, therefore, that Congress finds the practices of the bicameral
conference committee to be very useful for purposes of prompt and efficient legislative action.
Nevertheless, just to put minds at ease that no blatant irregularities tainted the proceedings of
the bicameral conference committees, the Court deems it necessary to dwell on the issue. The
Court observes that there was a necessity for a conference committee because a comparison of
the provisions of House Bill Nos. 3555 and 3705 on one hand, and Senate Bill No. 1950 on the
other, reveals that there were indeed disagreements. As pointed out in the petitions, said
disagreements were as follows:
House Bill No. 3555
With regard to "Stand-By Authority" in favor of President
Provides for 12% VAT on
every sale of goods or
properties (amending Sec.
106 of NIRC); 12% VAT on
importation of goods
(amending Sec. 107 of
NIRC); and 12% VAT on
sale of services and use or
lease of properties
(amending Sec. 108 of
NIRC)
With regard to the "no pass-on" provision
No similar provision
With regard to 70% limit on input tax credit
Provides that the input tax
credit for capital goods on
which a VAT has been paid
shall be equally distributed
over 5 years or the
depreciable life of such
capital goods; the input tax
credit for goods and
services other than capital
House Bill No.3705
Provides for 12% VAT in
general on sales of goods or
properties and reduced rates
for sale of certain locally
manufactured goods and
petroleum products and raw
materials to be used in the
manufacture thereof (amending
Sec. 106 of NIRC); 12% VAT
on importation of goods and
reduced rates for certain
imported products including
petroleum products (amending
Sec. 107 of NIRC); and 12%
VAT on sale of services and
use or lease of properties and
a reduced rate for certain
services including power
generation (amending Sec. 108
of NIRC)
Provides that the VAT imposed
on power generation and on
the sale of petroleum products
shall be absorbed by
generation companies or
sellers, respectively, and shall
not be passed on to consumers
No similar provision
Senate Bill No. 1950
Provides for a single rate of
10% VAT on sale of goods
or properties (amending
Sec. 106 of NIRC), 10%
VAT on sale of services
including sale of electricity
by generation companies,
transmission and distribution
companies, and use or
lease of properties
(amending Sec. 108 of
NIRC)
Provides that the VAT
imposed on sales of
electricity by generation
companies and services of
transmission companies and
distribution companies, as
well as those of franchise
grantees of electric utilities
shall not apply to residential
end-users. VAT shall be
absorbed by generation,
transmission, and
distribution companies.
Provides that the input tax
credit for capital goods on
which a VAT has been paid
shall be equally distributed
over 5 years or the
depreciable life of such
capital goods; the input tax
credit for goods and
services other than capital
goods shall not exceed 5% goods shall not exceed 90%
of the total amount of such of the output VAT.
goods and services; and
for persons engaged in
retail trading of goods, the
allowable input tax credit
shall not exceed 11% of
the total amount of goods
purchased.
With regard to amendments to be made to NIRC provisions regarding income and exc
No similar provision No similar provision Provided for am
NIRC provision
income, percen
excise taxes
The disagreements between the provisions in the House bills and the Senate bill were with
regard to (1) what rate of VAT is to be imposed; (2) whether only the VAT imposed on electricity
generation, transmission and distribution companies should not be passed on to consumers, as
proposed in the Senate bill, or both the VAT imposed on electricity generation, transmission and
distribution companies and the VAT imposed on sale of petroleum products should not be
passed on to consumers, as proposed in the House bill; (3) in what manner input tax credits
should be limited; (4) and whether the NIRC provisions on corporate income taxes, percentage,
franchise and excise taxes should be amended.
There being differences and/or disagreements on the foregoing provisions of the House and
Senate bills, the Bicameral Conference Committee was mandated by the rules of both houses of
Congress to act on the same by settling said differences and/or disagreements. The Bicameral
Conference Committee acted on the disagreeing provisions by making the following changes:
1. With regard to the disagreement on the rate of VAT to be imposed, it would appear from the
Conference Committee Report that the Bicameral Conference Committee tried to bridge the gap
in the difference between the 10% VAT rate proposed by the Senate, and the various rates with
12% as the highest VAT rate proposed by the House, by striking a compromise whereby the
present 10% VAT rate would be retained until certain conditions arise, i.e., the value-added tax
collection as a percentage of gross domestic product (GDP) of the previous year exceeds 2
4/5%, or National Government deficit as a percentage of GDP of the previous year exceeds
1½%, when the President, upon recommendation of the Secretary of Finance shall raise the rate
of VAT to 12% effective January 1, 2006.
2. With regard to the disagreement on whether only the VAT imposed on electricity generation,
transmission and distribution companies should not be passed on to consumers or whether both
the VAT imposed on electricity generation, transmission and distribution companies and the VAT
imposed on sale of petroleum products may be passed on to consumers, the Bicameral
Conference Committee chose to settle such disagreement by altogether deleting from its Report
any no pass-on provision.
3. With regard to the disagreement on whether input tax credits should be limited or not, the
Bicameral Conference Committee decided to adopt the position of the House by putting a
limitation on the amount of input tax that may be credited against the output tax, although it
crafted its own language as to the amount of the limitation on input tax credits and the manner of
computing the same by providing thus:
(A) Creditable Input Tax. – . . .
...
Provided, The input tax on goods purchased or imported in a calendar month for use in trade or
business for which deduction for depreciation is allowed under this Code, shall be spread evenly
over the month of acquisition and the fifty-nine (59) succeeding months if the aggregate
acquisition cost for such goods, excluding the VAT component thereof, exceeds one million
Pesos (₱1,000,000.00): PROVIDED, however, that if the estimated useful life of the capital good
is less than five (5) years, as used for depreciation purposes, then the input VAT shall be spread
over such shorter period: . . .
(B) Excess Output or Input Tax. – If at the end of any taxable quarter the output tax exceeds the
input tax, the excess shall be paid by the VAT-registered person. If the input tax exceeds the
output tax, the excess shall be carried over to the succeeding quarter or quarters: PROVIDED
that the input tax inclusive of input VAT carried over from the previous quarter that may be
credited in every quarter shall not exceed seventy percent (70%) of the output VAT: PROVIDED,
HOWEVER, THAT any input tax attributable to zero-rated sales by a VAT-registered person may
at his option be refunded or credited against other internal revenue taxes, . . .
4. With regard to the amendments to other provisions of the NIRC on corporate income tax,
franchise, percentage and excise taxes, the conference committee decided to include such
amendments and basically adopted the provisions found in Senate Bill No. 1950, with some
changes as to the rate of the tax to be imposed.
Under the provisions of both the Rules of the House of Representatives and Senate Rules, the
Bicameral Conference Committee is mandated to settle the differences between the disagreeing
provisions in the House bill and the Senate bill. The term "settle" is synonymous to "reconcile"
and "harmonize."25 To reconcile or harmonize disagreeing provisions, the Bicameral Conference
Committee may then (a) adopt the specific provisions of either the House bill or Senate bill, (b)
decide that neither provisions in the House bill or the provisions in the Senate bill would
be carried into the final form of the bill, and/or (c) try to arrive at a compromise between the
disagreeing provisions.
In the present case, the changes introduced by the Bicameral Conference Committee on
disagreeing provisions were meant only to reconcile and harmonize the disagreeing provisions
for it did not inject any idea or intent that is wholly foreign to the subject embraced by the original
provisions.
The so-called stand-by authority in favor of the President, whereby the rate of 10% VAT wanted
by the Senate is retained until such time that certain conditions arise when the 12% VAT wanted
by the House shall be imposed, appears to be a compromise to try to bridge the difference in the
rate of VAT proposed by the two houses of Congress. Nevertheless, such compromise is still
totally within the subject of what rate of VAT should be imposed on taxpayers.
The no pass-on provision was deleted altogether. In the transcripts of the proceedings of the
Bicameral Conference Committee held on May 10, 2005, Sen. Ralph Recto, Chairman of the
Senate Panel, explained the reason for deleting the no pass-on provision in this wise:
. . . the thinking was just to keep the VAT law or the VAT bill simple. And we were thinking that
no sector should be a beneficiary of legislative grace, neither should any sector be discriminated
on. The VAT is an indirect tax. It is a pass on-tax. And let’s keep it plain and simple. Let’s not
confuse the bill and put a no pass-on provision. Two-thirds of the world have a VAT system and
in this two-thirds of the globe, I have yet to see a VAT with a no pass-though provision. So, the
thinking of the Senate is basically simple, let’s keep the VAT simple.26 (Emphasis supplied)
Rep. Teodoro Locsin further made the manifestation that the no pass-on provision "never really
enjoyed the support of either House."27
With regard to the amount of input tax to be credited against output tax, the Bicameral
Conference Committee came to a compromise on the percentage rate of the limitation or cap on
such input tax credit, but again, the change introduced by the Bicameral Conference Committee
was totally within the intent of both houses to put a cap on input tax that may be
credited against the output tax. From the inception of the subject revenue bill in the House of
Representatives, one of the major objectives was to "plug a glaring loophole in the tax policy and
administration by creating vital restrictions on the claiming of input VAT tax credits . . ." and "[b]y
introducing limitations on the claiming of tax credit, we are capping a major leakage that has
placed our collection efforts at an apparent disadvantage."28
As to the amendments to NIRC provisions on taxes other than the value-added tax proposed in
Senate Bill No. 1950, since said provisions were among those referred to it, the conference
committee had to act on the same and it basically adopted the version of the Senate.
Thus, all the changes or modifications made by the Bicameral Conference Committee were
germane to subjects of the provisions referred
to it for reconciliation. Such being the case, the Court does not see any grave abuse of
discretion amounting to lack or excess of jurisdiction committed by the Bicameral Conference
Committee. In the earlier cases of Philippine Judges Association vs. Prado29 and Tolentino vs.
Secretary of Finance,30 the Court recognized the long-standing legislative practice of giving said
conference committee ample latitude for compromising differences between the Senate and the
House. Thus, in the Tolentino case, it was held that:
. . . it is within the power of a conference committee to include in its report an entirely new
provision that is not found either in the House bill or in the Senate bill. If the committee can
propose an amendment consisting of one or two provisions, there is no reason why it cannot
propose several provisions, collectively considered as an "amendment in the nature of a
substitute," so long as such amendment is germane to the subject of the bills before the
committee. After all, its report was not final but needed the approval of both houses of Congress
to become valid as an act of the legislative department. The charge that in this case the
Conference Committee acted as a third legislative chamber is thus without any
basis.31 (Emphasis supplied)
B. R.A. No. 9337 Does Not Violate Article VI, Section 26(2) of the Constitution on the "No-
Amendment Rule"
Article VI, Sec. 26 (2) of the Constitution, states:
No bill passed by either House shall become a law unless it has passed three readings on
separate days, and printed copies thereof in its final form have been distributed to its Members
three days before its passage, except when the President certifies to the necessity of its
immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no
amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter,
and the yeas and nays entered in the Journal.
Petitioners’ argument that the practice where a bicameral conference committee is allowed to
add or delete provisions in the House bill and the Senate bill after these had passed three
readings is in effect a circumvention of the "no amendment rule" (Sec. 26 (2), Art. VI of the 1987
Constitution), fails to convince the Court to deviate from its ruling in the Tolentino case that:
Nor is there any reason for requiring that the Committee’s Report in these cases must have
undergone three readings in each of the two houses. If that be the case, there would be no end
to negotiation since each house may seek modification of the compromise bill. . . .
Art. VI. § 26 (2) must, therefore, be construed as referring only to bills introduced for the argue that since the proposed amendments did not originate from the House, such amendments
first time in either house of Congress, not to the conference committee are a violation of Article VI, Section 24 of the Constitution.
report.32 (Emphasis supplied)
The argument does not hold water.
The Court reiterates here that the "no-amendment rule" refers only to the procedure to be
followed by each house of Congress with regard to bills initiated in each of said Article VI, Section 24 of the Constitution reads:
respective houses, before said bill is transmitted to the other house for its concurrence
or amendment. Verily, to construe said provision in a way as to proscribe any further changes Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills
to a bill after one house has voted on it would lead to absurdity as this would mean that the other of local application, and private bills shall originate exclusively in the House of Representatives
house of Congress would be deprived of its constitutional power to amend or introduce changes but the Senate may propose or concur with amendments.
to said bill. Thus, Art. VI, Sec. 26 (2) of the Constitution cannot be taken to mean that the
introduction by the Bicameral Conference Committee of amendments and modifications to In the present cases, petitioners admit that it was indeed House Bill Nos. 3555 and 3705 that
disagreeing provisions in bills that have been acted upon by both houses of Congress is initiated the move for amending provisions of the NIRC dealing mainly with the value-added tax.
prohibited. Upon transmittal of said House bills to the Senate, the Senate came out with Senate Bill No.
1950 proposing amendments not only to NIRC provisions on the value-added tax but also
C. R.A. No. 9337 Does Not Violate Article VI, Section 24 of the Constitution on Exclusive amendments to NIRC provisions on other kinds of taxes. Is the introduction by the Senate of
Origination of Revenue Bills provisions not dealing directly with the value- added tax, which is the only kind of tax being
amended in the House bills, still within the purview of the constitutional provision authorizing the
Coming to the issue of the validity of the amendments made regarding the NIRC provisions on Senate to propose or concur with amendments to a revenue bill that originated from the House?
corporate income taxes and percentage, excise taxes. Petitioners refer to the following
provisions, to wit: The foregoing question had been squarely answered in the Tolentino case, wherein the Court
held, thus:
Section 27 Rates of Income Tax on Domestic Corporation
. . . To begin with, it is not the law – but the revenue bill – which is required by the Constitution to
28(A)(1) Tax on Resident Foreign Corporation "originate exclusively" in the House of Representatives. It is important to emphasize this,
because a bill originating in the House may undergo such extensive changes in the Senate that
28(B)(1) Inter-corporate Dividends the result may be a rewriting of the whole. . . . At this point, what is important to note is that, as a
result of the Senate action, a distinct bill may be produced. To insist that a revenue statute –
and not only the bill which initiated the legislative process culminating in the enactment
34(B)(1) Inter-corporate Dividends of the law – must substantially be the same as the House bill would be to deny the
Senate’s power not only to "concur with amendments" but also to "propose
116 Tax on Persons Exempt from VAT amendments." It would be to violate the coequality of legislative power of the two houses of
Congress and in fact make the House superior to the Senate.
117 Percentage Tax on domestic carriers and keepers of Garage
…
119 Tax on franchises
…Given, then, the power of the Senate to propose amendments, the Senate can propose
its own version even with respect to bills which are required by the Constitution to
121 Tax on banks and Non-Bank Financial Intermediaries
originate in the House.
148 Excise Tax on manufactured oils and other fuels ...

151 Excise Tax on mineral products Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff or tax
bills, bills authorizing an increase of the public debt, private bills and bills of local application
236 Registration requirements must come from the House of Representatives on the theory that, elected as they are from the
districts, the members of the House can be expected to be more sensitive to the local
237 Issuance of receipts or sales or commercial invoices needs and problems. On the other hand, the senators, who are elected at large, are
expected to approach the same problems from the national perspective. Both views are
thereby made to bear on the enactment of such laws.33 (Emphasis supplied)
288 Disposition of Incremental Revenue
Since there is no question that the revenue bill exclusively originated in the House of
Petitioners claim that the amendments to these provisions of the NIRC did not at all originate Representatives, the Senate was acting within its
from the House. They aver that House Bill No. 3555 proposed amendments only regarding
Sections 106, 107, 108, 110 and 114 of the NIRC, while House Bill No. 3705 proposed
constitutional power to introduce amendments to the House bill when it included provisions in
amendments only to Sections 106, 107,108, 109, 110 and 111 of the NIRC; thus, the other
Senate Bill No. 1950 amending corporate income taxes, percentage, excise and franchise taxes.
sections of the NIRC which the Senate amended but which amendments were not found in the
Verily, Article VI, Section 24 of the Constitution does not contain any prohibition or limitation on
House bills are not intended to be amended by the House of Representatives. Hence, they
the extent of the amendments that may be introduced by the Senate to the House revenue bill.
Furthermore, the amendments introduced by the Senate to the NIRC provisions that had not
been touched in the House bills are still in furtherance of the intent of the House in initiating the
subject revenue bills. The Explanatory Note of House Bill No. 1468, the very first House bill
introduced on the floor, which was later substituted by House Bill No. 3555, stated:
One of the challenges faced by the present administration is the urgent and daunting task of
solving the country’s serious financial problems. To do this, government expenditures must be
strictly monitored and controlled and revenues must be significantly increased. This may be
easier said than done, but our fiscal authorities are still optimistic the government will be
operating on a balanced budget by the year 2009. In fact, several measures that will result to
significant expenditure savings have been identified by the administration. It is supported with
a credible package of revenue measures that include measures to improve tax
administration and control the leakages in revenues from income taxes and the value-
added tax (VAT). (Emphasis supplied)
Rep. Eric D. Singson, in his sponsorship speech for House Bill No. 3555, declared that:
In the budget message of our President in the year 2005, she reiterated that we all
acknowledged that on top of our agenda must be the restoration of the health of our fiscal
system.
In order to considerably lower the consolidated public sector deficit and eventually achieve a
balanced budget by the year 2009, we need to seize windows of opportunities which might
seem poignant in the beginning, but in the long run prove effective and beneficial to the
overall status of our economy. One such opportunity is a review of existing tax rates,
evaluating the relevance given our present conditions.34 (Emphasis supplied)
Notably therefore, the main purpose of the bills emanating from the House of Representatives is
to bring in sizeable revenues for the government
to supplement our country’s serious financial problems, and improve tax administration and
control of the leakages in revenues from income taxes and value-added taxes. As these house
bills were transmitted to the Senate, the latter, approaching the measures from the point of
national perspective, can introduce amendments within the purposes of those bills. It can
provide for ways that would soften the impact of the VAT measure on the consumer, i.e., by
distributing the burden across all sectors instead of putting it entirely on the shoulders of the
consumers. The sponsorship speech of Sen. Ralph Recto on why the provisions on income tax
on corporation were included is worth quoting:
All in all, the proposal of the Senate Committee on Ways and Means will raise ₱64.3 billion in
additional revenues annually even while by mitigating prices of power, services and petroleum
products.
However, not all of this will be wrung out of VAT. In fact, only ₱48.7 billion amount is from the
VAT on twelve goods and services. The rest of the tab – ₱10.5 billion- will be picked by
corporations.
What we therefore prescribe is a burden sharing between corporate Philippines and the
consumer. Why should the latter bear all the pain? Why should the fiscal salvation be only on
the burden of the consumer?
The corporate world’s equity is in form of the increase in the corporate income tax from 32 to 35
percent, but up to 2008 only. This will raise ₱10.5 billion a year. After that, the rate will slide
back, not to its old rate of 32 percent, but two notches lower, to 30 percent.
Clearly, we are telling those with the capacity to pay, corporations, to bear with this emergency
provision that will be in effect for 1,200 days, while we put our fiscal house in order. This fiscal
medicine will have an expiry date.
For their assistance, a reward of tax reduction awaits them. We intend to keep the length of their
sacrifice brief. We would like to assure them that not because there is a light at the end of the
tunnel, this government will keep on making the tunnel long.
The responsibility will not rest solely on the weary shoulders of the small man. Big business will
be there to share the burden.35
As the Court has said, the Senate can propose amendments and in fact, the amendments made
on provisions in the tax on income of corporations are germane to the purpose of the house bills
which is to raise revenues for the government.
Likewise, the Court finds the sections referring to other percentage and excise taxes germane to
the reforms to the VAT system, as these sections would cushion the effects of VAT on
consumers. Considering that certain goods and services which were subject to percentage tax
and excise tax would no longer be VAT-exempt, the consumer would be burdened more as they
would be paying the VAT in addition to these taxes. Thus, there is a need to amend these
sections to soften the impact of VAT. Again, in his sponsorship speech, Sen. Recto said:
However, for power plants that run on oil, we will reduce to zero the present excise tax on
bunker fuel, to lessen the effect of a VAT on this product.
For electric utilities like Meralco, we will wipe out the franchise tax in exchange for a VAT.
And in the case of petroleum, while we will levy the VAT on oil products, so as not to destroy the
VAT chain, we will however bring down the excise tax on socially sensitive products such as
diesel, bunker, fuel and kerosene.
...
What do all these exercises point to? These are not contortions of giving to the left hand what
was taken from the right. Rather, these sprang from our concern of softening the impact of VAT,
so that the people can cushion the blow of higher prices they will have to pay as a result of
VAT.36
The other sections amended by the Senate pertained to matters of tax administration which are
necessary for the implementation of the changes in the VAT system.
To reiterate, the sections introduced by the Senate are germane to the subject matter and
purposes of the house bills, which is to supplement our country’s fiscal deficit, among others.
Thus, the Senate acted within its power to propose those amendments.
SUBSTANTIVE ISSUES
I.
Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the
NIRC, violate the following provisions of the Constitution:
a. Article VI, Section 28(1), and
b. Article VI, Section 28(2)
A. No Undue Delegation of Legislative Power
Petitioners ABAKADA GURO Party List, et al., Pimentel, Jr., et al., and Escudero, et al. contend
in common that Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108,
respectively, of the NIRC giving the President the stand-by authority to raise the VAT rate from
10% to 12% when a certain condition is met, constitutes undue delegation of the legislative
power to tax.
The assailed provisions read as follows:
SEC. 4. Sec. 106 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 106. Value-Added Tax on Sale of Goods or Properties. –
(A) Rate and Base of Tax. – There shall be levied, assessed and collected on every sale, barter
or exchange of goods or properties, a value-added tax equivalent to ten percent (10%) of the
gross selling price or gross value in money of the goods or properties sold, bartered or
exchanged, such tax to be paid by the seller or transferor: provided, that the President, upon
the recommendation of the Secretary of Finance, shall, effective January 1, 2006, raise
the rate of value-added tax to twelve percent (12%), after any of the following conditions
has been satisfied.
(i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the
previous year exceeds two and four-fifth percent (2 4/5%) or
(ii) national government deficit as a percentage of GDP of the previous year exceeds one
and one-half percent (1 ½%).
SEC. 5. Section 107 of the same Code, as amended, is hereby further amended to read as
follows:
SEC. 107. Value-Added Tax on Importation of Goods. –
(A) In General. – There shall be levied, assessed and collected on every importation of goods a
value-added tax equivalent to ten percent (10%) based on the total value used by the Bureau of
Customs in determining tariff and customs duties, plus customs duties, excise taxes, if any, and
other charges, such tax to be paid by the importer prior to the release of such goods from
customs custody: Provided, That where the customs duties are determined on the basis of the
quantity or volume of the goods, the value-added tax shall be based on the landed cost plus
excise taxes, if any: provided, further, that the President, upon the recommendation of the
Secretary of Finance, shall, effective January 1, 2006, raise the rate of value-added tax to
twelve percent (12%) after any of the following conditions has been satisfied.
(i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the
previous year exceeds two and four-fifth percent (2 4/5%) or
(ii) national government deficit as a percentage of GDP of the previous year exceeds one
and one-half percent (1 ½%).
SEC. 6. Section 108 of the same Code, as amended, is hereby further amended to read as
follows:
SEC. 108. Value-added Tax on Sale of Services and Use or Lease of Properties –
(A) Rate and Base of Tax. – There shall be levied, assessed and collected, a value-added tax
equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of
services: provided, that the President, upon the recommendation of the Secretary of
Finance, shall, effective January 1, 2006, raise the rate of value-added tax to twelve
percent (12%), after any of the following conditions has been satisfied.
(i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the
previous year exceeds two and four-fifth percent (2 4/5%) or
(ii) national government deficit as a percentage of GDP of the previous year exceeds one
and one-half percent (1 ½%). (Emphasis supplied)
Petitioners allege that the grant of the stand-by authority to the President to increase the VAT
rate is a virtual abdication by Congress of its exclusive power to tax because such delegation is
not within the purview of Section 28 (2), Article VI of the Constitution, which provides:
The Congress may, by law, authorize the President to fix within specified limits, and may
impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of the government.
They argue that the VAT is a tax levied on the sale, barter or exchange of goods and properties
as well as on the sale or exchange of services, which cannot be included within the purview of
tariffs under the exempted delegation as the latter refers to customs duties, tolls or tribute
payable upon merchandise to the government and usually imposed on goods or merchandise
imported or exported.
Petitioners ABAKADA GURO Party List, et al., further contend that delegating to the President
the legislative power to tax is contrary to republicanism. They insist that accountability,
responsibility and transparency should dictate the actions of Congress and they should not pass
to the President the decision to impose taxes. They also argue that the law also effectively
nullified the President’s power of control, which includes the authority to set aside and nullify the
acts of her subordinates like the Secretary of Finance, by mandating the fixing of the tax rate by
the President upon the recommendation of the Secretary of Finance.
Petitioners Pimentel, et al. aver that the President has ample powers to cause, influence or
create the conditions provided by the law to bring about either or both the conditions precedent.
On the other hand, petitioners Escudero, et al. find bizarre and revolting the situation that the
imposition of the 12% rate would be subject to the whim of the Secretary of Finance, an
unelected bureaucrat, contrary to the principle of no taxation without representation. They submit
that the Secretary of Finance is not mandated to give a favorable recommendation and he may
not even give his recommendation. Moreover, they allege that no guiding standards are provided
in the law on what basis and as to how he will make his recommendation. They claim,
nonetheless, that any recommendation of the Secretary of Finance can easily be brushed aside
by the President since the former is a mere alter ego of the latter, such that, ultimately, it is the
President who decides whether to impose the increased tax rate or not.
A brief discourse on the principle of non-delegation of powers is instructive.
The principle of separation of powers ordains that each of the three great branches of
government has exclusive cognizance of and is supreme in matters falling within its own
constitutionally allocated sphere.37 A logical
corollary to the doctrine of separation of powers is the principle of non-delegation of powers, as
expressed in the Latin maxim: potestas delegata non delegari potest which means "what has
been delegated, cannot be delegated."38 This doctrine is based on the ethical principle that such
as delegated power constitutes not only a right but a duty to be performed by the delegate
through the instrumentality of his own judgment and not through the intervening mind of
another.39
With respect to the Legislature, Section 1 of Article VI of the Constitution provides that "the
Legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives." The powers which Congress is prohibited from
delegating are those which are strictly, or inherently and exclusively, legislative. Purely
legislative power, which can never be delegated, has been described as the authority to make
a complete law – complete as to the time when it shall take effect and as to whom it shall
be applicable – and to determine the expediency of its enactment.40 Thus, the rule is that in
order that a court may be justified in holding a statute unconstitutional as a delegation of
legislative power, it must appear that the power involved is purely legislative in nature – that is,
one appertaining exclusively to the legislative department. It is the nature of the power, and not
the liability of its use or the manner of its exercise, which determines the validity of its delegation.
Nonetheless, the general rule barring delegation of legislative powers is subject to the following
recognized limitations or exceptions:
(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the
Constitution;
(2) Delegation of emergency powers to the President under Section 23 (2) of Article VI of the
Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.
In every case of permissible delegation, there must be a showing that the delegation itself is
valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate;41 and (b) fixes a standard — the limits of
which are sufficiently determinate and determinable — to which the delegate must conform in
the performance of his functions.42 A sufficient standard is one which defines legislative policy,
marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates
the circumstances under which the legislative command is to be effected. 43 Both tests are
intended to prevent a total transference of legislative authority to the delegate, who is not
allowed to step into the shoes of the legislature and exercise a power essentially legislative. 44
In People vs. Vera,45 the Court, through eminent Justice Jose P. Laurel, expounded on the
concept and extent of delegation of power in this wise:
In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual
to inquire whether the statute was complete in all its terms and provisions when it left the hands
of the legislature so that nothing was left to the judgment of any other appointee or delegate of
the legislature.
...
‘The true distinction’, says Judge Ranney, ‘is between the delegation of power to make
the law, which necessarily involves a discretion as to what it shall be, and conferring an
authority or discretion as to its execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid objection can be made.’
...
It is contended, however, that a legislative act may be made to the effect as law after it leaves
the hands of the legislature. It is true that laws may be made effective on certain contingencies,
as by proclamation of the executive or the adoption by the people of a particular community. In
Wayman vs. Southard, the Supreme Court of the United States ruled that the legislature may
delegate a power not legislative which it may itself rightfully exercise. The power to ascertain
facts is such a power which may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the taking into effect of a
law. That is a mental process common to all branches of the government. Notwithstanding
the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority
on account of the complexity arising from social and economic forces at work in this modern
industrial age, the orthodox pronouncement of Judge Cooley in his work on Constitutional
Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the United
States in the following language — speaking of declaration of legislative power to administrative
agencies: The principle which permits the legislature to provide that the administrative
agent may determine when the circumstances are such as require the application of a law
is defended upon the ground that at the time this authority is granted, the rule of public
policy, which is the essence of the legislative act, is determined by the legislature. In
other words, the legislature, as it is its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and that, under
other circumstances, different or no action at all is to be taken. What is thus left to the
administrative official is not the legislative determination of what public policy demands,
but simply the ascertainment of what the facts of the case require to be done according
to the terms of the law by which he is governed. The efficiency of an Act as a declaration
of legislative will must, of course, come from Congress, but the ascertainment of the
contingency upon which the Act shall take effect may be left to such agencies as it may
designate. The legislature, then, may provide that a law shall take effect upon the
happening of future specified contingencies leaving to some other person or body the
power to determine when the specified contingency has arisen. (Emphasis supplied).46
In Edu vs. Ericta,47 the Court reiterated:
What cannot be delegated is the authority under the Constitution to make laws and to alter and
repeal them; the test is the completeness of the statute in all its terms and provisions when it
leaves the hands of the legislature. To determine whether or not there is an undue delegation of
legislative power, the inquiry must be directed to the scope and definiteness of the measure
enacted. The legislative does not abdicate its functions when it describes what job must
be done, who is to do it, and what is the scope of his authority. For a complex economy,
that may be the only way in which the legislative process can go forward. A distinction has
rightfully been made between delegation of power to make the laws which necessarily
involves a discretion as to what it shall be, which constitutionally may not be done, and
delegation of authority or discretion as to its execution to be exercised under and in
pursuance of the law, to which no valid objection can be made. The Constitution is thus not
to be regarded as denying the legislature the necessary resources of flexibility and practicability.
(Emphasis supplied).48
Clearly, the legislature may delegate to executive officers or bodies the power to determine
certain facts or conditions, or the happening of contingencies, on which the operation of a statute
is, by its terms, made to depend, but the legislature must prescribe sufficient standards, policies
or limitations on their authority.49 While the power to tax cannot be delegated to executive
agencies, details as to the enforcement and administration of an exercise of such power may be
left to them, including the power to determine the existence of facts on which its operation
depends.50
The rationale for this is that the preliminary ascertainment of facts as basis for the enactment of
legislation is not of itself a legislative function, but is simply ancillary to legislation. Thus, the duty
of correlating information and making recommendations is the kind of subsidiary activity which
the legislature may perform through its members, or which it may delegate to others to perform.
Intelligent legislation on the complicated problems of modern society is impossible in the
absence of accurate information on the part of the legislators, and any reasonable method of
securing such information is proper.51 The Constitution as a continuously operative charter of
government does not require that Congress find for itself
every fact upon which it desires to base legislative action or that it make for itself detailed
determinations which it has declared to be prerequisite to application of legislative policy to
particular facts and circumstances impossible for Congress itself properly to investigate. 52
In the present case, the challenged section of R.A. No. 9337 is the common proviso in Sections
4, 5 and 6 which reads as follows:
That the President, upon the recommendation of the Secretary of Finance, shall, effective
January 1, 2006, raise the rate of value-added tax to twelve percent (12%), after any of the
following conditions has been satisfied:
(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2 4/5%); or
(ii) National government deficit as a percentage of GDP of the previous year exceeds one and
one-half percent (1 ½%).
The case before the Court is not a delegation of legislative power. It is simply a delegation of
ascertainment of facts upon which enforcement and administration of the increase rate under the
law is contingent. The legislature has made the operation of the 12% rate effective January 1,
2006, contingent upon a specified fact or condition. It leaves the entire operation or non-
operation of the 12% rate upon factual matters outside of the control of the executive.
No discretion would be exercised by the President. Highlighting the absence of discretion is the
fact that the word shall is used in the common proviso. The use of the word shall connotes a
mandatory order. Its use in a statute denotes an imperative obligation and is inconsistent with
the idea of discretion.53 Where the law is clear and unambiguous, it must be taken to mean
exactly what it says, and courts have no choice but to see to it that the mandate is obeyed. 54
Thus, it is the ministerial duty of the President to immediately impose the 12% rate upon the
existence of any of the conditions specified by Congress. This is a duty which cannot be evaded
by the President. Inasmuch as the law specifically uses the word shall, the exercise of discretion
by the President does not come into play. It is a clear directive to impose the 12% VAT rate
when the specified conditions are present. The time of taking into effect of the 12% VAT rate is
based on the happening of a certain specified contingency, or upon the ascertainment of certain
facts or conditions by a person or body other than the legislature itself.
The Court finds no merit to the contention of petitioners ABAKADA GURO Party List, et al. that
the law effectively nullified the President’s power of control over the Secretary of Finance by
mandating the fixing of the tax rate by the President upon the recommendation of the Secretary
of Finance. The Court cannot also subscribe to the position of petitioners
Pimentel, et al. that the word shall should be interpreted to mean may in view of the phrase
"upon the recommendation of the Secretary of Finance." Neither does the Court find persuasive
the submission of petitioners Escudero, et al. that any recommendation by the Secretary of
Finance can easily be brushed aside by the President since the former is a mere alter ego of the
latter.
When one speaks of the Secretary of Finance as the alter ego of the President, it simply means
that as head of the Department of Finance he is the assistant and agent of the Chief Executive.
The multifarious executive and administrative functions of the Chief Executive are performed by
and through the executive departments, and the acts of the secretaries of such departments,
such as the Department of Finance, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts
of the Chief Executive. The Secretary of Finance, as such, occupies a political position and
holds office in an advisory capacity, and, in the language of Thomas Jefferson, "should be of the
President's bosom confidence" and, in the language of Attorney-General Cushing, is "subject to
the direction of the President."55
In the present case, in making his recommendation to the President on the existence of either of
the two conditions, the Secretary of Finance is not acting as the alter ego of the President or
even her subordinate. In such instance, he is not subject to the power of control and direction of
the President. He is acting as the agent of the legislative department, to determine and declare
the event upon which its expressed will is to take effect.56 The Secretary of Finance becomes
the means or tool by which legislative policy is determined and implemented, considering that he
possesses all the facilities to gather data and information and has a much broader perspective to
properly evaluate them. His function is to gather and collate statistical data and other pertinent
information and verify if any of the two conditions laid out by Congress is present. His personality
in such instance is in reality but a projection of that of Congress. Thus, being the agent of
Congress and not of the President, the President cannot alter or modify or nullify, or set aside
the findings of the Secretary of Finance and to substitute the judgment of the former for that of
the latter.
Congress simply granted the Secretary of Finance the authority to ascertain the existence of a
fact, namely, whether by December 31, 2005, the value-added tax collection as a percentage of
Gross Domestic Product (GDP) of the previous year exceeds two and four-fifth percent (24/5%)
or the national government deficit as a percentage of GDP of the previous year exceeds one and
one-half percent (1½%). If either of these two instances has occurred, the Secretary of Finance,
by legislative mandate, must submit such information to the President. Then the 12% VAT rate
must be imposed by the President effective January 1, 2006. There is no undue delegation of
legislative power but only of the discretion as to the execution of a law. This is
constitutionally permissible.57 Congress does not abdicate its functions or unduly delegate
power when it describes what job must be done, who must do it, and what is the scope of his
authority; in our complex economy that is frequently the only way in which the legislative process
can go forward.58
As to the argument of petitioners ABAKADA GURO Party List, et al. that delegating to the
President the legislative power to tax is contrary to the principle of republicanism, the same
deserves scant consideration. Congress did not delegate the power to tax but the mere
implementation of the law. The intent and will to increase the VAT rate to 12% came from
Congress and the task of the President is to simply execute the legislative policy. That Congress
chose to do so in such a manner is not within the province of the Court to inquire into, its task
being to interpret the law.59
The insinuation by petitioners Pimentel, et al. that the President has ample powers to cause,
influence or create the conditions to bring about either or both the conditions precedent does not
deserve any merit as this argument is highly speculative. The Court does not rule on allegations
which are manifestly conjectural, as these may not exist at all. The Court deals with facts, not
fancies; on realities, not appearances. When the Court acts on appearances instead of realities,
justice and law will be short-lived.
B. The 12% Increase VAT Rate Does Not Impose an Unfair and Unnecessary Additional Tax
Burden
Petitioners Pimentel, et al. argue that the 12% increase in the VAT rate imposes an unfair and
additional tax burden on the people. Petitioners also argue that the 12% increase, dependent on
any of the 2 conditions set forth in the contested provisions, is ambiguous because it does not
state if the VAT rate would be returned to the original 10% if the rates are no longer satisfied.
Petitioners also argue that such rate is unfair and unreasonable, as the people are unsure of the
applicable VAT rate from year to year.
Under the common provisos of Sections 4, 5 and 6 of R.A. No. 9337, if any of the two conditions
set forth therein are satisfied, the President shall increase the VAT rate to 12%. The provisions
of the law are clear. It does not provide for a return to the 10% rate nor does it empower the
President to so revert if, after the rate is increased to 12%, the VAT collection goes below the
24/5 of the GDP of the previous year or that the national government deficit as a percentage of
GDP of the previous year does not exceed 1½%.
Therefore, no statutory construction or interpretation is needed. Neither can conditions or
limitations be introduced where none is provided for. Rewriting the law is a forbidden ground that
only Congress may tread upon.60
Thus, in the absence of any provision providing for a return to the 10% rate, which in this case
the Court finds none, petitioners’ argument is, at best, purely speculative. There is no basis for
petitioners’ fear of a fluctuating VAT rate because the law itself does not provide that the rate
should go back to 10% if the conditions provided in Sections 4, 5 and 6 are no longer present.
The rule is that where the provision of the law is clear and unambiguous, so that there is no
occasion for the court's seeking the legislative intent, the law must be taken as it is, devoid of
judicial addition or subtraction.61
Petitioners also contend that the increase in the VAT rate, which was allegedly an incentive to
the President to raise the VAT collection to at least 2 4/5 of the GDP of the previous year, should
be based on fiscal adequacy.
Petitioners obviously overlooked that increase in VAT collection is not the only condition. There
is another condition, i.e., the national government deficit as a percentage of GDP of the previous
year exceeds one and one-half percent (1 ½%).
Respondents explained the philosophy behind these alternative conditions:
1. VAT/GDP Ratio > 2.8%
The condition set for increasing VAT rate to 12% have economic or fiscal meaning. If VAT/GDP
is less than 2.8%, it means that government has weak or no capability of implementing the VAT
or that VAT is not effective in the function of the tax collection. Therefore, there is no value to
increase it to 12% because such action will also be ineffectual.
2. Nat’l Gov’t Deficit/GDP >1.5%
The condition set for increasing VAT when deficit/GDP is 1.5% or less means the fiscal condition
of government has reached a relatively sound position or is towards the direction of a balanced
budget position. Therefore, there is no need to increase the VAT rate since the fiscal house is in
a relatively healthy position. Otherwise stated, if the ratio is more than 1.5%, there is indeed a
need to increase the VAT rate.62
That the first condition amounts to an incentive to the President to increase the VAT collection
does not render it unconstitutional so long as there is a public purpose for which the law was
passed, which in this case, is mainly to raise revenue. In fact, fiscal adequacy dictated the need
for a raise in revenue.
The principle of fiscal adequacy as a characteristic of a sound tax system was originally stated
by Adam Smith in his Canons of Taxation (1776), as:
IV. Every tax ought to be so contrived as both to take out and to keep out of the pockets of the
people as little as possible over and above what it brings into the public treasury of the state. 63
It simply means that sources of revenues must be adequate to meet government expenditures
and their variations.64
The dire need for revenue cannot be ignored. Our country is in a quagmire of financial woe.
During the Bicameral Conference Committee hearing, then Finance Secretary Purisima bluntly
depicted the country’s gloomy state of economic affairs, thus:
First, let me explain the position that the Philippines finds itself in right now. We are in a position
where 90 percent of our revenue is used for debt service. So, for every peso of revenue that we
currently raise, 90 goes to debt service. That’s interest plus amortization of our debt. So clearly,
this is not a sustainable situation. That’s the first fact.
The second fact is that our debt to GDP level is way out of line compared to other peer countries
that borrow money from that international financial markets. Our debt to GDP is approximately
equal to our GDP. Again, that shows you that this is not a sustainable situation.
The third thing that I’d like to point out is the environment that we are presently operating in is
not as benign as what it used to be the past five years.
What do I mean by that?
In the past five years, we’ve been lucky because we were operating in a period of basically
global growth and low interest rates. The past few months, we have seen an inching up, in fact,
a rapid increase in the interest rates in the leading economies of the world. And, therefore, our
ability to borrow at reasonable prices is going to be challenged. In fact, ultimately, the question is
our ability to access the financial markets.
When the President made her speech in July last year, the environment was not as bad as it is
now, at least based on the forecast of most financial institutions. So, we were assuming that
raising 80 billion would put us in a position where we can then convince them to improve our
ability to borrow at lower rates. But conditions have changed on us because the interest rates
have gone up. In fact, just within this room, we tried to access the market for a billion dollars
because for this year alone, the Philippines will have to borrow 4 billion dollars. Of that amount,
we have borrowed 1.5 billion. We issued last January a 25-year bond at 9.7 percent cost. We
were trying to access last week and the market was not as favorable and up to now we have not
accessed and we might pull back because the conditions are not very good.
So given this situation, we at the Department of Finance believe that we really need to front-end
our deficit reduction. Because it is deficit that is causing the increase of the debt and we are in
what we call a debt spiral. The more debt you have, the more deficit you have because interest
and debt service eats and eats more of your revenue. We need to get out of this debt spiral. And
the only way, I think, we can get out of this debt spiral is really have a front-end adjustment in
our revenue base.65
The image portrayed is chilling. Congress passed the law hoping for rescue from an inevitable
catastrophe. Whether the law is indeed sufficient to answer the state’s economic dilemma is not
for the Court to judge. In the Fariñas case, the Court refused to consider the various arguments
raised therein that dwelt on the wisdom of Section 14 of R.A. No. 9006 (The Fair Election Act),
pronouncing that:
. . . policy matters are not the concern of the Court. Government policy is within the exclusive
dominion of the political branches of the government. It is not for this Court to look into the
wisdom or propriety of legislative determination. Indeed, whether an enactment is wise or
unwise, whether it is based on sound economic theory, whether it is the best means to achieve
the desired results, whether, in short, the legislative discretion within its prescribed limits should
be exercised in a particular manner are matters for the judgment of the legislature, and the
serious conflict of opinions does not suffice to bring them within the range of judicial
cognizance.66
In the same vein, the Court in this case will not dawdle on the purpose of Congress or the
executive policy, given that it is not for the judiciary to "pass upon questions of wisdom, justice or
expediency of legislation."67
II.
Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC; and
Section 12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following
provisions of the Constitution:
a. Article VI, Section 28(1), and
b. Article III, Section 1
A. Due Process and Equal Protection Clauses
Petitioners Association of Pilipinas Shell Dealers, Inc., et al. argue that Section 8 of R.A. No.
9337, amending Sections 110 (A)(2), 110 (B), and Section 12 of R.A. No. 9337, amending
Section 114 (C) of the NIRC are arbitrary, oppressive, excessive and confiscatory. Their
argument is premised on the constitutional right against deprivation of life, liberty of property
without due process of law, as embodied in Article III, Section 1 of the Constitution.
Petitioners also contend that these provisions violate the constitutional guarantee of equal
protection of the law.
The doctrine is that where the due process and equal protection clauses are invoked,
considering that they are not fixed rules but rather broad standards, there is a need for proof of
such persuasive character as would lead to such a conclusion. Absent such a showing, the
presumption of validity must prevail.68
Section 8 of R.A. No. 9337, amending Section 110(B) of the NIRC imposes a limitation on the
amount of input tax that may be credited against the output tax. It states, in part: "[P]rovided, that
the input tax inclusive of the input VAT carried over from the previous quarter that may be
credited in every quarter shall not exceed seventy percent (70%) of the output VAT: …"
Input Tax is defined under Section 110(A) of the NIRC, as amended, as the value-added tax
due from or paid by a VAT-registered person on the importation of goods or local purchase of
good and services, including lease or use of property, in the course of trade or business, from a
VAT-registered person, and Output Tax is the value-added tax due on the sale or lease of
taxable goods or properties or services by any person registered or required to register under
the law.
Petitioners claim that the contested sections impose limitations on the amount of input tax that
may be claimed. In effect, a portion of the input tax that has already been paid cannot now be
credited against the output tax.
Petitioners’ argument is not absolute. It assumes that the input tax exceeds 70% of the output
tax, and therefore, the input tax in excess of 70% remains uncredited. However, to the extent
that the input tax is less than 70% of the output tax, then 100% of such input tax is still
creditable.
More importantly, the excess input tax, if any, is retained in a business’s books of accounts and
remains creditable in the succeeding quarter/s. This is explicitly allowed by Section 110(B),
which provides that "if the input tax exceeds the output tax, the excess shall be carried over to
the succeeding quarter or quarters." In addition, Section 112(B) allows a VAT-registered person
to apply for the issuance of a tax credit certificate or refund for any unused input taxes, to the
extent that such input taxes have not been applied against the output taxes. Such unused input
tax may be used in payment of his other internal revenue taxes.
The non-application of the unutilized input tax in a given quarter is not ad infinitum, as petitioners
exaggeratedly contend. Their analysis of the effect of the 70% limitation is incomplete and one-
sided. It ends at the net effect that there will be unapplied/unutilized inputs VAT for a given
quarter. It does not proceed further to the fact that such unapplied/unutilized input tax may be
credited in the subsequent periods as allowed by the carry-over provision of Section 110(B) or
that it may later on be refunded through a tax credit certificate under Section 112(B).
Therefore, petitioners’ argument must be rejected.
On the other hand, it appears that petitioner Garcia failed to comprehend the operation of the
70% limitation on the input tax. According to petitioner, the limitation on the creditable input tax
in effect allows VAT-registered establishments to retain a portion of the taxes they collect, which
violates the principle that tax collection and revenue should be for public purposes and
expenditures
As earlier stated, the input tax is the tax paid by a person, passed on to him by the seller, when
he buys goods. Output tax meanwhile is the tax due to the person when he sells goods. In
computing the VAT payable, three possible scenarios may arise:
First, if at the end of a taxable quarter the output taxes charged by the seller are equal to the
input taxes that he paid and passed on by the suppliers, then no payment is required;
Second, when the output taxes exceed the input taxes, the person shall be liable for the excess,
which has to be paid to the Bureau of Internal Revenue (BIR);69 and
Third, if the input taxes exceed the output taxes, the excess shall be carried over to the
succeeding quarter or quarters. Should the input taxes result from zero-rated or effectively zero-
rated transactions, any excess over the output taxes shall instead be refunded to the taxpayer or
credited against other internal revenue taxes, at the taxpayer’s option. 70
Section 8 of R.A. No. 9337 however, imposed a 70% limitation on the input tax. Thus, a person
can credit his input tax only up to the extent of 70% of the output tax. In layman’s term, the
value-added taxes that a person/taxpayer paid and passed on to him by a seller can only be
credited up to 70% of the value-added taxes that is due to him on a taxable transaction. There is
no retention of any tax collection because the person/taxpayer has already previously paid the
input tax to a seller, and the seller will subsequently remit such input tax to the BIR. The party
directly liable for the payment of the tax is the seller.71 What only needs to be done is for the
person/taxpayer to apply or credit these input taxes, as evidenced by receipts, against his output
taxes.
Petitioners Association of Pilipinas Shell Dealers, Inc., et al. also argue that the input tax
partakes the nature of a property that may not be confiscated, appropriated, or limited without
due process of law.
The input tax is not a property or a property right within the constitutional purview of the due
process clause. A VAT-registered person’s entitlement to the creditable input tax is a mere
statutory privilege.
The distinction between statutory privileges and vested rights must be borne in mind for persons
have no vested rights in statutory privileges. The state may change or take away rights, which
were created by the law of the state, although it may not take away property, which was vested
by virtue of such rights.72
Under the previous system of single-stage taxation, taxes paid at every level of distribution are
not recoverable from the taxes payable, although it becomes part of the cost, which is deductible
from the gross revenue. When Pres. Aquino issued E.O. No. 273 imposing a 10% multi-stage
tax on all sales, it was then that the crediting of the input tax paid on purchase or importation of
goods and services by VAT-registered persons against the output tax was introduced. 73 This
was adopted by the Expanded VAT Law (R.A. No. 7716),74 and The Tax Reform Act of 1997
(R.A. No. 8424).75 The right to credit input tax as against the output tax is clearly a privilege
created by law, a privilege that also the law can remove, or in this case, limit.
Petitioners also contest as arbitrary, oppressive, excessive and confiscatory, Section 8 of R.A.
No. 9337, amending Section 110(A) of the NIRC, which provides:
SEC. 110. Tax Credits. –
(A) Creditable Input Tax. – …
Provided, That the input tax on goods purchased or imported in a calendar month for use in
trade or business for which deduction for depreciation is allowed under this Code, shall be
spread evenly over the month of acquisition and the fifty-nine (59) succeeding months if the
aggregate acquisition cost for such goods, excluding the VAT component thereof, exceeds One
million pesos (₱1,000,000.00): Provided, however, That if the estimated useful life of the capital
goods is less than five (5) years, as used for depreciation purposes, then the input VAT shall be
spread over such a shorter period: Provided, finally, That in the case of purchase of services,
lease or use of properties, the input tax shall be creditable to the purchaser, lessee or license
upon payment of the compensation, rental, royalty or fee.
The foregoing section imposes a 60-month period within which to amortize the creditable input
tax on purchase or importation of capital goods with acquisition cost of ₱1 Million pesos,
exclusive of the VAT component. Such spread out only poses a delay in the crediting of the input
tax. Petitioners’ argument is without basis because the taxpayer is not permanently deprived of
his privilege to credit the input tax.
It is worth mentioning that Congress admitted that the spread-out of the creditable input tax in
this case amounts to a 4-year interest-free loan to the government.76 In the same breath,
Congress also justified its move by saying that the provision was designed to raise an annual
revenue of 22.6 billion.77 The legislature also dispelled the fear that the provision will fend off
foreign investments, saying that foreign investors have other tax incentives provided by law, and
citing the case of China, where despite a 17.5% non-creditable VAT, foreign investments were
not deterred.78 Again, for whatever is the purpose of the 60-month amortization, this involves
executive economic policy and legislative wisdom in which the Court cannot intervene.
With regard to the 5% creditable withholding tax imposed on payments made by the government
for taxable transactions, Section 12 of R.A. No. 9337, which amended Section 114 of the NIRC,
reads:
SEC. 114. Return and Payment of Value-added Tax. –
(C) Withholding of Value-added Tax. – The Government or any of its political subdivisions,
instrumentalities or agencies, including government-owned or controlled corporations (GOCCs)
shall, before making payment on account of each purchase of goods and services which are
subject to the value-added tax imposed in Sections 106 and 108 of this Code, deduct and
withhold a final value-added tax at the rate of five percent (5%) of the gross payment thereof:
Provided, That the payment for lease or use of properties or property rights to nonresident
owners shall be subject to ten percent (10%) withholding tax at the time of payment. For
purposes of this Section, the payor or person in control of the payment shall be considered as
the withholding agent.
The value-added tax withheld under this Section shall be remitted within ten (10) days following
the end of the month the withholding was made.
Section 114(C) merely provides a method of collection, or as stated by respondents, a more
simplified VAT withholding system. The government in this case is constituted as a withholding
agent with respect to their payments for goods and services.
Prior to its amendment, Section 114(C) provided for different rates of value-added taxes to be
withheld -- 3% on gross payments for purchases of goods; 6% on gross payments for services
supplied by contractors other than by public works contractors; 8.5% on gross payments for
services supplied by public work contractors; or 10% on payment for the lease or use of
properties or property rights to nonresident owners. Under the present Section 114(C), these
different rates, except for the 10% on lease or property rights payment to nonresidents, were
deleted, and a uniform rate of 5% is applied.
The Court observes, however, that the law the used the word final. In tax usage, final, as
opposed to creditable, means full. Thus, it is provided in Section 114(C): "final value-added tax
at the rate of five percent (5%)."
In Revenue Regulations No. 02-98, implementing R.A. No. 8424 (The Tax Reform Act of 1997),
the concept of final withholding tax on income was explained, to wit:
SECTION 2.57. Withholding of Tax at Source
(A) Final Withholding Tax. – Under the final withholding tax system the amount of income tax
withheld by the withholding agent is constituted as full and final payment of the income tax due
from the payee on the said income. The liability for payment of the tax rests primarily on the
payor as a withholding agent. Thus, in case of his failure to withhold the tax or in case of
underwithholding, the deficiency tax shall be collected from the payor/withholding agent. …
(B) Creditable Withholding Tax. – Under the creditable withholding tax system, taxes withheld on
certain income payments are intended to equal or at least approximate the tax due of the payee
on said income. … Taxes withheld on income payments covered by the expanded withholding
tax (referred to in Sec. 2.57.2 of these regulations) and compensation income (referred to in
Sec. 2.78 also of these regulations) are creditable in nature.
As applied to value-added tax, this means that taxable transactions with the government are
subject to a 5% rate, which constitutes as full payment of the tax payable on the transaction.
This represents the net VAT payable of the seller. The other 5% effectively accounts for the
standard input VAT (deemed input VAT), in lieu of the actual input VAT directly or attributable to
the taxable transaction.79
The Court need not explore the rationale behind the provision. It is clear that Congress intended
to treat differently taxable transactions with the government.80 This is supported by the fact that
under the old provision, the 5% tax withheld by the government remains creditable against the
tax liability of the seller or contractor, to wit:
SEC. 114. Return and Payment of Value-added Tax. –
(C) Withholding of Creditable Value-added Tax. – The Government or any of its political
subdivisions, instrumentalities or agencies, including government-owned or controlled
corporations (GOCCs) shall, before making payment on account of each purchase of goods
from sellers and services rendered by contractors which are subject to the value-added tax
imposed in Sections 106 and 108 of this Code, deduct and withhold the value-added tax due at
the rate of three percent (3%) of the gross payment for the purchase of goods and six percent
(6%) on gross receipts for services rendered by contractors on every sale or installment
payment which shall be creditable against the value-added tax liability of the seller or
contractor: Provided, however, That in the case of government public works contractors, the
withholding rate shall be eight and one-half percent (8.5%): Provided, further, That the payment
for lease or use of properties or property rights to nonresident owners shall be subject to ten
percent (10%) withholding tax at the time of payment. For this purpose, the payor or person in
control of the payment shall be considered as the withholding agent.
The valued-added tax withheld under this Section shall be remitted within ten (10) days following
the end of the month the withholding was made. (Emphasis supplied)
As amended, the use of the word final and the deletion of the word creditable exhibits
Congress’s intention to treat transactions with the government differently. Since it has not been
shown that the class subject to the 5% final withholding tax has been unreasonably narrowed,
there is no reason to invalidate the provision. Petitioners, as petroleum dealers, are not the only
ones subjected to the 5% final withholding tax. It applies to all those who deal with the
government.
Moreover, the actual input tax is not totally lost or uncreditable, as petitioners believe. Revenue
Regulations No. 14-2005 or the Consolidated Value-Added Tax Regulations 2005 issued by the
BIR, provides that should the actual input tax exceed 5% of gross payments, the excess may
form part of the cost. Equally, should the actual input tax be less than 5%, the difference is
treated as income.81
Petitioners also argue that by imposing a limitation on the creditable input tax, the government
gets to tax a profit or value-added even if there is no profit or value-added.
Petitioners’ stance is purely hypothetical, argumentative, and again, one-sided. The Court will
not engage in a legal joust where premises are what ifs, arguments, theoretical and facts,
uncertain. Any disquisition by the Court on this point will only be, as Shakespeare describes life
in Macbeth,82 "full of sound and fury, signifying nothing."
What’s more, petitioners’ contention assumes the proposition that there is no profit or value-
added. It need not take an astute businessman to know that it is a matter of exception that a
business will sell goods or services without profit or value-added. It cannot be overstressed that
a business is created precisely for profit.
The equal protection clause under the Constitution means that "no person or class of persons
shall be deprived of the same protection of laws which is enjoyed by other persons or other
classes in the same place and in like circumstances."83
The power of the State to make reasonable and natural classifications for the purposes of
taxation has long been established. Whether it relates to the subject of taxation, the kind of
property, the rates to be levied, or the amounts to be raised, the methods of assessment,
valuation and collection, the State’s power is entitled to presumption of validity. As a rule, the
judiciary will not interfere with such power absent a clear showing of unreasonableness,
discrimination, or arbitrariness.84
Petitioners point out that the limitation on the creditable input tax if the entity has a high ratio of
input tax, or invests in capital equipment, or has several transactions with the government, is not
based on real and substantial differences to meet a valid classification.
The argument is pedantic, if not outright baseless. The law does not make any classification in
the subject of taxation, the kind of property, the rates to be levied or the amounts to be raised,
the methods of assessment, valuation and collection. Petitioners’ alleged distinctions are based
on variables that bear different consequences. While the implementation of the law may yield
varying end results depending on one’s profit margin and value-added, the Court cannot go
beyond what the legislature has laid down and interfere with the affairs of business.
The equal protection clause does not require the universal application of the laws on all persons
or things without distinction. This might in fact sometimes result in unequal protection. What the
clause requires is equality among equals as determined according to a valid classification. By
classification is meant the grouping of persons or things similar to each other in certain
particulars and different from all others in these same particulars. 85
Petitioners brought to the Court’s attention the introduction of Senate Bill No. 2038 by Sens. S.R.
Osmeña III and Ma. Ana Consuelo A.S. – Madrigal on June 6, 2005, and House Bill No. 4493 by
Rep. Eric D. Singson. The proposed legislation seeks to amend the 70% limitation by increasing
the same to 90%. This, according to petitioners, supports their stance that the 70% limitation is
arbitrary and confiscatory. On this score, suffice it to say that these are still proposed
legislations. Until Congress amends the law, and absent any unequivocal basis for its
unconstitutionality, the 70% limitation stays.
B. Uniformity and Equitability of Taxation
Article VI, Section 28(1) of the Constitution reads:
The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive
system of taxation.
Uniformity in taxation means that all taxable articles or kinds of property of the same class shall
be taxed at the same rate. Different articles may be taxed at different amounts provided that the
rate is uniform on the same class everywhere with all people at all times. 86
In this case, the tax law is uniform as it provides a standard rate of 0% or 10% (or 12%) on all
goods and services. Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and
108, respectively, of the NIRC, provide for a rate of 10% (or 12%) on sale of goods and
properties, importation of goods, and sale of services and use or lease of properties. These
same sections also provide for a 0% rate on certain sales and transaction.
Neither does the law make any distinction as to the type of industry or trade that will bear the
70% limitation on the creditable input tax, 5-year amortization of input tax paid on purchase of
capital goods or the 5% final withholding tax by the government. It must be stressed that the rule
of uniform taxation does not deprive Congress of the power to classify subjects of taxation, and
only demands uniformity within the particular class.87
R.A. No. 9337 is also equitable. The law is equipped with a threshold margin. The VAT rate of
0% or 10% (or 12%) does not apply to sales of goods or services with gross annual sales or
receipts not exceeding ₱1,500,000.00.88Also, basic marine and agricultural food products in their
original state are still not subject to the tax,89 thus ensuring that prices at the grassroots level will
remain accessible. As was stated in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas,
Inc. vs. Tan:90
The disputed sales tax is also equitable. It is imposed only on sales of goods or services by
persons engaged in business with an aggregate gross annual sales exceeding ₱200,000.00.
Small corner sari-sari stores are consequently exempt from its application. Likewise exempt from
the tax are sales of farm and marine products, so that the costs of basic food and other
necessities, spared as they are from the incidence of the VAT, are expected to be relatively
lower and within the reach of the general public.
It is admitted that R.A. No. 9337 puts a premium on businesses with low profit margins, and
unduly favors those with high profit margins. Congress was not oblivious to this. Thus, to
equalize the weighty burden the law entails, the law, under Section 116, imposed a 3%
percentage tax on VAT-exempt persons under Section 109(v), i.e., transactions with gross
annual sales and/or receipts not exceeding ₱1.5 Million. This acts as a equalizer because in
effect, bigger businesses that qualify for VAT coverage and VAT-exempt taxpayers stand on
equal-footing.
Moreover, Congress provided mitigating measures to cushion the impact of the imposition of the
tax on those previously exempt. Excise taxes on petroleum products91 and natural gas92 were
reduced. Percentage tax on domestic carriers was removed. 93 Power producers are now exempt
from paying franchise tax.94
Aside from these, Congress also increased the income tax rates of corporations, in order to
distribute the burden of taxation. Domestic, foreign, and non-resident corporations are now
subject to a 35% income tax rate, from a previous 32%.95 Intercorporate dividends of non-
resident foreign corporations are still subject to 15% final withholding tax but the tax credit
allowed on the corporation’s domicile was increased to 20%. 96 The Philippine Amusement and
Gaming Corporation (PAGCOR) is not exempt from income taxes anymore. 97 Even the sale by
an artist of his works or services performed for the production of such works was not spared.
All these were designed to ease, as well as spread out, the burden of taxation, which would
otherwise rest largely on the consumers. It cannot therefore be gainsaid that R.A. No. 9337 is
equitable.
C. Progressivity of Taxation
Lastly, petitioners contend that the limitation on the creditable input tax is anything but
regressive. It is the smaller business with higher input tax-output tax ratio that will suffer the
consequences.
Progressive taxation is built on the principle of the taxpayer’s ability to pay. This principle was
also lifted from Adam Smith’s Canons of Taxation, and it states:
I. The subjects of every state ought to contribute towards the support of the government, as
nearly as possible, in proportion to their respective abilities; that is, in proportion to the revenue
which they respectively enjoy under the protection of the state.
Taxation is progressive when its rate goes up depending on the resources of the person
affected.98
The VAT is an antithesis of progressive taxation. By its very nature, it is regressive. The principle
of progressive taxation has no relation with the VAT system inasmuch as the VAT paid by the
consumer or business for every goods bought or services enjoyed is the same regardless of
income. In
other words, the VAT paid eats the same portion of an income, whether big or small. The
disparity lies in the income earned by a person or profit margin marked by a business, such that
the higher the income or profit margin, the smaller the portion of the income or profit that is eaten
by VAT. A converso, the lower the income or profit margin, the bigger the part that the VAT eats
away. At the end of the day, it is really the lower income group or businesses with low-profit
margins that is always hardest hit.
Nevertheless, the Constitution does not really prohibit the imposition of indirect taxes, like the
VAT. What it simply provides is that Congress shall "evolve a progressive system of taxation."
The Court stated in the Tolentino case, thus:
The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are
regressive. What it simply provides is that Congress shall ‘evolve a progressive system of
taxation.’ The constitutional provision has been interpreted to mean simply that ‘direct taxes are .
. . to be preferred [and] as much as possible, indirect taxes should be minimized.’ (E.
FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 221 (Second ed. 1977)) Indeed, the
mandate to Congress is not to prescribe, but to evolve, a progressive tax system. Otherwise,
sales taxes, which perhaps are the oldest form of indirect taxes, would have been prohibited with
the proclamation of Art. VIII, §17 (1) of the 1973 Constitution from which the present Art. VI, §28
(1) was taken. Sales taxes are also regressive.
Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not
impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In
the case of the VAT, the law minimizes the regressive effects of this imposition by providing for
zero rating of certain transactions (R.A. No. 7716, §3, amending §102 (b) of the NIRC), while
granting exemptions to other transactions. (R.A. No. 7716, §4 amending §103 of the NIRC)99
CONCLUSION
It has been said that taxes are the lifeblood of the government. In this case, it is just an enema, a
first-aid measure to resuscitate an economy in distress. The Court is neither blind nor is it turning
a deaf ear on the plight of the masses. But it does not have the panacea for the malady that the
law seeks to remedy. As in other cases, the Court cannot strike down a law as unconstitutional
simply because of its yokes.
Let us not be overly influenced by the plea that for every wrong there is a remedy, and that the
judiciary should stand ready to afford relief. There are undoubtedly many wrongs the judicature
may not correct, for instance, those involving political questions. . . .
Let us likewise disabuse our minds from the notion that the judiciary is the repository of
remedies for all political or social ills; We should not forget that the Constitution has judiciously
allocated the powers of government to three distinct and separate compartments; and that
judicial interpretation has tended to the preservation of the independence of the three, and a
zealous regard of the prerogatives of each, knowing full well that one is not the guardian of the
others and that, for official wrong-doing, each may be brought to account, either by
impeachment, trial or by the ballot box.100
The words of the Court in Vera vs. Avelino101 holds true then, as it still holds true now. All things
considered, there is no raison d'être for the unconstitutionality of R.A. No. 9337.
WHEREFORE, Republic Act No. 9337 not being unconstitutional, the petitions in G.R. Nos.
168056, 168207, 168461, 168463, and 168730, are hereby DISMISSED.
There being no constitutional impediment to the full enforcement and implementation of R.A. No.
9337, the temporary restraining order issued by the Court on July 1, 2005 is LIFTED upon
finality of herein decision.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M.
ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary
of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner,
Secretary of National Defense and Chief of Staff, respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7),
dismissed the petition, after finding that the President did not act arbitrarily or with grave abuse
of discretion in determining that the return of former President Marcos and his family at the
present time and under present circumstances pose a threat to national interest and welfare and
in prohibiting their return to the Philippines. On September 28, 1989, former President Marcos
died in Honolulu, Hawaii. In a statement, President Aquino said:
In the interest of the safety of those who will take the death of Mr. Marcos in
widely and passionately conflicting ways, and for the tranquility of the state
and order of society, the remains of Ferdinand E. Marcos will not be allowed
to be brought to our country until such time as the government, be it under
this administration or the succeeding one, shall otherwise decide. [Motion
for Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following
major arguments:
1. to bar former President Marcos and his family from returning to the Philippines is to deny them
not only the inherent right of citizens to return to their country of birth but also the protection of
the Constitution and all of the rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she had
exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President Marcos. Thus,
petitioners prayed that the Court reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene
M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the
Philippines, and enjoin respondents from implementing President Aquino's decision to bar the
return of the remains of Mr. Marcos, and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued that the motion for
reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that
"the 'formal' rights being invoked by the Marcoses under the label 'right to return', including the
label 'return of Marcos' remains, is in reality or substance a 'right' to destabilize the country, a
'right' to hide the Marcoses' incessant shadowy orchestrated efforts at destabilization."
[Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is upon the
movants, petitioner herein, to show that there are compelling reasons to reconsider the decision
of the Court.
2. After a thorough consideration of the matters raised in the motion for reconsideration, the
Court is of the view that no compelling reasons have been established by petitioners to warrant
a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed
the factual scenario under which the Court's decision was rendered. The threats to the
government, to which the return of the Marcoses has been viewed to provide a catalytic effect,
have not been shown to have ceased. On the contrary, instead of erasing fears as to the
destabilization that will be caused by the return of the Marcoses, Mrs. Marcos reinforced the
basis for the decision to bar their return when she called President Aquino "illegal," claiming that
it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and declared
that the matter "should be brought to all the courts of the world." [Comment, p. 1; Philippine Star,
October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding
the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers
of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a
limitation of specific power of the President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power.
That the President has powers other than those expressly stated in the Constitution is nothing
new. This is recognized under the U.S. Constitution from which we have patterned the
distribution of governmental powers among three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be vested in
a President of the United States of America." In Alexander Hamilton's widely
accepted view, this statement cannot be read as mere shorthand for the
specific executive authorizations that follow it in [sections] 2 and 3. Hamilton
stressed the difference between the sweeping language of article II, section
1, and the conditional language of article I, [section] 1: "All legislative
Powers herein granted shall be vested in a Congress of the United States . .
." Hamilton submitted that "[t]he [article III enumeration [in sections 2 and 31
ought therefore to be considered, as intended merely to specify the principal
articles implied in the definition of execution power; leaving the rest to flow
from the general grant of that power, interpreted in confomity with other
parts of the Constitution...
In Myers v. United States, the Supreme Court — accepted Hamilton's
proposition, concluding that the federal executive, unlike the Congress,
could exercise power from sources not enumerated, so long as not
forbidden by the constitutional text: the executive power was given in
general terms, strengthened by specific terms where emphasis was
regarded as appropriate, and was limited by direct expressions where
limitation was needed. . ." The language of Chief Justice Taft in Myers
makes clear that the constitutional concept of inherent power is not a
synonym for power without limit; rather, the concept suggests only that not
all powers granted in the Constitution are themselves exhausted by internal
enumeration, so that, within a sphere properly regarded as one of
"executive' power, authority is implied unless there or elsewhere expressly
limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the President's implied or residual
powers is tantamount to setting the stage for another dictatorship. Despite petitioners' strained
analogy, the residual powers of the President under the Constitution should not be confused with
the power of the President under the 1973 Constitution to legislate pursuant to Amendment No.
6 which provides:
 Whenever in the judgment of the President (Prime Minister), there exists a
grave emergency or a threat or imminence thereof, or whenever
the interim Batasang Pambansa or the regular National Assembly fails or is
unable to act adequately on any matter for any reason that in his judgment
requires immediate action, he may, in order to meet the exigency, issue the
necessary decrees, orders, or letters of instruction, which shall form part of
the law of the land,
There is no similarity between the residual powers of the President under the 1987 Constitution
and the power of the President under the 1973 Constitution pursuant to Amendment No. 6. First
of all, Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment
No. 6 refers to a grant to the President of the specific power of legislation.
4. Among the duties of the President under the Constitution, in compliance with his (or her) oath
of office, is to protect and promote the interest and welfare of the people. Her decision to bar the
return of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and
under present circumstances is in compliance with this bounden duty. In the absence of a clear
showing that she had acted with arbitrariness or with grave abuse of discretion in arriving at this
decision, the Court will not enjoin the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my vote for granting the petition. The death of
Marcos has not plunged the nation into paroxysms of grief as the so-called "loyalists" had
hoped. By and large, it has been met with only passing interest if not outright indifference from
the people. Clearly, the discredited dictator is in death no El Cid. Marcos dead is only an
unpleasant memory, not a bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when he was already
moribund that feeble threat has died with him. As the government stresses, he has been
reduced to a non-person (which makes me wonder why it is still afraid of him). His cadaver is not
even regarded as a symbol of this or that or whatever except by his fanatical followers. It is only
a dead body waiting to be interred in this country.
This is a tempest in a teapot. We have more important things to do than debating over a corpse
that deserves no kinder fate than dissolution and oblivion. I say let it be brought home and
buried deep and let us be done with it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It is not
correct to say that a dead man, since he is no longer a human being, has ceased to have rights.
For instance, our Revised Penal Code prohibits the commission of libel against a deceased
individual. And even if we were to assume the non- existence anymore of his human rights what
about the human rights of his widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or
political and military destabilization. In fact, the converse appears to be nearer the truth, that is, if
we do not allow the remains to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted.
To refuse the request can mean a hardening of resistance against the well-intentioned aim of the
administration. Upon the other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare
once wrote "the quality of mercy is not strained." Surely, compassion is the better part of
government. Remove mercy, and you remove the best reason against civil strife, which if not
abated can turn our country into a mainstream of fiery dissent and in the end, as one great man
has put it, the question will no longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after decision in this
case had been rendered, was pre-empted and foreseen in my original dissenting opinion. There
I said that the first cogent and decisive proposition in this case is that "Mr. Marcos is
a Filipino and, as such, entitled to return to, die and be buriedin this country." I have only to add
a few statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and
die in this country, The remaining right of this Filipino that cries out for vindication at this late
hour is the right to be buried in this country. Will the respondents be allowed to complete the
circle of denying the constitutional and human right of Mr. Marcos to travel which, as stated in
my dissenting opinion, includes the right to return to, die and be buried in this country? The
answer should be in the negative if the Constitution is to still prevail; the answer should be in the
negative if we are to avoid the completely indefensible act of denying a Filipino the last right to
blend his mortal remains with a few square feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that can be accorded
him now say that the constitutional and human right to be buried in this country would apply to
any Filipino, except Mr. Marcos, because he was a dictator and he plundered the country. This is
the most irrelevant argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its guarantees apply
to all Filipinos, whether dictator or pauper, learned or ignorant, religious or agnostic as long as
he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a serious
threat to national security and public safety. What threat? As pointed out in my dissenting
opinion, the second cogent and decisive proposition in this case is that respondents have not
presented any "hard evidence" (factual bases) or convincing proof of such threat. "All we have
are general conclusions of national security and public safety' in avoidance of a specific,
demandable and enforceable constitutional and basic human right to return." Recent events
have, to my mind, served to confirm the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be
buried into mother earth, where there are no protests, "demos", or even dissents, where the rule
that reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the
graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without
merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with Marcos
deprived of his right to burial in this country. On the other hand, if the remains of Mr. Marcos are
brought to the country and allowed the burial to which he is constitutionally and humanly entitled,
Marcos' supporters would be deprived of an otherwise potent argument—so conducive to mass
protests and even violence—that their Idol has been cruelly denied the right to be buried in his
homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak
of. This contention entirely begs the issue. In the first place, one cannot overlook that the right of
Mr. Marcos, as a Filipino, to be buried in this country, is asserted not for the first time after his
death. It was vigorously asserted long before his death. But, more importantly, the right of every
Filipino to be buried in his country, is part of a continuing right that starts from birth and ends
only on the day he is finally laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as
a fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country
NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way
affecting my respect and regard for my brethren and sisters in the majority, I am deeply
concerned and greatly disturbed that, with their decision banning a dead Marcos from burial in
this country, they have passed an opportunity to defuse a constitutional crisis that, in my humble
assessment, threatens to ignite an already divided nation, Regrettably, they have ignored the
constitutional dimension of the problem rooted in the ageless and finest tradition of our people
for respect and deference to the dead. What predictably follows will be a continuing strife,
among our people, of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return and burial in
the Republic of the Philippines of former President Ferdinand E. Marcos, subject to such
conditions as the Philippine government may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated
before, I can not allow personal emotions to soften my "hardened impartiality" and deny, as a
consequence, the rights of the ex-President's bereaved to bury his remains in his homeland, and
for them to return from exile. As I had, then, voted to grant the petition, so do I vote to grant
reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by
implication, the President's supposed "residual" power to forbid citizens from entering the
motherland reiterated in the resolution of the majority. I have found none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon
whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her
to comply with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in the article on
the Executive Department and in scattered provisions of the Constitution.
This, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the President as a
reaction to the abuses under the regime of Mr. Marcos, for the result was a
limitation of specific powers of the President, particularly those relating to
the commander-in-chief clause, but not a diminution of the general grant of
executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power.
The Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law.
Had the fundamental law intended a presidential imprimatur, it would have said so. It would have
also completed the symmetry: judicial, congressional, and executive restraints on the right. No
amount of presumed residual executive power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And
especially so, because the President is the caretaker of the military establishment that has,
several times over, been unkind to part of the population it has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of
conjecture, speculation, and imagination. The military has shown no hard evidence that "the
return of the Marcoses" would indeed interpose a threat to national security. And apparently, the
majority itself is not convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does
not, so I submit, reinforce alleged fears of a massive destabilization awaiting the nation. The
military has said over and over that Marcos followers are not capable of successful
destabilization effort. And only this morning (October 27, 1989), media reported the assurances
given to foreign investors by no less than the President, of the political and economic stability of
the nation, as well as the Government's capability to quell forces that menace the gains of
EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are
beside the point. I reiterate that the President has no power to deny requests of Marcos relatives
to bury Marcos in his homeland. As for the former, let them get their just deserts here too. And
let the matter rest.
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my vote for granting the petition. The death of
Marcos has not plunged the nation into paroxysms of grief as the so-called "loyalists" had
hoped. By and large, it has been met with only passing interest if not outright indifference from
the people. Clearly, the discredited dictator is in death no El Cid. Marcos dead is only an
unpleasant memory, not a bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when he was already
moribund that feeble threat has died with him. As the government stresses, he has been
reduced to a non-person (which makes me wonder why it is still afraid of him). His cadaver is not
even regarded as a symbol of this or that or whatever except by his fanatical followers. It is only
a dead body waiting to be interred in this country.
This is a tempest in a teapot. We have more important things to do than debating over a corpse
that deserves no kinder fate than dissolution and oblivion. I say let it be brought home and
buried deep and let us be done with it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It is not
correct to say that a dead man, since he is no longer a human being, has ceased to have rights.
For instance, our Revised Penal Code prohibits the commission of libel against a deceased
individual. And even if we were to assume the non- existence anymore of his human rights what
about the human rights of his widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or
political and military destabilization. In fact, the converse appears to be nearer the truth, that is, if
we do not allow the remains to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted.
To refuse the request can mean a hardening of resistance against the well-intentioned aim of the
administration. Upon the other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare
once wrote "the quality of mercy is not strained." Surely, compassion is the better part of
government. Remove mercy, and you remove the best reason against civil strife, which if not
abated can turn our country into a mainstream of fiery dissent and in the end, as one great man
has put it, the question will no longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after decision in this
case had been rendered, was pre-empted and foreseen in my original dissenting opinion. There
I said that the first cogent and decisive proposition in this case is that "Mr. Marcos is
a Filipino and, as such, entitled to return to, die and be buriedin this country." I have only to add
a few statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and
die in this country, The remaining right of this Filipino that cries out for vindication at this late
hour is the right to be buried in this country. Will the respondents be allowed to complete the
circle of denying the constitutional and human right of Mr. Marcos to travel which, as stated in
my dissenting opinion, includes the right to return to, die and be buried in this country? The
answer should be in the negative if the Constitution is to still prevail; the answer should be in the
negative if we are to avoid the completely indefensible act of denying a Filipino the last right to
blend his mortal remains with a few square feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that can be accorded
him now say that the constitutional and human right to be buried in this country would apply to
any Filipino, except Mr. Marcos, because he was a dictator and he plundered the country. This is
the most irrelevant argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its guarantees apply
to all Filipinos, whether dictator or pauper, learned or ignorant, religious or agnostic as long as
he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a serious
threat to national security and public safety. What threat? As pointed out in my dissenting
opinion, the second cogent and decisive proposition in this case is that respondents have not
presented any "hard evidence" (factual bases) or convincing proof of such threat. "All we have
are general conclusions of national security and public safety' in avoidance of a specific,
demandable and enforceable constitutional and basic human right to return." Recent events
have, to my mind, served to confirm the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be
buried into mother earth, where there are no protests, "demos", or even dissents, where the rule
that reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the
graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without
merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with Marcos
deprived of his right to burial in this country. On the other hand, if the remains of Mr. Marcos are
brought to the country and allowed the burial to which he is constitutionally and humanly entitled,
Marcos' supporters would be deprived of an otherwise potent argument—so conducive to mass
protests and even violence—that their Idol has been cruelly denied the right to be buried in his
homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak
of. This contention entirely begs the issue. In the first place, one cannot overlook that the right of
Mr. Marcos, as a Filipino, to be buried in this country, is asserted not for the first time after his
death. It was vigorously asserted long before his death. But, more importantly, the right of every
Filipino to be buried in his country, is part of a continuing right that starts from birth and ends
only on the day he is finally laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as
a fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country
NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way
affecting my respect and regard for my brethren and sisters in the majority, I am deeply
concerned and greatly disturbed that, with their decision banning a dead Marcos from burial in
this country, they have passed an opportunity to defuse a constitutional crisis that, in my humble
assessment, threatens to ignite an already divided nation, Regrettably, they have ignored the
constitutional dimension of the problem rooted in the ageless and finest tradition of our people
for respect and deference to the dead. What predictably follows will be a continuing strife,
among our people, of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return and burial in
the Republic of the Philippines of former President Ferdinand E. Marcos, subject to such
conditions as the Philippine government may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated
before, I can not allow personal emotions to soften my "hardened impartiality" and deny, as a
consequence, the rights of the ex-President's bereaved to bury his remains in his homeland, and
for them to return from exile. As I had, then, voted to grant the petition, so do I vote to grant
reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by
implication, the President's supposed "residual" power to forbid citizens from entering the
motherland reiterated in the resolution of the majority. I have found none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon
whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her
to comply with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in the article on
the Executive Department and in scattered provisions of the Constitution.
This, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the President as a
 reaction to the abuses under the regime of Mr. Marcos, for the result was a
limitation of specific powers of the President, particularly those relating to
the commander-in-chief clause, but not a diminution of the general grant of
executive power.

It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power.
The Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law.
Had the fundamental law intended a presidential imprimatur, it would have said so. It would have
also completed the symmetry: judicial, congressional, and executive restraints on the right. No
amount of presumed residual executive power can amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And
especially so, because the President is the caretaker of the military establishment that has,
several times over, been unkind to part of the population it has also sworn to protect.

That "[t]he threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of
conjecture, speculation, and imagination. The military has shown no hard evidence that "the
return of the Marcoses" would indeed interpose a threat to national security. And apparently, the
majority itself is not convinced ("has been viewed...").

That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does
not, so I submit, reinforce alleged fears of a massive destabilization awaiting the nation. The
military has said over and over that Marcos followers are not capable of successful
destabilization effort. And only this morning (October 27, 1989), media reported the assurances
given to foreign investors by no less than the President, of the political and economic stability of
the nation, as well as the Government's capability to quell forces that menace the gains of
EDSA.

I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are
beside the point. I reiterate that the President has no power to deny requests of Marcos relatives
to bury Marcos in his homeland. As for the former, let them get their just deserts here too. And
let the matter rest.
 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,

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
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.

G.R. No. 169660 April 20, 2006 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
FRANCISCO I. CHAVEZ, Petitioner, presumption of constitutionality. Once the challenged order is found to be indeed violative of the
vs. Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in of the sovereign will of the Filipino people, must prevail over any issuance of the government
his capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP that contravenes its mandates.
Chief of Staff, Respondents.
In the exercise of its legislative power, the Senate of the Philippines, through its various Senate
x-------------------------x 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
G.R. No. 169667 April 20, 2006 including those employed in Government Owned and Controlled Corporations, the Armed
Forces of the Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to
various officials of the Executive Department for them to appear on September 29, 2005 as
resource speakers in a public hearing on the railway project of the North Luzon Railways
Corporation with the China National Machinery and Equipment Group (hereinafter North Rail
Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile
urging the Senate to investigate the alleged overpricing and other unlawful provisions of the
contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued invitations 2 dated
September 22, 2005 to the following officials of the AFP: the Commanding General of the
Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral
Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R.
Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and
Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to
attend as resource persons in a public hearing scheduled on September 28, 2005 on the
following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005
entitled "Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive
Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator
Jinggoy E. Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping
Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1,
2005 entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria
Ana Consuelo Madrigal – Resolution Directing the Committee on National Defense and Security
to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the
Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by
Senator Biazon – Resolution Directing the Committee on National Defense and Security to
Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of
Staff, General Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its
postponement "due to a pressing operational situation that demands [his utmost personal
attention" while "some of the invited AFP officers are currently attending to other urgent
operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary
Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully request[ing] for the
postponement of the hearing [regarding the NorthRail project] to which various officials of the
Executive Department have been invited" in order to "afford said officials ample time and
opportunity to study and prepare for the various issues so that they may better enlighten the
Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are
unable to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and
arrangements as well as notices to all resource persons were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a 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. Corpus 21 communicated
their inability to attend due to lack of appropriate clearance from the President pursuant to E.O.
464. During the February 13, 2005 budget hearing, however, Secretary Bunye was allowed to
attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of
Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the
Philippines as the official organization of all Philippine lawyers, all invoking their constitutional
right to be informed on matters of public interest, filed their petition for certiorari and prohibition,
docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents
from implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the following substantive
issues were ventilated: (1) whether respondents committed grave abuse of discretion in
implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general
circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II,
Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI,
Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or
controversy that calls for judicial review was not taken 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.67Tribe, in fact, comments that while it is customary to employ the phrase
"executive privilege," it may be more accurate to speak of executive privileges "since
presidential refusals to furnish information may be actuated by any of at least three distinct kinds
of considerations, and may be asserted, with differing degrees of success, in the context of
either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S.
Presidents, beginning with Washington, on the ground that the information is of such nature that
its disclosure would subvert crucial military or diplomatic objectives. Another variety is the
informer’s privilege, or the privilege of the Government not to disclose the identity of persons
who furnish information of violations of law to officers charged with the enforcement of that law.
Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental
documents reflecting advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated. 68
Tribe’s comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of privileges to
resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of
the unique role and responsibilities of the executive branch of our government. Courts ruled
early that the executive had a right to withhold documents that might reveal military or state
secrets. The courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to withhold information
related to pending investigations. x x x"69 (Emphasis and underscoring supplied)
The entry in Black’s Law Dictionary on "executive privilege" is similarly instructive regarding the
scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers, exempts the
executive from disclosure requirements applicable to the ordinary citizen or organization where
such exemption is necessary to the discharge of highly important executive responsibilities
involved in maintaining governmental operations, and extends not only to military and diplomatic
secrets but also to documents integral to an appropriate exercise of the executive’ domestic
decisional and policy making functions, that is, those documents reflecting the frank expression
necessary in intra-governmental advisory and deliberative communications.70 (Emphasis and
underscoring supplied)
That a type of information is recognized as privileged does not, however, necessarily mean that
it would be considered privileged in all instances. For in determining the validity of a claim of
privilege, the question that must be asked is not only whether the requested information falls
within one of the traditional privileges, but also whether that privilege should be honored in a
given procedural setting.71
The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974.
In issue in that case was the validity of President Nixon’s claim of executive privilege against a
subpoena issued by a district court requiring the production of certain tapes and documents
relating to the Watergate investigations. The claim of privilege was based on the President’s
general interest in the confidentiality of his conversations and correspondence. The U.S. Court
held that while there is no explicit reference to a privilege of confidentiality in the U.S.
Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a
President’s powers. The Court, nonetheless, rejected the President’s claim of privilege, ruling
that the privilege must be balanced against the public interest in the fair administration of
criminal justice. Notably, the Court was careful to clarify that it was not there addressing the
issue of claims of privilege in a civil litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress are
rare.73 Despite frequent assertion of the privilege to deny information to Congress, beginning
with President Washington’s refusal to turn over treaty negotiation records to the House of
Representatives, the U.S. Supreme Court has never adjudicated the issue.74 However, the U.S.
Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year
as Nixon, recognized the President’s privilege over his conversations against a congressional
subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon,
the Court of Appeals weighed the public interest protected by the claim of privilege against the
interest that would be served by disclosure to the Committee. Ruling that the balance favored
the President, the Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez.77Almonte used the term in reference to the same privilege subject of Nixon. It quoted
the following portion of the Nixon decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and correspondences,
like the claim of confidentiality of judicial deliberations, for example, has all the values to which
we accord deference for the privacy of all citizens and, added to those values, is the necessity
for protection of the public interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. A President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so in a way many
would be unwilling to express except privately. These are the considerations justifying a
presumptive privilege for Presidential communications. The privilege is fundamental to the
operation of government and inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein
petitioners. It did not involve, as expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are certain types of information
which the government may withhold from the public, thus acknowledging, in substance if not in
name, that executive privilege may be claimed against citizens’ demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding
that there is a "governmental privilege against public disclosure with respect to state secrets
regarding military, diplomatic and other national security matters."80 The same case held that
closed-door Cabinet meetings are also a recognized limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information
does not extend to matters recognized as "privileged information under the separation of
powers,"82 by which the Court meant Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. It also held that information on military and
diplomatic secrets and those affecting national security, and information on investigations of
crimes by law enforcement agencies before the prosecution of the accused were exempted from
the right to information.
From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted
against Congress, the courts, or the public, is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground invoked to justify it and the context in which
it is made. Noticeably absent is any recognition that executive officials are exempt from the duty
to disclose information by the mere fact of being executive officials. Indeed, the extraordinary
character of the exemptions indicates that the presumption inclines heavily against executive
secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by them to secure the
consent of the President prior to appearing before Congress. There are significant differences
between the two provisions, however, which constrain this Court to discuss the validity of these
provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
determination by any official whether they are covered by E.O. 464. The President herself has,
through the challenged order, made the determination that they are. Further, unlike also Section
3, the coverage of department heads under Section 1 is not made to depend on the department
heads’ possession of any information which might be covered by executive privilege. In fact, in
marked contrast to Section 3 vis-à-vis Section 2, there is no reference to executive privilege at
all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of
the Constitution on what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with the consent of the
President, or upon the request of either House, as the rules of each House shall provide, appear
before and be heard by such House on any matter pertaining to their departments. Written
questions shall be submitted to the President of the Senate or the Speaker of the House of
Representatives at least three days before their scheduled appearance. Interpellations shall not
be limited to written questions, but may cover matters related thereto. When the security of the
State or the public interest so requires and the President so states in writing, the appearance
shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the meaning of Section 22
of Article VI. Section 22 which provides for the question hour must be interpreted vis-à-vis
Section 21 which provides for the power of either House of Congress to "conduct inquiries in aid
of legislation." As the following excerpt of the deliberations of the Constitutional Commission
shows, the framers were aware that these two provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour]
yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear
before the House of Representatives or before the Senate. I have a particular problem in this
regard, Madam President, because in our experience in the Regular Batasang Pambansa – as
the Gentleman himself has experienced in the interim Batasang Pambansa – one of the most
competent inputs that we can put in our committee deliberations, either in aid of legislation or in
congressional investigations, is the testimonies of Cabinet ministers. We usually invite them, but
if they do not come and it is a congressional investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he said that the fact
that the Cabinet ministers may refuse to come to the House of Representatives or the Senate
[when requested under Section 22] does not mean that they need not come when they are
invited or subpoenaed by the committee of either House when it comes to inquiries in aid of
legislation or congressional investigation. According to Commissioner Suarez, that is allowed
and their presence can be had under Section 21. Does the gentleman confirm this, Madam
President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was
originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be summoned and if he refuses, he can be
held in contempt of the House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the question hour. While
attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in
aid of legislation. The reference to Commissioner Suarez bears noting, he being one of the
proponents of the amendment to make the appearance of department heads discretionary in the
question hour.
So clearly was this distinction conveyed to the members of the Commission that the Committee
on Style, precisely in recognition of this distinction, later moved the provision on question hour
from its original position as Section 20 in the original draft down to Section 31, far from the
provision on inquiries in aid of legislation. This gave rise to the following exchange during the
deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go,
Mr. Presiding Officer, to the Article on Legislative and may I request the chairperson of the
Legislative Department, Commissioner Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I
propose that instead of putting it as Section 31, it should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we
reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in
terms of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own
lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put
Question Hour as Section 31. I hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely
as a complement to or a supplement of the Legislative Inquiry. The appearance of the members
of Cabinet would be very, very essential not only in the application of check and balance but
also, in effect, in aid of legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of
Commissioner Davide. In other words, we are accepting that and so this Section 31 would now
become Section 22. Would it be, Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations, Commissioners Davide and
Maambong proceeded from the same assumption that these provisions pertained to two
different functions of the legislature. Both Commissioners understood that the power to conduct
inquiries in aid of legislation is different from the power to conduct inquiries during the question
hour. Commissioner Davide’s only concern was that the two provisions on these distinct powers
be placed closely together, they being complementary to each other. Neither Commissioner
considered them as identical functions of Congress.
The foregoing opinion was not the two Commissioners’ alone. From the above-quoted
exchange, Commissioner Maambong’s committee – the Committee on Style – shared the view
that the two provisions reflected distinct functions of Congress. Commissioner Davide, on the
other hand, was speaking in his capacity as Chairman of the Committee on the Legislative
Department. His views may thus be presumed as representing that of his Committee.
In the context of a parliamentary system of government, the "question hour" has a definite
meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the
other ministers accountable for their acts and the operation of the government, 85 corresponding
to what is known in Britain as the question period. There was a specific provision for a question
hour in the 1973 Constitution86 which made the appearance of ministers mandatory. The same
perfectly conformed to the parliamentary system established by that Constitution, where the
ministers are also members of the legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is the immediate accountability
of the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the
National Assembly for the program of government and shall determine the guidelines of national
policy. Unlike in the presidential system where the tenure of office of all elected officials cannot
be terminated before their term expired, the Prime Minister and the Cabinet remain in office only
as long as they enjoy the confidence of the National Assembly. The moment this confidence is
lost the Prime Minister and the Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory nature of such appearance during
the question hour in the present Constitution so as to conform more fully to a system of
separation of powers.88 To that extent, the question hour, as it is presently understood in this
jurisdiction, departs from the question period of the parliamentary system. That department
heads may not be required to appear in a question hour does not, however, mean that the
legislature is rendered powerless to elicit information from them in all circumstances. In fact, in
light of the absence of a mandatory question period, the need to enforce Congress’ right to
executive information in the performance of its legislative function becomes more imperative. As
Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is
that the Congress has the right to obtain information from any source – even from officials of
departments and agencies in the executive branch. In the United States there is, unlike the
situation which prevails in a parliamentary system such as that in Britain, a clear separation
between the legislative and executive branches. It is this very separation that makes the
congressional right to obtain information from the executive so essential, if the functions of the
Congress as the elected representatives of the people are adequately to be carried out. The
absence of close rapport between the legislative and executive branches in this country,
comparable to those which exist under a parliamentary system, and the nonexistence in the
Congress of an institution such as the British question period have perforce made reliance by
the Congress upon its right to obtain information from the executive essential, if it is intelligently
to perform its legislative tasks. Unless the Congress possesses the right to obtain executive
information, its power of oversight of administration in a system such as ours becomes a power
devoid of most of its practical content, since it depends for its effectiveness solely upon
information parceled out ex gratia by the executive.89 (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to each other, should
not be considered as pertaining to the same power of Congress. One specifically relates to the
power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may
be used for legislation, while the other pertains to the power to conduct a question hour, the
objective of which is to obtain information in pursuit of Congress’ oversight function.
When Congress merely seeks to be informed on how department heads are implementing the
statutes which it has issued, its right to such information is not as imperative as that of the
President to whom, as Chief Executive, such department heads must give a report of their
performance as a matter of duty. In such instances, Section 22, in keeping with the separation of
powers, states that Congress may only request their appearance. Nonetheless, when the inquiry
in which Congress requires their appearance is "in aid of legislation" under Section 21, the
appearance is mandatory for the same reasons stated in Arnault. 90
In fine, the oversight function of Congress may be facilitated by compulsory process only to the
extent that it is performed in pursuit of legislation. This is consistent with the intent discerned
from the deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive officials under Section
21 and the lack of it under Section 22 find their basis in the principle of separation of powers.
While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power
of Congress to legislate by refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one executive official may be exempted from this power — the
President on whom executive power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on her being the highest official of the executive
branch, and the due respect accorded to a co-equal branch of government which is sanctioned
by a long-standing custom.
By the same token, members of the Supreme Court are also exempt from this power of inquiry.
Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof
is exempt on the basis not only of separation of powers but also on the fiscal autonomy and the
constitutional independence of the judiciary. This point is not in dispute, as even counsel for the
Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief
Justice.
Having established the proper interpretation of Section 22, Article VI of the Constitution, the
Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of legislation, must be construed as limited in its
application to appearances of department heads in the question hour contemplated in the
provision of said Section 22 of Article VI. The reading is dictated by the basic rule of construction
that issuances must be interpreted, as much as possible, in a way that will render it
constitutional.
The requirement then to secure presidential consent under Section 1, limited as it is only to
appearances in the question hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department heads in the question hour is discretionary on their
part.
Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of
legislation. Congress is not bound in such instances to respect the refusal of the department
head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by
the President herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The enumeration is
broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP,
and all senior national security officials who, in the judgment of the heads of offices designated
in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the
National Security Adviser), are "covered by the executive privilege."
The enumeration also includes such other officers as may be determined by the President.
Given the title of Section 2 — "Nature, Scope and Coverage of Executive Privilege" —, it is
evident that under the rule of ejusdem generis, the determination by the President under this
provision is intended to be based on a similar finding of coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege
actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed
above, is properly invoked in relation to specific categories of information and not to categories
of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of
executive privilege, the reference to persons being "covered by the executive privilege" may be
read as an abbreviated way of saying that the person is in possession of information which is, in
the judgment of the head of office concerned, privileged as defined in Section 2(a). The Court
shall thus proceed on the assumption that this is the intention of the challenged order.
Upon a determination by the designated head of office or by the President that an official is
"covered by the executive privilege," such official is subjected to the requirement that he first
secure the consent of the President prior to appearing before Congress. This requirement
effectively bars the appearance of the official concerned unless the same is permitted by the
President. The proviso allowing the President to give its consent means nothing more than that
the President may reverse a prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head of office,
authorized by the President under E.O. 464, or by the President herself, that such official is in
possession of information that is covered by executive privilege. This determination then
becomes the basis for the official’s not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such
invocation must be construed as a declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested information is privileged, and
that the President has not reversed such determination. Such declaration, however, even
without mentioning the term "executive privilege," amounts to an implied claim that the
information is being withheld by the executive branch, by authority of the President, on the basis
of executive privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate
President Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It
reads:
In connection with the inquiry to be conducted by the Committee of the Whole regarding the
Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m.,
please be informed that officials of the Executive Department invited to appear at the meeting
will not be able to attend the same without the consent of the President, pursuant to Executive
Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of Separation Of
Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public
Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For
Other Purposes". Said officials have not secured the required consent from the President.
(Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on which these officials
are being requested to be resource persons falls under the recognized grounds of the privilege
to justify their absence. Nor does it expressly state that in view of the lack of consent from the
President under E.O. 464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or not. The letter
assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be
covered by the order means that a determination has been made, by the designated head of
office or the President, that the invited official possesses information that is covered by executive
privilege. Thus, although it is not stated in the letter that such determination has been made, the
same must be deemed implied. Respecting the statement that the invited officials have not
secured the consent of the President, it only means that the President has not reversed the
standing prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive branch,
either through the President or the heads of offices authorized under E.O. 464, has made a
determination that the information required by the Senate is privileged, and that, at the time of
writing, there has been no contrary pronouncement from the President. In fine, an implied claim
of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of whether executive privilege
may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in
the possession of the executive may validly be claimed as privileged even against Congress.
Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal-
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either
house of Congress, are recognized as confidential. This kind of information cannot be pried
open by a co-equal branch of government. A frank exchange of exploratory ideas and
assessments, free from the glare of publicity and pressure by interested parties, is essential to
protect the independence of decision-making of those tasked to exercise Presidential,
Legislative and Judicial power. This is not the situation in the instant case. 91 (Emphasis and
underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is valid.
While the validity of claims of privilege must be assessed on a case to case basis, examining the
ground invoked therefor and the particular circumstances surrounding it, there is, in an implied
claim of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated
by the letter of respondent Executive Secretary quoted above, the implied claim authorized by
Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g.,
whether the information demanded involves military or diplomatic secrets, closed-door Cabinet
meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the
privilege under the challenged order, Congress is left to speculate as to which among them is
being referred to by the executive. The enumeration is not even intended to be comprehensive,
but a mere statement of what is included in the phrase "confidential or classified information
between the President and the public officers covered by this executive order."
Certainly, Congress has the right to know why the executive considers the requested information
privileged. It does not suffice to merely declare that the President, or an authorized head of
office, has determined that it is so, and that the President has not overturned that determination.
Such declaration leaves Congress in the dark on how the requested information could be
classified as privileged. That the message is couched in terms that, on first impression, do not
seem like a claim of privilege only makes it more pernicious. It threatens to make Congress
doubly blind to the question of why the executive branch is not providing it with the information
that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose information, must,
therefore, be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can neither be claimed
nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of
privilege, lodged by the head of the department which has control over the matter, after actual
personal consideration by that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet do so without forcing a
disclosure of the very thing the privilege is designed to protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege, there is no way of
determining whether it falls under one of the traditional privileges, or whether, given the
circumstances in which it is made, it should be respected.93 These, in substance, were the same
criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure
impossible, thereby preventing the Court from balancing such harm against plaintiffs’ needs to
determine whether to override any claims of privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this balancing
operation. In stating its objection to claimant’s interrogatories, government asserts, and nothing
more, that the disclosures sought by claimant would inhibit the free expression of opinion that
non-disclosure is designed to protect. The government has not shown – nor even alleged – that
those who evaluated claimant’s product were involved in internal policymaking, generally, or in
this particular instance. Privilege cannot be set up by an unsupported claim. The facts upon
which the privilege is based must be established. To find these interrogatories objectionable, this
Court would have to assume that the evaluation and classification of claimant’s products was a
matter of internal policy formulation, an assumption in which this Court is unwilling to indulge sua
sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide
‘precise and certain’ reasons for preserving the confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation and description
of the documents within its scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has
little more than its sua sponte speculation with which to weigh the applicability of the claim. An
improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a
claim was made by the proper executive as Reynolds requires, the Court can not recognize the
claim in the instant case because it is legally insufficient to allow the Court to make a just and
reasonable determination as to its applicability. To recognize such a broad claim in which the
Defendant has given no precise or compelling reasons to shield these documents from outside
scrutiny, would make a farce of the whole procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less than a claim of
privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v.
U.S:102
We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly
relevant to these questions. For it is as true here as it was there, that ‘if (petitioner) had
legitimate reasons for failing to produce the records of the association, a decent respect for the
House of Representatives, by whose authority the subpoenas issued, would have required that
(he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would
have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other
appropriate steps to obtain the records. ‘To deny the Committee the opportunity to consider the
objection or remedy is in itself a contempt of its authority and an obstruction of its processes. His
failure to make any such statement was "a patent evasion of the duty of one summoned to
produce papers before a congressional committee[, and] cannot be condoned." (Emphasis and
underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons for the claim
with such particularity as to compel disclosure of the information which the privilege is meant to
protect.103 A useful analogy in determining the requisite degree of particularity would be the
privilege against self-incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he declares that in so doing he
would incriminate himself – his say-so does not of itself establish the hazard of incrimination. It is
for the court to say whether his silence is justified, and to require him to answer if ‘it clearly
appears to the court that he is mistaken.’ However, if the witness, upon interposing his claim,
were required to prove the hazard in the sense in which a claim is usually required to be
established in court, he would be compelled to surrender the very protection which the privilege
is designed to guarantee. To sustain the privilege, it need only be evident from the implications
of the question, in the setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because injurious disclosure
could result." x x x (Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per
se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the
claim, it merely invokes E.O. 464, coupled with an announcement that the President has not
given her consent. It is woefully insufficient for Congress to determine whether the withholding of
information is justified under the circumstances of each case. It severely frustrates the power of
inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding
only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege.
It does not purport to be conclusive on the other branches of government. It may thus be
construed as a mere expression of opinion by the President regarding the nature and scope of
executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged order the alleged
unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States where, so it claims, only the
President can assert executive privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines
that a certain information is privileged, such determination is presumed to bear the President’s
authority and has the effect of prohibiting the official from appearing before Congress, subject
only to the express pronouncement of the President that it is allowing the appearance of such
official. These provisions thus allow the President to authorize claims of privilege by mere
silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of
the executive branch,105 or in those instances where exemption from disclosure is necessary to
the discharge of highly important executive responsibilities. 106 The doctrine of executive privilege
is thus premised on the fact that certain informations must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by definition, an exemption from
the obligation to disclose information, in this case to Congress, the necessity must be of such
high degree as to outweigh the public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive
Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state
that the authority is "By order of the President," which means that he personally consulted with
her. The privilege being an extraordinary power, it must be wielded only by the highest official in
the executive hierarchy. In other words, the President may not authorize her subordinates to
exercise such power. There is even less reason to uphold such authorization in the instant case
where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b),
is further invalid on this score.
It follows, therefore, that when an official is being summoned by Congress on a matter which, in
his own judgment, might be covered by executive privilege, he must be afforded reasonable time
to inform the President or the Executive Secretary of the possible need for invoking the privilege.
This is necessary in order to provide the President or the Executive Secretary with fair
opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after
the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the
privilege, Congress is no longer bound to respect the failure of the official to appear before
Congress and may then opt to avail of the necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to secure the consent
of the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials
appearing in inquiries in aid of legislation." That such rights must indeed be respected by
Congress is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of
persons appearing in or affected by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is essentially an authorization for
implied claims of executive privilege, for which reason it must be invalidated. That such
authorization is partly motivated by the need to ensure respect for such officials does not change
the infirm nature of the authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance of executive
officials in the hearings conducted by it, and not with the demands of citizens for information
pursuant to their right to information on matters of public concern. Petitioners are not amiss in
claiming, however, that what is involved in the present controversy is not merely the legislative
power of inquiry, but the right of the people to information.
There are, it bears noting, clear distinctions between the right of Congress to information which
underlies the power of inquiry and the right of the people to information on matters of public
concern. For one, the demand of a citizen for the production of documents pursuant to his right
to information does not have the same obligatory force as a subpoena duces tecum issued by
Congress. Neither does the right to information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people, it does not follow,
except in a highly qualified sense, that in every exercise of its power of inquiry, the people are
exercising their right to information.
To the extent that investigations in aid of legislation are generally conducted in public, however,
any executive issuance tending to unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being presumed to be in aid of legislation,
is presumed to be a matter of public concern. The citizens are thereby denied access to
information which they can use in formulating their own opinions on the matter before Congress
— opinions which they can then communicate to their representatives and other government
officials through the various legal means allowed by their freedom of expression. Thus holds
Valmonte v. Belmonte:
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

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)
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.

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
 C. LOMIBAO,

Respondents.
EN BANC
x-------------------------------------------------x G.R. No. 171409

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A.

SANTIAGO, TEODORO A. CASINO, AGAPITO A.
AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO,
PROF. RANDOLF S. DAVID, LORENZO TA�ADA III, G.R. No. 171396 MUJIV S. HATAMAN, JUAN EDGARDO ANGARA,
RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL
RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS,
MALLARI, ROMEL REGALADO BAGARES, RENATO B. MAGTUBO, JUSTIN MARC SB.
CHRISTOPHER F.C. BOLASTIG, Present: CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-
CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
Petitioners, VIRADOR, RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
PANGANIBAN, C.J.,
MARVIC M.V.F. LEONEN, NERI JAVIER
- versus - * COLMENARES, MOVEMENT OF CONCERNED
PUNO,
CITIZENS FOR CIVIL LIBERTIES REPRESENTED
BY AMADO GAT INCIONG,
QUISUMBING,
Petitioners,
YNARES-SANTIAGO,

GLORIA MACAPAGAL-ARROYO, AS SANDOVAL-GUTIERREZ,

PRESIDENT AND COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO ERMITA, - versus -
CARPIO,
HON. AVELINO CRUZ II, SECRETARY OF
NATIONAL DEFENSE, GENERAL GENEROSO AUSTRIA-MARTINEZ,
SENGA, CHIEF OF STAFF, ARMED FORCES OF G.R. No. 171485
THE PHILIPPINES, DIRECTOR GENERAL ARTURO CORONA,
LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE,
EDUARDO R. ERMITA, EXECUTIVE SECRETARY,
CARPIO MORALES, AVELINO J. CRUZ, JR., SECRETARY, DND
Respondents.
RONALDO V. PUNO, SECRETARY, DILG,
CALLEJO, SR., GENEROSO SENGA, AFP CHIEF OF STAFF,
x-------------------------------------------------x
ARTURO LOMIBAO, CHIEF PNP,
AZCUNA,
NI�EZ CACHO-OLIVARES AND TRIBUNE
PUBLISHING CO., INC., Respondents.
TINGA,
Petitioners, x-------------------------------------------------x
CHICO-NAZARIO,
KILUSANG MAYO UNO, REPRESENTED BY ITS
GARCIA, and CHAIRPERSON ELMER C. LABOG AND
SECRETARY GENERAL JOEL MAGLUNSOD,
VELASCO, JJ. NATIONAL FEDERATION OF LABOR UNIONS �
KILUSANG MAYO UNO (NAFLU-KMU),
- versus -
REPRESENTED BY ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
Promulgated: SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN,

Petitioners,
HONORABLE SECRETARY EDUARDO ERMITA May 3, 2006
AND HONORABLE DIRECTOR GENERAL ARTURO
 - versus -

- versus -

HON. EXECUTIVE SECRETARY EDUARDO

ERMITA, GENERAL GENEROSO SENGA, IN HIS
CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
CAPACITY AS PNP CHIEF,

Respondents.

HER EXCELLENCY, PRESIDENT GLORIA x-------------------------------------------------x

MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, LOREN B. LEGARDA,
THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, GENEROSO SENGA, AND THE PNP Petitioner,
DIRECTOR GENERAL, ARTURO LOMIBAO,

Respondents.

x-------------------------------------------------x
- versus -
ALTERNATIVE LAW GROUPS, INC. (ALG),

Petitioner,

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

JOSE ANSELMO I. CADIZ, FELICIANO M.

BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. G.R. No. 171483
AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C.
ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V.
GARCIA AND INTEGRATED BAR OF THE
PHILIPPINES (IBP),
G.R. No. 171400
Petitioners,
 G.R. No. 171424

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

G.R. No. 171489

DECISION

SANDOVAL-GUTIERREZ, J.:

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

Chief Justice Artemio V. Panganiban�s philosophy of liberty is thus most

relevant. He said: �In cases involving liberty, the scales of justice should weigh heavily
against government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak.� Laws and actions that restrict fundamental rights come to the
courts �with a heavy presumption against their constitutional validity.�[2]
 These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend
that respondent officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom guaranteed and protected
by the Constitution. Hence, such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How
does the Constitution of a free people combine the degree of liberty, without which, law
becomes tyranny, with the degree of law, without which, liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People
Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed Forces of
the Philippines, by virtue of the powers vested upon me by Section 18,
Article 7 of the Philippine Constitution which states that: �The President. . .
whenever it becomes necessary, . . . may call out (the) armed forces to
prevent or suppress. . .rebellion. . .,� and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and
to all decrees, orders and regulations promulgated by me personally
or upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists � the historical enemies of the democratic
Philippine State � who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down the
duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring
down the President;
WHEREAS, the claims of these elements have been
recklessly magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State �
by obstructing governance including hindering the growth of the
economy and sabotaging the people�s confidence in government and
their faith in the future of this country;
WHEREAS, these actions are adversely affecting the
economy;
WHEREAS, these activities give totalitarian forces of both the
extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the State the
primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right, represented by
military adventurists - the historical enemies of the democratic Philippine
State � and who are now in a tactical alliance and engaged in a concerted
and systematic conspiracy, over a broad front, to bring down the duly-
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down
our republican government;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
 WHEREAS, these series of actions is hurting the Philippine State
by obstructing governance, including hindering the growth of the economy
and sabotaging the people�s confidence in the government and their faith
in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the
extreme Left and extreme Right the opening to intensify their avowed aims
to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the
defense and preservation of the democratic institutions and the State the
primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been
issued declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by
virtue of the powers vested in me under the Constitution as President of the
Republic of the Philippines, and Commander-in-Chief of the Republic of the
Philippines, and pursuant to Proclamation No. 1017 dated February 24,
2006, do hereby call upon the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP), to prevent and suppress acts of
terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the
PNP, as well as the officers and men of the AFP and PNP, to immediately
carry out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP 1017. She issued
Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17,
Article XII of the Constitution, Proclamation No. 1017 dated February 24,
2006, was issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated
February 24, 2006, which were issued on the basis of Proclamation No.
1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless
violence as well as any act of rebellion and to undertake such action as
may be necessary;
WHEREAS, the AFP and PNP have effectively prevented,
suppressed and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-
ARROYO, President of the Republic of the Philippines, by virtue of the
powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents
stated that the proximate cause behind the executive issuances was the conspiracy among
some military officers, leftist insurgents of the New People�s Army (NPA), and some members
of the political opposition in a plot to unseat or assassinate President Arroyo. [4] They considered
the aim to oust or assassinate the President and take-over the reigns of government as a clear
and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the
facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no
refutation from petitioners� counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling out the armed
forces. He emphasized that none of the petitioners has shown that PP 1017 was without factual
bases. While he explained that it is not respondents� task to state the facts behind the
questioned Proclamation, however, they are presenting the same, narrated hereunder, for the
elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants
Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group
indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a
public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon
the people to �show and proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by wearing red bands on our left
arms.� [5]
 On February 17, 2006, the authorities got hold of a document entitled �Oplan Hackle
I � which detailed plans for bombings and attacks during the Philippine Military Academy
Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including
some cabinet members and President Arroyo herself.[6] Upon the advice of her security,
President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of
the celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing minutes of the
meetings between members of the Magdalo Group and the National People�s Army (NPA), a
tape recorder, audio cassette cartridges, diskettes, and copies of subversive
documents.[7] Prior to his arrest, Lt. San Juan announced through DZRH that the �Magdalo�s
D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.�
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he immediately
ordered SAF Commanding General Marcelino Franco, Jr. to �disavow� any defection. The
latter promptly obeyed and issued a public statement: �All SAF units are under the effective
control of responsible and trustworthy officers with proven integrity and unquestionable loyalty.�
On the same day, at the house of former Congressman Peping Cojuangco, President
Cory Aquino�s brother, businessmen and mid-level government officials plotted moves to bring
down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about his group�s plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Army�s elite Scout Ranger. Lim said �it was all
systems go for the planned movement against Arroyo.�[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge
number of soldiers would join the rallies to provide a critical mass and armed component to the
Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there
was no way they could possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga has remained
faithful to his Commander-in-Chief and to the chain of command. He immediately took custody
of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within
the military and the police establishments in order to forge alliances with its members and key
officials. NPA spokesman Gregorio �Ka Roger� Rosal declared: �The Communist Party and
revolutionary movement and the entire people look forward to the possibility in the coming year
of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer to end it.�[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic Front
(NDF) at North Central Mindanao, publicly announced: �Anti-Arroyo groups within the military
and police are growing rapidly, hastened by the economic difficulties suffered by the families of
AFP officers and enlisted personnel who undertake counter-insurgency operations in the
field.� He claimed that with the forces of the national democratic movement, the anti-Arroyo
conservative political parties, coalitions, plus the groups that have been reinforcing since June
2005, it is probable that the President�s ouster is nearing its concluding stage in the first half of
2006.
Respondents further claimed that the bombing of telecommunication towers and cell
sites in Bulacan and Bataan was also considered as additional factual basis for the issuance of
PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of
three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its
front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in
mass protests.[10]
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account for all their men and ensure that
the chain of command remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President suspended classes in all
levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP
1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs
and activities related to the 20th anniversary celebration of Edsa People Power I; and revoked
the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul
Gonzales stated that political rallies, which to the President�s mind were organized for
purposes of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor
announced that �warrantless arrests and take-over of facilities, including media, can already be
implemented.�[11]
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation
of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro
Manila with the intention of converging at the EDSA shrine. Those who were already near the
EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained
policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and
break up the marching groups, and scatter the massed participants. The same police action was
used against the protesters marching forward to Cubao, Quezon City and to the corner of
Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA
celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for
the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and newspaper
columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper;
while policemen from the Manila Police District were stationed outside the building. [13]
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the
tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is �meant to
show a �strong presence,� to tell media outlets not to connive or do anything that would help
the rebels in bringing down this government.� The PNP warned that it would take over any
media organization that would not follow �standards set by the government during the state of
national emergency.� Director General Lomibao stated that �if they do not follow the
standards � and the standards are - if they would contribute to instability in the government, or
if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 � we will
recommend a �takeover.�� National Telecommunications� Commissioner Ronald Solis
urged television and radio networks to �cooperate� with the government for the duration of the
state of national emergency. He asked for �balanced reporting� from broadcasters when
covering the events surrounding the coup attempt foiled by the government. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set
out for media coverage when the national security is threatened. [14]
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his
farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985. Beltran�s
lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during
the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these
petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told
they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested
and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after
him during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as
Roel and Art, were taken into custody.
Retired Major General Ramon Monta�o, former head of the Philippine Constabulary,
was arrested while with his wife and golfmates at the Orchard Golf and Country Club in
Dasmari�as, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casi�o and Gabriela
Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL
Ticket Office in Davao City. Later, he was turned over to the custody of the House of
Representatives where the �Batasan 5� decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of
national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017
and G.O. No. 5 were filed with this Court against the above-named respondents. Three (3) of
these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds
that (1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the
constitutional requirements for the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,
Inc. challenged the CIDG�s act of raiding the Daily Tribune offices as a clear case of
�censorship� or �prior restraint.� They also claimed that the term �emergency� refers
only to tsunami, typhoon, hurricane and similar occurrences, hence, there is �absolutely no
emergency� that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero,
and twenty one (21) other members of the House of Representatives, including Representatives
Satur Ocampo, Rafael Mariano, Teodoro Casi�o, Liza Maza, and Josel Virador. They
asserted that PP 1017 and G.O. No. 5 constitute �usurpation of legislative powers�;
�violation of freedom of expression� and �a declaration of martial law.� They alleged that
President Arroyo �gravely abused her discretion in calling out the armed forces without clear
and verifiable factual basis of the possibility of lawless violence and a showing that there is
necessity to do so.�
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP
1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the
power to enact laws and decrees; (2) their issuance was without factual basis; and (3) they
violate freedom of expression and the right of the people to peaceably assemble to redress their
grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP
1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article
II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d) Section
17[20] of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is
an �arbitrary and unlawful exercise by the President of her Martial Law powers.� And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that �it
amounts to an exercise by the President of emergency powers without congressional
approval.� In addition, petitioners asserted that PP 1017 �goes beyond the nature and
function of a proclamation as defined under the Revised Administrative Code. �
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017
and G.O. No. 5 are �unconstitutional for being violative of the freedom of expression, including
its cognate rights such as freedom of the press and the right to access to information on matters
of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution.� In this
regard, she stated that these issuances prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.
In respondents� Consolidated Comment, the Solicitor General countered that: first, the
petitions should be dismissed for being moot; second, petitioners in G.R. Nos. 171400
(ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et
al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo
as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not
violate the people�s right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the
above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot
and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.),
and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of
PP 1017.
 2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of
judicial review enunciated in Marbury v. Madison.[21] This concept rests on the extraordinary
simple foundation --
The Constitution is the supreme law. It was ordained by the people,
the ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its unconstitutional
attempt, and thus to vindicate and preserve inviolate the will of the
people as expressed in the Constitution. This power the courts
exercise. This is the beginning and the end of the theory of judicial
review.[22]
But the power of judicial review does not repose upon the courts a �self-starting
capacity.�[23] Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to raise a
question of constitutionality; third, the constitutional question must be raised at the earliest
opportunity; and fourth, the decision of the constitutional question must be necessary to the
determination of the case itself.[24]
Respondents maintain that the first and second requisites are absent, hence, we shall
limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is �definite and concrete, touching the legal relations of
parties having adverse legal interest;� a real and substantial controversy admitting of specific
relief.[25] The Solicitor General refutes the existence of such actual case or controversy,
contending that the present petitions were rendered �moot and academic� by President
Arroyo�s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events,[26] so that a declaration thereon would be of no practical use or
value.[27] Generally, courts decline jurisdiction over such case[28] or dismiss it on ground of
mootness.[29]
The Court holds that President Arroyo�s issuance of PP 1021 did not render the
present petitions moot and academic. During the eight (8) days that PP 1017 was operative,
the police officers, according to petitioners, committed illegal acts in implementing it. Are PP
1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal
acts? These are the vital issues that must be resolved in the present petitions. It must be
stressed that �an unconstitutional act is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal contemplation, inoperative.�[30]
The �moot and academic� principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution;[31] second, the exceptional
character of the situation and the paramount public interest is involved; [32] third, when
constitutional issue raised requires formulation of controlling principles to guide the bench, the
bar, and the public;[33] and fourth, the case is capable of repetition yet evading review.[34]
All the foregoing exceptions are present here and justify this Court�s assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O.
No. 5 violates the Constitution. There is no question that the issues being raised affect the
public�s interest, involving as they do the people�s basic rights to freedom of expression, of
assembly and of the press. Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating
the bench and the bar, and in the present petitions, the military and the police, on the extent of
the protection given by constitutional guarantees.[35] And lastly, respondents� contested
actions are capable of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. Panganiban�s Separate Opinion in Sanlakas v. Executive
Secretary.[36] However, they failed to take into account the Chief Justice�s very statement that
an otherwise �moot� case may still be decided �provided the party raising it in a proper case
has been and/or continues to be prejudiced or damaged as a direct result of its
issuance.� The present case falls right within this exception to the mootness rule pointed out
by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as �a right of appearance in a court of justice on a given
question.�[37] In private suits, standing is governed by the �real-parties-in interest� rule as
contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that
�every action must be prosecuted or defended in the name of the real party in
interest.� Accordingly, the �real-party-in interest� is �the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the avails of the
suit.�[38] Succinctly put, the plaintiff�s standing is based on his own right to the relief sought.
 The difficulty of determining locus standi arises in public suits. Here, the plaintiff who
asserts a �public right� in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently from
any other person. He could be suing as a �stranger,� or in the category of a �citizen,� or
�taxpayer.� In either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a �citizen� or �taxpayer.
Case law in most jurisdictions now allows both �citizen� and �taxpayer� standing in
public actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was held
that the plaintiff in a taxpayer�s suit is in a different category from the plaintiff in a citizen�s
suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins:[40] �In matter of mere public right,
however�the people are the real parties�It is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued and punished, and
that a public grievance be remedied.� With respect to taxpayer�s suits, Terr v.
Jordan[41] held that �the right of a citizen and a taxpayer to maintain an action in courts to
restrain the unlawful use of public funds to his injury cannot be denied.�
However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United State Supreme Court laid down the more
stringent �direct injury� test in Ex Parte Levitt,[42] later reaffirmed in Tileston v.
Ullman.[43] The same Court ruled that for a private individual to invoke the judicial power to
determine the validity of an executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not sufficient that he has a
general interest common to all members of the public.
This Court adopted the �direct injury� test in our jurisdiction. In People v.
Vera,[44] it held that the person who impugns the validity of a statute must have �a personal
and substantial interest in the case such that he has sustained, or will sustain direct
injury as a result.� The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate,[45] Manila Race Horse Trainers� Association v. De la
Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-Chinese League of the Philippines
v. Felix.[48]
However, being a mere procedural technicality, the requirement of locus standi may
be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency
Powers Cases, Araneta v. Dinglasan,[49] where the �transcendental importance� of the
cases prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon the issues raised due to
the �far-reaching implications� of the petition notwithstanding its categorical statement that
petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this
liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or validity of laws, regulations
and rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners have failed to show
direct injury, they have been allowed to sue under the principle of �transcendental
importance.� Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled
that the enforcement of the constitutional right to information and the
equitable diffusion of natural resources are matters of transcendental
importance which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the
Court held that �given the transcendental importance of the issues
involved, the Court may relax the standing requirements and allow the
suit to prosper despite the lack of direct injury to the parties seeking
judicial review� of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a showing
that �Balikatan 02-01� involves the exercise of Congress� taxing or
spending powers, it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,[55] that in cases of transcendental importance,
the cases must be settled promptly and definitely and standing
requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of
the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court�s attitude
toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a
people�s organization does not give it the requisite personality to question the validity of the on-
line lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it
cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it
sue as a concerned citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the
Court reiterated the �direct injury� test with respect to concerned citizens� cases involving
constitutional issues. It held that �there must be a showing that the citizen personally suffered
some actual or threatened injury arising from the alleged illegal official act.�
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury
to itself or to its leaders, members or supporters.
 In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the President�s declaration of a
state of rebellion is a usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice
Society, the Court declared them to be devoid of standing, equating them with the LDP
in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares
and Tribune Publishing Co. Inc. They alleged �direct injury� resulting from �illegal arrest�
and �unlawful search� committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of Congress is
necessary whenever the alarming powers incident to Martial Law are used. Moreover, it is in
the interest of justice that those affected by PP 1017 can be represented by their Congressmen
in bringing to the attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,[61] Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,[62] Basco v. Philippine Amusement and Gaming Corporation,[63] and Ta�ada v.
Tuvera,[64] that when the issue concerns a public right, it is sufficient that the petitioner is a
citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU�s assertion that PP 1017 and G.O. No. 5 violated its right
to peaceful assembly may be deemed sufficient to give it legal standing. Organizations may be
granted standing to assert the rights of their members.[65] We take judicial notice of the
announcement by the Office of the President banning all rallies and canceling all permits for
public assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct
or potential injury which the IBP as an institution or its members may suffer as a consequence of
the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v.
Zamora,[66] the Court held that the mere invocation by the IBP of its duty to preserve the rule of
law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this
case. This is too general an interest which is shared by other groups and the whole
citizenry. However, in view of the transcendental importance of the issue, this Court declares
that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant
petition as there are no allegations of illegal disbursement of public funds. The fact that she is a
former Senator is of no consequence. She can no longer sue as a legislator on the allegation
that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her
claim that she is a media personality will not likewise aid her because there was no showing that
the enforcement of these issuances prevented her from pursuing her occupation. Her
submission that she has pending electoral protest before the Presidential Electoral Tribunal is
likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the proceedings
or result of her case. But considering once more the transcendental importance of the issue
involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the
bigger question of proper exercise of judicial power. This is the underlying legal tenet of the
�liberality doctrine� on legal standing. It cannot be doubted that the validity of PP No. 1017
and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino
people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated
breath the ruling of this Court on this very critical matter. The petitions thus call for the
application of the �transcendental importance� doctrine, a relaxation of the standing
requirements for the petitioners in the �PP 1017 cases.�
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the
doctrine that the President, during his tenure of office or actual incumbency, [67] may not be sued
in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that he be freed from
any form of harassment, hindrance or distraction to enable him to fully attend to the performance
of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes
the executive branch and anything which impairs his usefulness in the discharge of the many
great and important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people[68] but he
may be removed from office only in the mode provided by law and that is by impeachment.[69]
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
�necessary� for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President�s
exercise of his Commander-in-Chief power has reached its distilled point - from the indulgent
days of Barcelon v. Baker[70] and Montenegro v. Castaneda[71] to the volatile era
of Lansang v. Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The tug-
of-war always cuts across the line defining �political questions,� particularly those questions
�in regard to which full discretionary authority has been delegated to the legislative or executive
branch of the government.�[75] Barcelon and Montenegro were in unison in declaring that
the authority to decide whether an exigency has arisen belongs to the President and his
decision is final and conclusive on the courts. Lansang took the opposite view. There, the
members of the Court were unanimous in the conviction that the Court has the authority to
inquire into the existence of factual bases in order to determine their constitutional
sufficiency. From the principle of separation of powers, it shifted the focus to the system
of checks and balances, �under which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the Basic Law,
and the authority to determine whether or not he has so acted is vested in
the Judicial Department, which in this respect, is, in turn,
constitutionally supreme.�[76] In 1973, the unanimous Court of Lansang was divided
in Aquino v. Enrile.[77] There, the Court was almost evenly divided on the issue of
whether the validity of the imposition of Martial Law is a political or justiciable
question.[78] Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that
there is a need to re-examine the latter case, ratiocinating that �in times of war or national
emergency, the President must be given absolute control for the very life of the nation
and the government is in great peril. The President, it intoned, is answerable only to his II. Constitutionality of PP 1017 and G.O. No. 5
conscience, the People, and God.�[79]

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

As to how the Court may inquire into the President�s exercise of John Locke, describing the architecture of civil government, called upon the English
power, Lansang adopted the test that �judicial inquiry can go no further than to satisfy the doctrine of prerogative to cope with the problem of emergency. In times of danger to the nation,
Court not that the President�s decision is correct,� but that �the President did not positive law enacted by the legislature might be inadequate or even a fatal obstacle to the
act arbitrarily.� Thus, the standard laid down is not correctness, but promptness of action necessary to avert catastrophe. In these situations, the Crown retained a
arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled that �it is prerogative �power to act according to discretion for the public good, without the
incumbent upon the petitioner to show that the President�s decision is totally bereft of proscription of the law and sometimes even against it.�[84] But Locke recognized that this
factual basis� and that if he fails, by way of proof, to support his assertion, then �this Court moral restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the
cannot undertake an independent investigation beyond the pleadings.� need for resorting to the prerogative and how may its abuse be avoided? Here, Locke
readily admitted defeat, suggesting that �the people have no other remedy in this, as in all
other cases where they have no judge on earth, but to appeal to Heaven.�[85]

Petitioners failed to show that President Arroyo�s exercise of the calling-out power,
by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor General�s
Consolidated Comment and Memorandum shows a detailed narration of the events leading to
the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the
escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in Jean-Jacques Rousseau also assumed the need for temporary suspension of
the military, particularly in the Philippine Marines, and the reproving statements from the democratic processes of government in time of emergency. According to him:
communist leaders. There was also the Minutes of the Intelligence Report and Security Group of
the Philippine Army showing the growing alliance between the NPA and the military. Petitioners The inflexibility of the laws, which prevents them from adopting
presented nothing to refute such events. Thus, absent any contrary allegations, the Court is themselves to circumstances, may, in certain cases, render them disastrous
convinced that the President was justified in issuing PP 1017 calling for military aid. and make them bring about, at a time of crisis, the ruin of the State�

It is wrong therefore to wish to make political institutions as strong

as to render it impossible to suspend their operation. Even Sparta allowed
its law to lapse...

Indeed, judging the seriousness of the incidents, President Arroyo was not expected
to simply fold her arms and do nothing to prevent or suppress what she believed was lawless
violence, invasion or rebellion. However, the exercise of such power or duty must not stifle If the peril is of such a kind that the paraphernalia of the laws are
liberty. an obstacle to their preservation, the method is to nominate a supreme
 lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general will,
and it clear that the people�s first intention is that the State shall not
perish.[86]
Rosseau did not fear the abuse of the emergency dictatorship or �supreme
magistracy� as he termed it. For him, it would more likely be cheapened by �indiscreet
use.� He was unwilling to rely upon an �appeal to heaven.� Instead, he relied upon a
tenure of office of prescribed duration to avoid perpetuation of the dictatorship. [87]
John Stuart Mill concluded his ardent defense of representative government: �I am
far from condemning, in cases of extreme necessity, the assumption of absolute power in
the form of a temporary dictatorship.�[88]
Nicollo Machiavelli�s view of emergency powers, as one element in the whole
scheme of limited government, furnished an ironic contrast to the Lockean theory of
prerogative. He recognized and attempted to bridge this chasm in democratic political
theory, thus:
Now, in a well-ordered society, it should never be necessary to
resort to extra �constitutional measures; for although they may for a time
be beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if
she has not by law provided for everything, having a remedy for every
emergency and fixed rules for applying it.[89]
Machiavelli � in contrast to Locke, Rosseau and Mill � sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with suitable
checks and controls in time of national danger. He attempted forthrightly to meet the problem of
combining a capacious reserve of power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.[90]
Contemporary political theorists, addressing themselves to the problem of response to
emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.[91] Frederick M. Watkins saw �no reason why absolutism should not be used
as a means for the defense of liberal institutions,� provided it �serves to protect
established institutions from the danger of permanent injury in a period of temporary
emergency and is followed by a prompt return to the previous forms of political
life.�[92] He recognized the two (2) key elements of the problem of emergency governance, as
well as all constitutional governance: increasing administrative powers of the executive,
while at the same time �imposing limitation upon that power.�[93] Watkins placed his real
faith in a scheme of constitutional dictatorship. These are the conditions of success of such a
dictatorship: �The period of dictatorship must be relatively short�Dictatorship should
always be strictly legitimate in character�Final authority to determine the need for
dictatorship in any given case must never rest with the dictator himself��[94] and the
objective of such an emergency dictatorship should be �strict political conservatism.�
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. [95] �It is a
problem of concentrating power � in a government where power has consciously been divided
� to cope with� situations of unprecedented magnitude and gravity. There must be a broad
grant of powers, subject to equally strong limitations as to who shall exercise such powers,
when, for how long, and to what end.�[96] Friedrich, too, offered criteria for judging the
adequacy of any of scheme of emergency powers, to wit: �The emergency executive must
be appointed by constitutional means � i.e., he must be legitimate; he should not enjoy
power to determine the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of emergency action must
be the defense of the constitutional order.�[97]
Clinton L. Rossiter, after surveying the history of the employment of emergency
powers in Great Britain, France, Weimar, Germany and the United States, reverted to a
description of a scheme of �constitutional dictatorship� as solution to the vexing problems
presented by emergency.[98] Like Watkins and Friedrich, he stated a priori the conditions of
success of the �constitutional dictatorship,� thus:
1) No general regime or particular institution of
constitutional dictatorship should be initiated unless it is
necessary or even indispensable to the preservation of the State
and its constitutional order�
2) �the decision to institute a constitutional
dictatorship should never be in the hands of the man or men who
will constitute the dictator�
3) No government should initiate a constitutional
dictatorship without making specific provisions for its
termination�
4) �all uses of emergency powers and all
readjustments in the organization of the government should be
effected in pursuit of constitutional or legal requirements�
 5) � no dictatorial institution should be adopted, no
right invaded, no regular procedure altered any more than is
absolutely necessary for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a
constitutional dictatorship should never be permanent in character
or effect�
7) The dictatorship should be carried on by persons
representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for
every action taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional
dictatorship, like the decision to institute one should never be in
the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond
the termination of the crisis for which it was instituted�
11) �the termination of the crisis must be followed by a
complete return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional
dictatorship�[99]
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence
or termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light of recent
experience, were one in saying that, �the suggestion that democracies surrender the
control of government to an authoritarian ruler in time of grave danger to the nation
is not based upon sound constitutional theory.� To appraise emergency power in terms of
constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It
matters not whether the term �dictator� is used in its normal sense (as applied to authoritarian
rulers) or is employed to embrace all chief executives administering emergency powers.
However used, �constitutional dictatorship� cannot be divorced from the implication of
suspension of the processes of constitutionalism. Thus, they favored instead the �concept of
constitutionalism� articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the
analysis of problems of emergency powers, and which is consistent with the
findings of this study, is that formulated by Charles H. McIlwain. While it
does not by any means necessarily exclude some indeterminate limitations
upon the substantive powers of government, full emphasis is placed
upon procedural limitations, and political responsibility. McIlwain clearly
recognized the need to repose adequate power in government. And in
discussing the meaning of constitutionalism, he insisted that the historical
and proper test of constitutionalism was the existence of adequate
processes for keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an exaggerated
emphasis upon separation of powers and substantive limitations on
governmental power. He found that the really effective checks on despotism
have consisted not in the weakening of government but, but rather in
the limiting of it; between which there is a great and very significant
difference. In associating constitutionalism with �limited� as
distinguished from �weak� government, McIlwain meant
government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the
legal limits to arbitrary power and a complete political responsibility of
government to the governed.[101]
In the final analysis, the various approaches to emergency of the above political
theorists �- from Lock�s �theory of prerogative,� to Watkins� doctrine of �constitutional
dictatorship� and, eventually, to McIlwain�s �principle of constitutionalism� --- ultimately
aim to solve one real problem in emergency governance, i.e., that of allotting increasing areas
of discretionary power to the Chief Executive, while insuring that such powers will be
exercised with a sense of political responsibility and under effective limitations and
checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution,
endeavored to create a government in the concept of Justice Jackson�s �balanced power
structure.�[102] Executive, legislative, and judicial powers are dispersed to the President, the
Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of emergency. Each branch is given a role to
serve as limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other words, in times of
emergency, our Constitution reasonably demands that we repose a certain amount of faith in the
basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to
operate within carefully prescribed procedural limitations.
a. �Facial Challenge�

Petitioners contend that PP 1017 is void on its face because of its �overbreadth.�
They claim that its enforcement encroached on both unprotected and protected rights under
Section 4, Article III of the Constitution and sent a �chilling effect� to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for
testing �on their faces� statutes in free speech cases, also known under the American Law
as First Amendment cases.[103]
A plain reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno,[104] the US Supreme Court held that �we
have not recognized an �overbreadth� doctrine outside the limited context of the First
Amendment� (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
�reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct.� Undoubtedly, lawless violence, insurrection and rebellion
are considered �harmful� and �constitutionally unprotected conduct.� In Broadrick v.
Oklahoma,[105] it was held:
It remains a �matter of no little difficulty� to determine when a
law may properly be held void on its face and when �such summary
action� is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at the
outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from �pure speech� toward
conduct and that conduct �even if expressive � falls within the scope
of otherwise valid criminal laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful, constitutionally
unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only �spoken words� and again, that �overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct.�[106] Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation.
Second, facial invalidation of laws is considered as �manifestly strong medicine,� to
be used �sparingly and only as a last resort,� and is �generally disfavored;�[107] The
reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication
is the principle that a person to whom a law may be applied will not be heard to challenge a law
on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other
situations not before the Court.[108] A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is
that it marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the
rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted
to raise the rights of third parties; and the court invalidates the entire
statute �on its face,� not merely �as applied for� so that the overbroad
law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the �chilling;� deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad law�s �very existence may cause
others not before the court to refrain from constitutionally protected speech
or expression.� An overbreadth ruling is designed to remove that deterrent
effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court
to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before the statute
is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above all the
 speculative and amorphous nature of the required line-by-line analysis law and order throughout the Philippines, prevent or suppress all forms of
of detailed statutes,...ordinarily results in a kind of case that is wholly lawless violence as well any act of insurrection or rebellion�
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.

Second provision:

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

Petitioners likewise seek a facial review of PP 1017 on the ground of

vagueness. This, too, is unwarranted. �and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
direction;�

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

b. Constitutional Basis of PP 1017

�as provided in Section 17, Article XII of the Constitution do

hereby declare a State of National Emergency.�
Now on the constitutional foundation of PP 1017.

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

First Provision: Calling-out Power

First provision:

The first provision pertains to the President�s calling-out power. In

�by virtue of the power vested upon me by Section 18, Artilce Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that
VII � do hereby command the Armed Forces of the Philippines, to maintain Section 18, Article VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place the Philippines
or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing
to the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed
by any citizen, the sufficiency of the factual bases of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from its
filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days, otherwise
he shall be released.
grants the President, as Commander-in-Chief, a �sequence� of graduated powers. From the
most to the least benign, these are: the calling-out power, the power to suspend the privilege of
the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,[112] the Court ruled that the only criterion for the exercise of the calling-out
power is that �whenever it becomes necessary,� the President may call the armed forces
�to prevent or suppress lawless violence, invasion or rebellion.� Are these conditions
present in the instant cases? As stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her Office�s vast intelligence
network, she is in the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police
action. But every act that goes beyond the President�s calling-out power is considered illegal
or ultra vires. For this reason, a President must be careful in the exercise of his powers. He
cannot invoke a greater power when he wishes to act under a lesser power. There lies the
wisdom of our Constitution, the greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the President�s
authority to declare a �state of rebellion� (in Sanlakas) and the authority to proclaim a state of
national emergency. While President Arroyo�s authority to declare a �state of rebellion�
emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. � Proclamations. � Acts of the President fixing a
date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a specific
law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.
President Arroyo�s declaration of a �state of rebellion� was merely an act declaring a
status or condition of public moment or interest, a declaration allowed under Section 4 cited
above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and
deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national
emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a
provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She
also relied on Section 17, Article XII, a provision on the State�s extraordinary power to take
over privately-owned public utility and business affected with public interest. Indeed, PP 1017
calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed
harmless, without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of
Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain
therein that what the President invoked was her calling-out power.
 The declaration of Martial Law is a �warn[ing] to citizens that the military power has been
called upon by the executive to assist in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will The second provision pertains to the power of the President to ensure that the laws be
in any way render more difficult the restoration of order and the enforcement of law.�[113] faithfully executed. This is based on Section 17, Article VII which reads:

In his �Statement before the Senate Committee on Justice� on March 13, 2006, Mr.
Justice Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three powers of
the President as Commander-in-Chief, the power to declare Martial Law poses the most severe SEC. 17. The President shall have control of all the executive
threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot departments, bureaus, and offices. He shall ensure that the laws be
be used to stifle or persecute critics of the government. It is placed in the keeping of the faithfully executed.
President for the purpose of enabling him to secure the people from harm and to restore order
so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ. As the Executive in whom the executive power is vested, [115] the primary function of
the President is to enforce the laws as well as to formulate policies to be embodied in existing
laws. He sees to it that all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath or affirmation to the effect
that as President of the Philippines, he will, among others, �execute its laws.�[116] In the
exercise of such function, the President, if needed, may employ the powers attached to his office
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no as the Commander-in-Chief of all the armed forces of the country,[117] including the Philippine
more than a call by the President to the armed forces to prevent or suppress lawless National Police[118] under the Department of Interior and Local Government.[119]
violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial
Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any
act done contrary to its command is ultra vires.

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo,

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration of Martial Law or
suspension of the writ of habeas corpus.
Rafael Mariano, Teodoro Casi�o, Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in
violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in
Congress. They assail the clause �to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction.�

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

Petitioners� contention is understandable. A reading of PP 1017 operative clause

shows that it was lifted[120] from Former President Marcos� Proclamation No. 1081, which partly
reads:

Second Provision: �Take Care� Power

 NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines by virtue of the powers vested upon me by Article VII,
Section 10, Paragraph (2) of the Constitution, do hereby place the entire
Philippines as defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: �to enforce obedience to all the laws and decrees,
orders and regulations promulgated by me personally or upon my direction.� Upon the
other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction.�
Is it within the domain of President Arroyo to promulgate �decrees�?
PP 1017 states in part: �to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction.�
The President is granted an Ordinance Power under Chapter 2, Book III of Executive
Order No. 292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. � Acts of the President providing for
rules of a general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. � Acts of the President which
relate to particular aspect of governmental operations in pursuance of his
duties as administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. � Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of
an executive order.
Sec. 5. Memorandum Orders. � Acts of the President on matters
of administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied in
memorandum orders.
Sec. 6. Memorandum Circulars. � Acts of the President on
matters relating to internal administration, which the President desires to
bring to the attention of all or some of the departments, agencies, bureaus
or offices of the Government, for information or compliance, shall be
embodied in memorandum circulars.
Sec. 7. General or Special Orders. � Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines shall be issued as general or special orders.
President Arroyo�s ordinance power is limited to the foregoing issuances. She
cannot issue decrees similar to those issued by Former President Marcos under PP
1081. Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative power
during the period of Martial Law under the 1973 Constitution.[121]
This Court rules that the assailed PP 1017 is unconstitutional insofar as it
grants President Arroyo the authority to promulgate �decrees.� Legislative power is
peculiarly within the province of the Legislature. Section 1, Article VI categorically states that
�[t]he legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives.� To be sure, neither Martial Law nor a
state of rebellion nor a state of emergency can justify President Arroyo�s exercise of legislative
power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows
that these decrees are void and, therefore, cannot be enforced. With respect to �laws,� she
cannot call the military to enforce or implement certain laws, such as customs laws, laws
governing family and property relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless
violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws
and to all decrees, orders, and regulations promulgated
by me personally or upon my direction; and as
provided in Section 17, Article XII of the
Constitution do hereby declare a state of national
emergency.
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience �to all the laws
and to all decrees x x x� but also to act pursuant to the provision of Section 17, Article XII which
reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when
she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP
1017 purports to grant the President, without any authority or delegation from Congress, to take
over or direct the operation of any privately-owned public utility or business affected with public
interest.
This provision was first introduced in the 1973 Constitution, as a product of the
�martial law� thinking of the 1971 Constitutional Convention.[122] In effect at the time of its
approval was President Marcos� Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over �the management, control and
operation of the Manila Electric Company, the Philippine Long Distance Telephone Company,
the National Waterworks and Sewerage Authority, the Philippine National Railways, the
Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution
by the Government of its effort to contain, solve and end the present national emergency.�
Petitioners, particularly the members of the House of Representatives, claim that President
Arroyo�s inclusion of Section 17, Article XII in PP 1017 is an encroachment on the
legislature�s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President�s authority to declare �a state of
national emergency� and to exercise emergency powers. To the first, as elucidated by
the Court, Section 18, Article VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall have the sole
power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to
war but also to �other national emergency.� If the intention of the Framers of our
Constitution was to withhold from the President the authority to declare a �state of national
emergency� pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like
the declaration of the existence of a state of war), then the Framers could have provided
so. Clearly, they did not intend that Congress should first authorize the President before he can
declare a �state of national emergency.� The logical conclusion then is that President Arroyo
could validly declare the existence of a state of national emergency even in the absence of a
Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned
public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and provisions of a
constitution which relate to the same subject matter will be construed together and considered in
the light of each other.[123] Considering that Section 17 of Article XII and Section 23 of Article VI,
previously quoted, relate to national emergencies, they must be read together to determine the
limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in
the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power not reposed upon it. However,
knowing that during grave emergencies, it may not be possible or practicable for Congress to
meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress
to grant emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.[124]
Section 17, Article XII must be understood as an aspect of the emergency powers
clause. The taking over of private business affected with public interest is just another facet of
the emergency powers generally reposed upon Congress. Thus, when Section 17 states that
the �the State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest,� it refers to Congress, not the President. Now,
whether or not the President may exercise such power is dependent on whether Congress may
delegate it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown
Sheet & Tube Co. et al. v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he
did, it must be found in some provision of the Constitution. And it is not
claimed that express constitutional language grants this power to the
President. The contention is that presidential power should be implied from
the aggregate of his powers under the Constitution. Particular reliance is
placed on provisions in Article II which say that �The executive Power shall
be vested in a President . . . .;� that �he shall take Care that the Laws be
faithfully executed;� and that he �shall be Commander-in-Chief of the
Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the
President�s military power as Commander-in-Chief of the Armed
Forces. The Government attempts to do so by citing a number of cases
upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even
though �theater of war� be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-in-
Chief of the Armed Forces has the ultimate power as such to take
possession of private property in order to keep labor disputes from
stopping production. This is a job for the nation�s lawmakers, not for
its military authorities.
Nor can the seizure order be sustained because of the
several constitutional provisions that grant executive power to the
President. In the framework of our Constitution, the President�s
power to see that the laws are faithfully executed refutes the idea that
he is to be a lawmaker. The Constitution limits his functions in the
lawmaking process to the recommending of laws he thinks wise and
the vetoing of laws he thinks bad. And the Constitution is neither
silent nor equivocal about who shall make laws which the President is
to execute. The first section of the first article says that �All
legislative Powers herein granted shall be vested in a Congress of the
United States. . .�[126]
Petitioner Cacho-Olivares, et al. contends that the term �emergency� under Section
17, Article XII refers to �tsunami,� �typhoon,� �hurricane� and �similar
occurrences.� This is a limited view of �emergency.�
Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that which is accepted as
normal. Implicit in this definitions are the elements of intensity, variety, and
perception.[127] Emergencies, as perceived by legislature or executive in the United Sates since
1933, have been occasioned by a wide range of situations, classifiable under three (3) principal
heads: a) economic,[128] b) natural disaster,[129] and c) national security.[130]

�Emergency,� as contemplated in our Constitution, is of the same breadth. It may
include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar
catastrophe of nationwide proportions or effect.[131] This is evident in the Records of the
Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee�s definition of �national
emergency� which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take
over or direct the operation of any privately owned public utility or business
affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los
Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
�national emergency.�
MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.[132]
x x x x x x
MR. TINGSON. May I ask the committee if �national emergency�
refers to military national emergency or could this be economic
emergency?�
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.[133]
It may be argued that when there is national emergency, Congress may not be able to
convene and, therefore, unable to delegate to the President the power to take over privately-
owned public utility or business affected with public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
�x x x
After all the criticisms that have been made against the
efficiency of the system of the separation of powers, the fact
remains that the Constitution has set up this form of government,
with all its defects and shortcomings, in preference to the
commingling of powers in one man or group of men. The Filipino
people by adopting parliamentary government have given notice
that they share the faith of other democracy-loving peoples in this
system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress
all the time, not excepting periods of crisis no matter how
serious. Never in the history of the United States, the basic
features of whose Constitution have been copied in ours, have
specific functions of the legislative branch of enacting laws been
surrendered to another department � unless we regard as
legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was
fighting a total war, or when it was engaged in a life-and-death
struggle to preserve the Union. The truth is that under our concept
of constitutional government, in times of extreme perils more than
in normal circumstances �the various branches, executive,
legislative, and judicial,� given the ability to act, are called upon
�to perform the duties and discharge the responsibilities
committed to them respectively.�
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her during the
emergency to temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privately-owned public
utility or business affected with public interest. The President cannot decide whether
exceptional circumstances exist warranting the take over of privately-owned public
utility or business affected with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President has no power to point
out the types of businesses affected with public interest that should be taken over. In short, the
President has no absolute authority to exercise all the powers of the State under Section 17,
Article VII in the absence of an emergency powers act passed by Congress.
 c. �AS APPLIED CHALLENGE�

One of the misfortunes of an emergency, particularly, that which pertains to security, is

that military necessity and the guaranteed rights of the individual are often not compatible. Our
history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here,
the right against unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of assembly under the
Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate �direct injury.�
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the validity of the
statute or ordinance is to be measured is the essential basis for the exercise of power, and not
a mere incidental result arising from its exertion.[138] This is logical. Just imagine the
absurdity of situations when laws maybe declared unconstitutional just because the officers
implementing them have acted arbitrarily. If this were so, judging from the blunders committed
by policemen in the cases passed upon by the Court, majority of the provisions of the Revised
Penal Code would have been declared unconstitutional a long time ago.

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

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc.
claimed that on February 25, 2006, the CIDG operatives �raided and ransacked without
warrant� their office. Three policemen were assigned to guard their office as a possible
�source of destabilization.� Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were �turned away and dispersed� when they went to EDSA and later, to Ayala
Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the �direct injuries� allegedly suffered by the said petitioners shows that
they resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are �acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines.� They are internal rules issued by
the executive officer to his subordinates precisely for the proper and efficientadministration of
law. Such rules and regulations create no relation except between the official who issues them
and the official who receives them.[139] They are based on and are the product of, a relationship
in which power is their source, and obedience, their object. [140] For these reasons, one
requirement for these rules to be valid is that they must be reasonable, not arbitrary or
capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the �necessary
and appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence.�

Unlike the term �lawless violence� which is unarguably extant in our statutes and
the Constitution, and which is invariably associated with �invasion, insurrection or rebellion,�
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of the phrase �acts of terrorism� is still an amorphous and vague concept. Congress has yet to
these illegal acts? In general, does the illegal implementation of a law render it unconstitutional? enact a law defining and punishing acts of terrorism.

Settled is the rule that courts are not at liberty to declare statutes invalid although
they may be abused and misabused[135] and may afford an opportunity for abuse in the
manner of application.[136] The validity of a statute or ordinance is to be determined from its
general purpose and its efficiency to accomplish the end desired, not from its effects in a
particular case.[137] PP 1017 is merely an invocation of the President�s calling-out power. Its In fact, this �definitional predicament� or the �absence of an agreed definition of
general purpose is to command the AFP to suppress all forms of lawless violence, invasion or terrorism� confronts not only our country, but the international
rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP community as well. The following observations are quite apropos:
1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct
illegal arrest, search or violate the citizens� constitutional rights.
 In the actual unipolar context of international relations, the �fight
against terrorism� has become one of the basic slogans when it comes to
the justification of the use of force against certain states and against groups
operating internationally. Lists of states �sponsoring terrorism� and of
terrorist organizations are set up and constantly being updated according to
criteria that are not always known to the public, but are clearly determined
by strategic interests.
The basic problem underlying all these military actions � or
threats of the use of force as the most recent by the United States against
Iraq � consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal
categorization of acts of violence either by states, by armed groups such as
liberation movements, or by individuals.
The dilemma can by summarized in the saying �One country�s
terrorist is another country�s freedom fighter.� The apparent
contradiction or lack of consistency in the use of the term �terrorism� may
further be demonstrated by the historical fact that leaders of national
liberation movements such as Nelson Mandela in South Africa, Habib
Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a
few, were originally labeled as terrorists by those who controlled the territory
at the time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts �
the differentia specifica distinguishing those acts from eventually legitimate
acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization
has been trying in vain to reach a consensus on the basic issue of
definition. The organization has intensified its efforts recently, but has been
unable to bridge the gap between those who associate �terrorism� with
any violent act by non-state groups against civilians, state functionaries or
infrastructure or military installations, and those who believe in the concept
of the legitimate use of force when resistance against foreign occupation or
against systematic oppression of ethnic and/or religious groups within a
state is concerned.
The dilemma facing the international community can best be
illustrated by reference to the contradicting categorization of organizations
and movements such as Palestine Liberation Organization (PLO) � which
is a terrorist group for Israel and a liberation movement for Arabs and
Muslims � the Kashmiri resistance groups � who are terrorists in the
perception of India, liberation fighters in that of Pakistan � the earlier
Contras in Nicaragua � freedom fighters for the United States, terrorists for
the Socialist camp � or, most drastically, the Afghani Mujahedeen (later to
become the Taliban movement): during the Cold War period they were a
group of freedom fighters for the West, nurtured by the United States, and a
terrorist gang for the Soviet Union. One could go on and on in enumerating
examples of conflicting categorizations that cannot be reconciled in any way
� because of opposing political interests that are at the roots of those
perceptions.
How, then, can those contradicting definitions and conflicting
perceptions and evaluations of one and the same group and its actions be
explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on
whether a state is in the position of an occupying power or in that of a rival,
or adversary, of an occupying power in a given territory, the definition of
terrorism will �fluctuate� accordingly. A state may eventually see itself as
protector of the rights of a certain ethnic group outside its territory and will
therefore speak of a �liberation struggle,� not of �terrorism� when acts
of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a
decision on the definition of terrorism exactly because of these conflicting
interests of sovereign states that determine in each and every instance how
a particular armed movement (i.e. a non-state actor) is labeled in regard to
the terrorists-freedom fighter dichotomy. A �policy of double standards�
on this vital issue of international affairs has been the unavoidable
consequence.
This �definitional predicament� of an organization consisting of
sovereign states � and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! � has become even more serious
in the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being marginalized; and the
problem has become even more acute since the terrorist attacks of 11
September 2001 I the United States.[141]
The absence of a law defining �acts of terrorism� may result in abuse and
oppression on the part of the police or military. An illustration is when a group of persons are
merely engaged in a drinking spree. Yet the military or the police may consider the act as an
act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse
and oppression on their part. It must be remembered that an act can only be considered a crime
if there is a law defining the same as such and imposing the corresponding penalty thereon.
 So far, the word �terrorism� appears only once in our criminal laws, i.e., in P.D. No.
1835 dated January 16, 1981 enacted by President Marcos during the Martial Law regime. This
decree is entitled �Codifying The Various Laws on Anti-Subversion and Increasing The
Penalties for Membership in Subversive Organizations.� The word �terrorism� is mentioned
in the following provision: �That one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by force, violence, terrorism, x x x shall be
punished by reclusion temporal x x x.�
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of
the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define �acts of terrorism.� Since there is no law defining �acts of
terrorism,� it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine
what acts constitute terrorism. Her judgment on this aspect is absolute, without
restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking into
offices and residences, taking over the media enterprises, prohibition and dispersal of all
assemblies and gatherings unfriendly to the administration. All these can be effected in the
name of G.O. No. 5. These acts go far beyond the calling-out power of the President. Certainly,
they violate the due process clause of the Constitution. Thus, this Court declares that the �acts
of terrorism� portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit
acts beyond what are necessary and appropriate to suppress and prevent lawless
violence, the limitation of their authority in pursuing the Order. Otherwise, such acts are
considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that �the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.�[142] The plain import of the
language of the Constitution is that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.[143]
In the Brief Account[144] submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP operatives arrested him on
the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he
was fingerprinted, photographed and booked like a criminal suspect; fourth, he was treated
brusquely by policemen who �held his head and tried to push him� inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang No.
880[145]and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he
was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace
officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense.
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner
David�s warrantless arrest. During the inquest for the charges of inciting to
sedition andviolation of BP 880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the invective �Oust Gloria
Now�and their erroneous assumption that petitioner David was the leader of the
rally.[146] Consequently, the Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and
even if he was wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for the charge of violation of
BP 880 as it was not even known whether petitioner David was the leader of the rally.[147]
But what made it doubly worse for petitioners David et al. is that not only was their
right against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.
�Assembly� means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our republican
institution and complements the right of speech. As in the case of freedom of expression, this
right is not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent. In other words, like other
rights embraced in the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is intended to
be held in a public place, a permit for the use of such place, and not for the assembly itself, may
be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime, neither was
there a showing of a clear and present danger that warranted the limitation of that right. As can
be gleaned from circumstances, the charges of inciting to seditionand violation of BP
880 were mere afterthought. Even the Solicitor General, during the oral argument, failed to
justify the arresting officers� conduct. In De Jonge v. Oregon,[148] it was held that peaceable
assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a
crime. The holding of meetings for peaceable political action cannot be
proscribed. Those who assist in the conduct of such meetings cannot be
branded as criminals on that score. The question, if the rights of free speech
and peaceful assembly are not to be preserved, is not as to the auspices
under which the meeting was held but as to its purpose; not as to the
relations of the speakers, but whether their utterances transcend the bounds
of the freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed or are
engaged in a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violations of valid laws. But it is a
different matter when the State, instead of prosecuting them for such
offenses, seizes upon mere participation in a peaceable assembly and
a lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and
arrest of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal
was done merely on the basis of Malaca�ang�s directive canceling all permits previously
issued by local government units. This is arbitrary. The wholesale cancellation of all permits to
rally is a blatant disregard of the principle that �freedom of assembly is not to be limited,
much less denied, except on a showing of a clear and present danger of a substantive
evil that the State has a right to prevent.�[149] Tolerance is the rule and limitation is the
exception. Only upon a showing that an assembly presents a clear and present danger that the
State may deny the citizens� right to exercise it. Indeed, respondents failed to show or
convince the Court that the rallyists committed acts amounting to lawless violence, invasion or
rebellion. With the blanket revocation of permits, the distinction between protected and
unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged
with the local government units. They have the power to issue permits and to revoke such
permits after due notice and hearing on the determination of the presence of clear and present
danger. Here, petitioners were not even notified and heard on the revocation of their
permits.[150] The first time they learned of it was at the time of the dispersal. Such absence of
notice is a fatal defect. When a person�s right is restricted by government action, it behooves a
democratic government to see to it that the restriction is fair, reasonable, and according to
procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of
speech i.e., the freedom of the press. Petitioners� narration of facts, which the Solicitor
General failed to refute, established the following: first, the Daily Tribune�s offices were
searched without warrant; second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o� clock in the morning of February
25, 2006; fourth, the search was conducted in the absence of any official of the Daily
Tribune except the security guard of the building; and fifth, policemen stationed themselves at
the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid was �meant to show a �strong
presence,� to tell media outlets not to connive or do anything that would help the rebels
in bringing down this government.� Director General Lomibao further stated that �if they
do not follow the standards �and the standards are if they would contribute to instability
in the government, or if they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 � we will recommend a �takeover.�� National Telecommunications
Commissioner Ronald Solis urged television and radio networks to �cooperate� with the
government for the duration of the state of national emergency. He warned that his agency
will not hesitate to recommend the closure of any broadcast outfit that violates rules set
out for media coverage during times when the national security is threatened.[151]
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays
down the steps in the conduct of search and seizure. Section 4 requires that a search
warrant be issued upon probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 8 mandates that the search of a
house, room, or any other premise be made in the presence of the lawful occupantthereof or
any member of his family or in the absence of the latter, in the presence of two (2) witnesses of
sufficient age and discretion residing in the same locality. And Section 9 states that the
warrant must direct that it be served in the daytime, unless the property is on the person or in
the place ordered to be searched, in which case a direction may be inserted that it be served at
any time of the day or night. All these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners� freedom of the press. The best gauge
of a free and democratic society rests in the degree of freedom enjoyed by its media. In
the Burgos v. Chief of Staff[152] this Court held that --
As heretofore stated, the premises searched were the business
and printing offices of the "Metropolitan Mail" and the "We Forum�
newspapers. As a consequence of the search and seizure, these premises
were padlocked and sealed, with the further result that the printing and
publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or
censorship abhorrent to the freedom of the press guaranteed under
the fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even
militant press is essential for the political enlightenment and growth of
the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
�Metropolitan Mail� and �We Forum� newspapers in the above case, yet it cannot be
denied that the CIDG operatives exceeded their enforcement duties. The search and seizure of
materials for publication, the stationing of policemen in the vicinity of the The Daily
Tribune offices, and the arrogant warning of government officials to media, are plain
censorship. It is that officious functionary of the repressive government who tells the citizen that
he may speak only if allowed to do so, and no more and no less than what he is permitted to say
on pain of punishment should he be so rash as to disobey. [153] Undoubtedly, the The Daily
Tribune was subjected to these arbitrary intrusions because of its anti-government
sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it
involves the most defiant of our citizens. Freedom to comment on public affairs is essential to
the vitality of a representative democracy. It is the duty of the courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto
should always be obsta principiis.[154]
 Incidentally, during the oral arguments, the Solicitor General admitted that the search
of the Tribune�s offices and the seizure of its materials for publication and other papers are
illegal; and that the same are inadmissible �for any purpose,� thus: SR. ASSO. JUSTICE PUNO:

JUSTICE CALLEJO: Are you saying that the act of the policeman is
illegal, it is not based on any law, and it is not
based on Proclamation 1017.

You made quite a mouthful of admission when

you said that the policemen, when inspected
the Tribune for the purpose of gathering SOLGEN BENIPAYO:
evidence and you admitted that the
policemen were able to get the clippings. Is
that not in admission of the admissibility of
these clippings that were taken from the It is not based on Proclamation 1017, Your
Tribune? Honor, because there is nothing in 1017
which says that the police could go and
inspect and gather clippings from Daily
Tribune or any other newspaper.
SOLICITOR GENERAL BENIPAYO:

SR. ASSO. JUSTICE PUNO:

Under the law they would seem to be, if they
were illegally seized, I think and I know, Your
Honor, and these are inadmissible for any
purpose.[155] Is it based on any law?

xxx xxx xxx SOLGEN BENIPAYO:

SR. ASSO. JUSTICE PUNO: As far as I know, no, Your Honor, from the
facts, no.

These have been published in the past issues of

the Daily Tribune; all you have to do is to get SR. ASSO. JUSTICE PUNO:
those past issues. So why do you have to go
there at 1 o�clock in the morning and
without any search warrant? Did they
become suddenly part of the evidence of So, it has no basis, no legal basis whatsoever?
rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your

Honor. Not upon my instructions. SOLGEN BENIPAYO:
 Maybe so, Your Honor. Maybe so, that is why I
said, I don�t know if it is premature to say
this, we do not condone this. If the people
who have been injured by this would want
to sue them, they can sue and there are
remedies for this.[156]
Likewise, the warrantless arrests and seizures executed by the police were, according
to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not
contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don�t know whether this will clarify. The acts,
the supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be
condoned. You cannot blame the President for, as
you said, a misapplication of the law. These are acts of
the police officers, that is their responsibility.[157]
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and �should result in no constitutional or statutory breaches if applied according to their
letter.�
The Court has passed upon the constitutionality of these issuances. Its ratiocination
has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to
the calling out by the President of the military to prevent or suppress lawless violence, invasion
or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the
police committed acts which violate the citizens� rights under the Constitution, this Court has to
declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganiban�s concurring opinion,
attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 � a supervening event
� would have normally rendered this case moot and academic. However, while PP 1017 was
still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have
been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed �if the May 1
rallies� become �unruly and violent.� Consequently, the transcendental issues raised by the
parties should not be �evaded;� they must now be resolved to prevent future constitutional
aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a
call by the President for the AFP to prevent or suppress lawless violence. The proclamation is
sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed
earlier. However, PP 1017�s extraneous provisions giving the President express or implied
power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not
related to lawless violence as well as decrees promulgated by the President; and (3) to impose
standards on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17, Article XII of the
Constitution, the President, in the absence of a legislation, cannot take over privately-owned
public utility and private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President � acting as Commander-in-Chief � addressed to subalterns in the AFP to carry out
the provisions of PP 1017. Significantly, it also provides a valid standard � that the military and
the police should take only the �necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence.� But the words �acts of terrorism�
found in G.O. No. 5 have not been legally defined and made punishable by Congress and
should thus be deemed deleted from the said G.O. While �terrorism� has been denounced
generally in media, no law has been enacted to guide the military, and eventually the courts, to
determine the limits of the AFP�s authority in carrying out this portion of G.O. No. 5.
 On the basis of the relevant and uncontested facts narrated earlier, it is also pristine and measures to suppress and prevent acts of lawless violence.� Considering that �acts
clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the of terrorism� have not yet been defined and made punishable by the Legislature, such portion
dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the of G.O. No. 5 is declared UNCONSTITUTIONAL.
imposition of standards on media or any prior restraint on the press; and (4) the warrantless
search of the Tribune offices and the whimsical seizures of some articles for publication and
other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by
the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action
and/or relevant criminal Informations have not been presented before this Court. Elementary
due process bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of
proof that these petitioners were committing acts constituting lawless violence, invasion or
rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint
on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of
its articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

It is well to remember that military power is a means to an end and substantive SO ORDERED.
civil rights are ends in themselves. How to give the military the power it needs to protect
the Republic without unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state. During emergency, governmental action may vary in
breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain
our people�s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority to cope
with crises without surrendering the two vital principles of constitutionalism: the maintenance of
legal limits to arbitrary power, and political responsibility of the government to the
governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on
the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in
PP 1017 declaring national emergency under Section 17, Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does not authorize the President to take over
privately-owned public utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and
the PNP should implement PP 1017, i.e. whatever is �necessary and appropriate actions