G.R. No. L-21327 January 14, 1924 is the Acting Auditor of the Philippine Islands; that Teodoro M.
e Philippine Islands; that Teodoro M. Fernando Mariano Guerrero, said respondents taking advantage
TEODORO ABUEVA, ET AL., petitioners,
vs.
LEONARD WOOD, ET AL., respondents.
Gregorio Perfecto and Alfonso E. Mendoza for petitioners.
Attorney-General Villa-Real for respondents.
Paredes and Buencamino, Ramon Diokno and Santos and
Benitez of counsel.
JOHNSON, J.:
This is an original action commenced in the Supreme Court by
the petitioners for the writ of mandamus, to compel the
respondents to exhibit to the petitioners and to permit them to
examine all the vouchers and other documentary proofs in their
possession, showing the disbursements and expenditures made
by them out of the funds of the Independence Commission. To
the petition each of the respondents demurred. In order that
there may be a clear understanding of the arguments in support
of the demurrer, a statement of the facts as they appear in the
petition becomes necessary. They are:
(1) That the petitioners are and have been for more than six
months members of the Independence Commission, created by
virtue of the Concurrent Resolution No. 20 (vol. 14, Public Laws,
p. 343), adopted on the 7th day of November, 1918, by the
Philippine Legislature; and that the creation of said
Independence Commission had been confirmed and ratified by
Joint Resolution No. 13 (vol. 14, Public Laws, p. 342), adopted by
the Philippine Legislature on the 8th day of March, 1919;
(2) That all and each one of the petitioners are actually members
of the Philippine Legislature, elected at the general election held
on the 6th day of June, 1922; that the first twenty-six of the
petitioners are members of the House of Representatives and
the last four are members of the Senate of the Philippine Islands;
that they all belong to the democratic party;
(3) That the respondent Leonard Wood is the Governor-General
of the Philippine Islands, with his residence and office in the City
of Manila; that Manuel L. Quezon and Manuel Roxas are
Presidents of the Independence Commission; that Paciano Dizon
Kalaw is the Executive Secretary of the Independence
Commission, with a salary of P12,000 per annum, and that
Fernando Mariano Guerrero is the Secretary of the
Independence Commission;
(4) That by Act No. 2933 the Legislature of the Philippine Islands
provided for a standing appropriation of one million pesos
(P1,000,000) per annum, payable out of any funds in the Insular
Treasury, not otherwise appropriated, to defray the expenses of
the Independence Commission, including publicity and all other
expenses in connection with the performance of its duties; that
said appropriation shall be considered as included in the annual
appropriation for the Senate and the House of Representatives,
at the rate of P500,000 for each house, although the
appropriation act hereafter approved may not make any specific
appropriation for said purpose; with the proviso that no part of
said sum shall be set upon the books of the Insular Auditor until
it shall be necessary to make the payment or payments
authorized by said act;
(5) That the petitioners are citizens and taxpayers and persons
interested in knowing how the public funds are expended; that
as members of the Legislature they are entrusted with the
honest investment, disposition, and administration of the public
funds of the Government; that as members of the Independence
Commission they are legally obliged to prevent the funds of said
Commission from being squandered, and to prevent any
investments and illicit expenses in open contravention of the
purposes of the law; that the petitioners have verbally and by
writing requested the respondents many times to exhibit to
them and to permit them to see and examine the vouchers and
other documentary proofs relating to the expenditures and
payments made out of the funds appropriated for the use of the
Independence Commission;
(6) That notwithstanding the fact that the original vouchers
showing the expenses paid out of the Independence Commission
fund are in the possession of the respondent Paciano Dizon, as
Acting Insular Auditor, who is under the control and authority of
the respondent Leonard Wood as Governor-General; and
notwithsta the fact that the duplicates of said vouchers are in
the possession of the officers of the Independence Commission,
Manuel L. Quezon, Manuel Roxas, Teodoro M. Kalaw, and
of all clases of pretexts and subterfuges, have denied and
continue denying to permit the petitioners from examining said
vouchers and documentary proofs of the expenditures of the
funds of said Independence Commission, thus trampling upon
and denying the rights of the petitioners in their capacity as
citizens of the Philippine Islands, as members of the Legislature,
and as members of the Independence Commission, and inflicting
an unpardonable offense upon the electors of the Philippine
Islands, who confided their votes and their representation in the
petitioners;
(7) That the petitioners not only have a recognized right under
the law, but also the important duty of knowing how the funds
of the Commission are managed; that much of the funds of the
Independence Commission is being used for purposes contrary
to the Concurrent Resolution No. 20 of the 7th day of
November, 1918;
(8) That the petitioners are without other plain, speedy, and
adequate remedy.
To the petition the Attorney-General, Antonio Villa-Real,
appeared as attorney for the respondents Leonard Wood, as
Governor-General, Manuel L. Quezon and Manuel Roxas as
Chairmen of the Independence Commission, and entered a
special appearance for the purpose of objecting to the
jurisdiction of the court over his clients, upon the ground, first,
that Leonard Wood, as Governor-General of the Philippine
Islands and head of the executive department of the Philippine
Government, is not subject to the control or supervision of the
courts, and second, that Manuel L. Quezon and Manuel Roxas,
as Chairman of the Independence Commission, are mere agents
of the Philippine Legislature and cannot be controlled or
interfered with by the courts.
The Attorney-General appeared on behalf of Paciano Dizon, as
Acting Auditor of the Philippine Islands, and demurred to the
petition upon the ground:
First, that the court has no jurisdiction of the subject of the
action because section 24 of the Jones Law provides that: "The
administrative jurisdiction of the Auditor over accounts, whether
of funds or property, and all vouchers and records pertaining
thereto, shall be exclusive;" and also because the determination
of whether the accounts of the expenses of the Commission of
Independence should be shown to the plaintiffs or not, is a
question of policy and administrative discretion, and is therefore
not justiciable;
Second, that the complaint does not state a cause of action in
that (a) there is no provision of law making it the duty of the
Auditor to exhibit the vouchers of expenses of the Independence
Commission to anybody that may ask for the privilege, and it is a
well-established rule that mandamus will not issue if there is no
legal duty to be enforced; (b) the work of the Independence
Commission is largely of a political and confidential nature, so
that the granting of the writ to compel the exhibition of its
records to the plaintiffs or to the public in general would be
contrary to public interest; (c) the plaintiffs have another plain,
speedy, and adequate remedy at law, to wit: by addressing their
petition to the Independence Commission or to the Philippine
Legislature itself, of both of which bodies the said plaintiffs are
members;
Third, the plaintiffs have no beneficial interest in the act which
they seek to have performed, or any particular right to be
protected thereby, independent of that which they hold in
common with the public at large, to make them proper parties
to these proceedings and to entitle them to maintain the same;
Fourth, that the complaint is ambiguous, unintelligible, and
uncertain.
The Attorney-General appeared on behalf of the respondents
Teodoro M. Kalaw and Fernando Mariano Guerrero, and
demurred to the petition upon the following grounds:
First, that the court has no jurisdiction of the subject-matter of
the action, because (a) the Commission of Independence is a
commission of the Philippine Legislature; that the funds
appropriated by Act No. 2933 to defray the expenses of said
Commission is, under the same law, deemed a part of the
appropriation for the Legislature; that the vouchers and other
documents relative to the disbursement of said funds form a
part of the record of the Legislature, over which the Legislature
has exclusive control; that it is for the Legislature to decide
whether or not its record should be shown to the public, and
that the courts cannot determine that question without
encroaching upon the domain of a coordinate branch of the
government; and (b) that said respondents are not officers with
specific duties assigned by law but are acting as mere agents of
the Philippine Legislature, and as agents of the Legislature, their
action cannot be controlled by the court;
Second, that the petitioners have no beneficial interest in the act
which they seek to have performed, or any right to be protected
thereby, independent from that which they hold in common
with the public at large, to make them proper parties to the
proceedings and to entitle them to maintain the same;
Third, that there is a misjoinder of parties defendant, in that the
respondents are not proper parties to these proceedings for the
reason that, as mere officers of the Commission of
Independence, they have neither the right nor the power to
exhibit the records of the said Commission without the
authorization or consent of the latter;
Fourth, that the complaint does not state facts sufficient to
constitute a cause of action, in that: (a) there is no provision of
law making it the duty of the Philippine Legislature, of the
Commission of Independence, and much less of both or either of
these respondents, to exhibit the records of the Commission to
any person that may ask for the same; (b) the duties sought to
be enforced by the petitioners, granting that they exist, are, by
nature, discretionary and political, their performance being left
to the judgment of these respondents or of their superiors; (c)
that the plaintiffs have another plain, speedy and adequate
remedy, to wit: by addressing their petition to the Commission
of Independence or to the Philippine Legislature itself. The
complaint does not show that this has been done. The plaintiffs
not having exhausted their remedy at law, they are not entitled
to the extraordinary remedy of mandamus; (d) that the granting
will be prejudicial to the public interest;
Fifth, the petition is ambiguous, unintelligible, and uncertain.
The particular defense presented by each of the respondents has
been set out in full in order that their respective positions might
be clearly shown. At the close of the argument each requested
ten days in which to present a memorandum in support of his
respective contention. Later, the Attorney-General presented an
extensive memorandum for the respondents in support of his
contention. The petitioners failed to present a memorandum in
support of their contention.
The petition calls upon the judicial department of the
Government to direct some of the officials of the executive and
Legislative departments to permit the petitioners to see and
examine the vouchers showing the various expenditures of the
"Independence Commission," out of the appropriation
authorized by Act No. 2933. The petition presents no question
concerning the legality of said appropriation. That would be
quite a different question from the one which were are
considering. The petition presents but one question and that is:
Has the judicial department of the Government jurisdiction or
authority to direct either or both of the other departments of
the Government to do or to perform any duty which pertains
particularly to those departments of the Government?
The question presented is not a new one, and this is not the first
time that it has been presented to the courts for solution.
Neither is it the first time it has been presented to the courts
here.
The Government of the United State in the Philippine Islands is
divided under its charter or constitution (the Organic Act) into
three great, separate, distinct, and independent departments;
the executive, the legislative, and the judicial. The duties of each
department are well defined and limited to certain fields of
governmental operation. This government is modeled after the
Federal or state governments of the United States, and
possesses a complete governmental organization with executive,
legislative, and judicial departments which are exercising
functions, as independent of each other, as the Federal or state
governments.
We shall consider the questions in the order in which they have
been argued by the respondents.
First. Have the courts of the Philippine Islands jurisdiction to
issue the writ of mandamus against Leonard Wood, as Governor-
General, to compel him to permit the petitioners to see and
examine the vouchers in question? In the first place section 222
of Act No. 190 provides generally when courts may issue the writ
of mandamus. Said section provides that "when the complaint in
an action in a court of first instance alleges that any inferior
tribunal, corporation, board, or person unlawfully neglects the
performance of an act which the law specially enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes
the plaintiff from the use and enjoyment of a right or office to
which he is entitled and from which he is unlawfully precluded
by such inferior tribunal, corporation, board, or person, and the
court, on trial, finds the allegations of the complaint to be true,
it may, if there is no other plain, speedy, and adequate remedy
in the ordinary courts (course) of law, render a judgment
granting a peremptory order against the defendant,
commanding him, immediately after the receipt of such order,
or at some other specified time, to do the act required (by law or
resulting from an office, trust, or station) to be done to protect
the rights of the plaintiff." Section 515 of Act No. 190 confers
upon the Supreme Court the same powers and duties conferred
upon the courts of first instance by section 222.
It will be noted from said section 222 (and 515) that in order for
the courts to issue the extraordinary remedy of mandamus, it
must be shown that the persons mentioned therein have
unlawfully neglected "the performance of an act which the law
specially enjoins as a duty resulting from an office, trust, or
station," or unlawfully excluded "the plaintiff from the use and
enjoyment of a right or office to which he is entitled, etc."
There is no allegation in the petition in the present case that
Leonard Wood, as Governor-General, has unlawfully neglected
the performance of an act which the law specially enjoins as a
duty upon him resulting from his office, trust, or station, or has
unlawfully excluded the plaintiffs from the use or enjoyment of a
right or office to which they are entitled. The only allegation in
the complaint relating to the duty or the neglected duty on the
part of Leonard Wood as Governor-General is, "that the original
of said vouchers are in possession of the respondent Paciano
Dizon as Acting Insular Auditor, who is under his authority and
high general inspection as Governor-General." There is no
allegation or intimation in the petition that Leonard Wood, as
Governor-General, has neglected the performance of an act
which the law specially enjoins upon him as a duty resulting
from an office, trust, or station or has unlawfully excluded the
petitioners from the use or enjoyment of a right or office to
which they are entitled.
The failure of sufficient allegations in the complaint might
therefore be sufficient reason for denying the right prayed for.
The demurrer, however, is not based upon that ground. It is
based upon the ground that this department of the Government,
even though the allegations of the petition were sufficient, is
without authority or jurisdiction to grant the remedy prayed for.
The Attorney-General preferred to place his objection upon
broader grounds that the mere failure of allegations in the
petition. The Attorney-General challenges the attention of the
petitioners upon the question of jurisdiction. The petitioners
accepted the challenge and the cause was argued upon the
theory that the courts have no jurisdiction at all in the premises
to grant the remedy prayed for as against the Governor-General
of the Philippine Islands. The question whether or not the courts
have jurisdiction to control the official acts of the executive and
legislative departments of the Government has come before the
courts a great many times. The courts in the United States have
not always been uniform in their conclusion.
The question was presented to this court in 1910 in the case of
Severino vs. Governor-General (16 Phil., 366). In that case an
original petition was presented in the Supreme Court, praying
for the writ of mandamus against the Governor-General of the
Philippine Islands to compel him to call a special election for the
purpose of electing a municipal president in the town of Silay.
After a very careful consideration of the question and the power
of this court to control the action of the Governor-General by
mandamus, the court announced, through a very extended
opinion by Mr. Justice Trent, that we could not and should not
entertain a complaint which seeks to control or interfere with
the official duties of the Governor-General. In the course of that
decision practically every case which had been decided up to
that time, pro and con, was carefully considered by the court.
After a full consideration of all of the decisions pro and con, the
conclusion was reached that the better doctrine to be adopted
in the Philippine Islands was, that which the court then adopted,
to the effect that the judicial department would not interfere by
mandamus or otherwise for the purpose of controlling or
directing the action of the officials of a coordinate department
of the Government. The writ of mandamus was originally a
prerogative writ and issued only by the King or the
representative of the Sovereign. It was called a prerogative writ
from the fact that it proceeded from the King himself in his Court
of King's Bench, superintending the police and preserving the
peace of the realm, and it was granted where one is entitled to
an office or function and there was no other remedy. (Opinion of
Lord Mansfield, Chief Justice, in the case of King vs. Barker, 1
Black. W., 352.)
Blackstone terms the writ of mandamus "a high prerogative writ
of a most extensive remedial nature" (3 Blackstone
Commentaries, 110) and it is uniformly referred to in the earlier
decisions as a prerogative remedy, and spoken of by many
judges as one of the flowers of the King's Bench. It is a remedy of
very ancient origin, so ancient that Dr. High in his work on
Extraordinary Legal Remedies says that its early history is
involved in obscurity and has been the cause of much curious
research and of many conflicting opinions. It seems, originally, to
have been one of that large class of writs or mandates by which
the Sovereign of England directed the performance of any
desired act by his subjects. It finally, in the time of the reigns of
Edward II and Edward III, came to be known as a judicial writ and
was issued by authority of the courts. In the United States,
however, and in all of the states of the Union the writ of
mandamus has never been regarded as a judicial remedy. It is
now generally considered as an ordinary action obtained by
petition, demurrer, and answer, as any other remedy is obtained
through the courts.
One of the first cases, and perhaps the first which came before
the Supreme Court of the United States in which the writ of
mandamus was prayed for against an officer of the executive
department of the Government, was that of Marbury vs.
Madison (1 Cranch, U.S., 137-172). In that case Marburry had
been appointed as a justice of the peace for the City of
Washington, D.C., by President Adams, as one of his last official
acts as President of the United States. The commission of the
appointee was properly executed, but had not been delivered at
the time when President Adams cased to be President of the
United States and Mr. Jefferson became President. Mr. Jefferson
directed that the commission appointing Mr. Marbury should
not be delivered. As a result, an action was commenced against
Mr. Madison to obtain the writ of mandamus, requiring him to
deliver said commission. The Supreme Court, after due
deliberation and consideration of its own powers in the
premises, through a very able and learned opinion of Chief
Justice Marshall, reached the conclusion that it had no power or
jurisdiction to issue the writ of mandamus, and that, in the face
of the fact that the Congress of the United States had provided
for the appointment of said justice of the peace and the issuing
of a commission of appointment. To have required Mr. Madison
to deliver the commission of appointment, would have been an
interference with the discretion and duties of the executive
department of the Government, which the Supreme Court of the
United states positively refused to do upon the ground that the
different departments of the government were separate and
independent, and that one department had no right, authority
or jurisdiction to intervene in the performance of the duties of
the other for the purpose of directing and controlling those
duties. The delivery of the commission of appointment to Mr.
Marbury was entirely within the discretion of the executive
department of the government.
Among the numerous cases which have been brought before the
courts, involving the question of the right of the courts to
intervene in the administration of the other independent
departments of the government, we find one of the best-
reasoned cases in that of Sutherland vs. Governor (29 Mich.,
320). The decision in that case was rendered by Mr. Justice
Cooley, one of the greatest and ablest jurists who ever sat upon
any of the courts in the United States. In that case the
Legislature of the State of Michigan had by statute authorized
the Governor of the state to issue a patent to certain public
lands when certain improvements had been made thereon by
any citizen of the state. Mr. Sutherland claimed that he had
complied with the law and requested the Governor to issue to
him a patent for the particular land. The Governor refused for
reasons which were sufficient for himself. A petition for the writ
of mandamus was presented in the Supreme Court, which was
denied upon the ground that the court was without jurisdiction
to direct the Governor of the state in the performance of any
duty which pertained to his particular department. In the course
of that opinion, Mr. justice Cooley, speaking for the court, said:
There is no very clear and palpable line of distinction between
those duties of the governor which are political, and those which
are to be considered miniterial merely; and if we should
undertake to draw one, and to declare that in all cases falling on
one side the line the governor was subject to judicial process,
and in all falling on the other he was independent of it, we
should open the doors to an endless train of litigation, and the
cases would be numerous in which neither the governor nor the
parties would be able to determine whether his conclusion was,
under the law, to be final, and the courts would be appealed to
by every dissatisfied party to subject a coordinate department of
the government to their jurisdiction. However desirable a power
in the judiciary to interfere in such cases might seem from the
standpoint of interested parties, it is manifest that harmony of
action between the executive and judicial departments would be
directly threatened, and that exercise of such power could only
be justified on most imperative reasons. Moreover, it is not
customary in our republican government to confer upon the
governor duties merely ministerial, and in the performance of
which he is to be left no discretion whatever; and the
presumption in all cases must be, where a duty is devolved upon
the chief executive of the State rather than upon an inferior
officer, that it is so because his superior judgment, discretion,
and sense of responsibility were confided in for a more accurate,
faithful, and discreet performance than could be relied upon if
the duty were devolved upon an officer chosen for inferior
duties. . . .
We are not disposed, however, in the present case, to attempt
on any grounds to distinguish it from other cases of executive
duty with a view to lay down a narrow rule which, while
disposing of this motion, may leave the grave question it
presents to be presented again and again in other cases which
the ingenuity of counsel may be able to distinguish in some
minor particulars from the one before us. If a broad general
principle underlies all these cases, and requires the same
decision in all, it would scarcely be respectful to the governor, or
consistent with our own sense of duty, that we should seek to
avoid its application and strive to decide each in succession upon
some narrow and perhaps technical point peculiar to the special
case, if such might be discovered.
The Government of the United States in the Philippine Islands is
one whose powers have been carefully apportioned between
the three distinct departments which have their powers alike
limited and defined, and are of equal dignity and within their
respective spheres of action equally independent. It is a maxim,
under the Government of the United States, that the legislature
cannot dictate to the courts what their judgments shall be, or set
aside or alter such judgments after they had been duly
considered and rendered. It could, says Mr. Justice Cooley,
constitutional liberty would cease to exist; and if the legislature
could in like manner override executive action also, the
government would become only a despotism under popular
forms. On the other hand, it would be readily conceded that no
court can compel the legislature to make or to refrain from
making laws, or to meet or adjourn at its command, or to take
any action whatsoever, though the duty to take it be made ever
so clear by the constitution or the laws. If the courts could
intervene in the administration of the other independent
departments of the government or vice versa, they would
break away from those checks and balances of government
which were meant, under our system of government, to be
checks of cooperation and not of antagonism or mastery, and
would concentrate in their own hands something at least of the
power which the people, either directly or by the action of
their representatives, decided to entrust to the other
departments of the government.
Under the form of government established by the United States
in the Philippine Islands, one department of the government has
no power or authority to inquire into the acts of another, which
acts are performed within the discretion of the other
department. That doctrine has been uniformally maintained
from the very commencement of the government, not only in
the Government of the United States in the Philippine Islands,
but as well in the Government of the United States and that of
the States. The absurdity of any other rule is manifest upon the
slightest meditation. By the organic law of the Philippine Islands
the Governor-General is invested with certain important
political powers, in the exercise of which he is to use his own
discretion and is accountable only to his country in his political
character and to his own conscience. The judicial and executive
departments of the government are distinct and independent,
and neither is responsible to the other for the performance of
its duties and neither can enforce the performance of the
duties of the other. The dangers and difficulties which would
grow out of the adoption of a contrary rule are, by Chief Justice
Taney in the case of Luther vs. Borden (7 Howard, U.S., 1, 44),
clearly and ably pointed out.
No government past or present, under the American flag, has
more carefully and safely guarded and protected by law the
individual rights of life and property of its citizens, that the
Government of the United States and of the various States of the
Union. Each of the three departments of the government has
separate and distinct functions to perform in this great labor.
The history of the United States covering nearly a century and a
half discloses the fact that each department has performed its
part well. No one department of the government can or ever has
claimed, within its discretionary power, a greater zeal than the
others in its desire to promote the welfare of the individual
citizen and to protect his rights. They are all joined together in
their respective spheres, harmoniously working to maintain
good government, peace, and order, to the end that the rights of
each citizen be equally protected. No one department can claim
that it has a monopoly of these benign purposes of the
government. Each department has an exclusive field within
which it can perform its part within certain discretionary limits.
No other department can claim a right to enter these
discretionary limits and assume to act there. No presumption of
an abuse of these discretionary powers by one department will
be considered or entertained by another. Such conduct on the
part of one department, instead of tending to conserve the
government and the rights of the people, would directly tend to
destroy the confidence of the people in the government and to
undermine the very foundations of the government itself, and
lead to disaster, confusion, and uncertainty. (Barcelon vs. Baker
and Thompson, 5 Phil., 87.)
No well-organized government of business even, can be well
managed if one department can enter upon the field of another
attempt to administer or interfere with the administration of the
other. Suppose, for example, the chief of one department of the
government, whose duties are well defined and whose field or
operation is well delimited, should attempt to enter upon the
field of another coordinate and equal department and to
interfere with the administration of that department and to
direct its affairs, disorder and confusion would immediately
arise. This illustration of the interference of one department
with another in any branch of the government fully
demonstrates what would result from an interference by one of
the great departments of the government with the
administration of another.
Of course, nothing which has been said here can be construed to
mean that the Governor-General might not, if the circumstances
justified it, exhibit and deliver to the petitioners the vouchers in
question if in his judgment he thought it was wise to do for the
best interest and highest welfare of the people of the Philippine
Islands. Whether such inspection and examination should be
granted, lies within the absolute discretion of the Governor-
General. If he should deem it important and advisable to
exhibit the vouchers in question to the petitioners or to the
public in order that the taxpayers might know in what manner
their contributions to the government are expended, that is a
question for him to decide. It is purely a political question, and
lies within the breast of the Governor-General. The
responsibility to decide that question rests with him and his
conscience to act as he deems wise in accordance with the best
interest and the highest welfare of the people.
It was argued at the hearing of the present case that the
Philippine Government was a government of laws and not of
men, and that no individual or officer within the state was above
the law, and to deny the petitioners the right which they claim
would be to recognize the doctrine that some officials of the
government are not governed by the law. It was urged by the
petitioners that in the government of laws there must be an
adequate remedy for every wrong and that where a clear right
exists, there must be some mode of enforcing that right. As a
legal proposition, that contention has much weight. But, as was
said in the case of People ex rel. vs. Bissell (19 Ill., 229): "While
human society is governed by so imperfect a being as man, this
can be true only in theory. If we are to compel the governor or
the legislature to right every wrong which may arise from their
omissions of duty, then surely they (the executive and legislative
departments) must, in order to make this Utopian system
perfect, have the power to compel us (the courts) to do right in
every case. May it not be as well supposed that we (the courts)
will act perversely, and refuse to perform a duty imposed upon
us, to the injury of the citizen, as that the governor will do so? In
the formation of the government, equal confidence was
rightfully reposed in each department, to which appropriate and
independent duties were assigned."
In the performance of those independent duties assigned to
each department of the government, a discretion was given.
Such duties were assigned to the respective departments upon
the theory that by reason of the machinery of government
furnished to each department, they could be better and more
efficiently performed by the particular department to which they
had been assigned. Under the theory of the three distinct and
independent departments of the government, it was not
intended that one should encroach upon the field of duty of the
other. It was not intended by the framers of the theory of our
government that the duties which had been assigned to the
executive should be performed by the legislative, nor that the
duties which had been assigned to each of them should be
performed and directed by the judicial department. The reason
why the courts will not entertain jurisdiction to control or direct
the action of the executive or legislative departments of the
government, is not that either of said departments or the
officers thereof are above the law, but because the people, the
organization of their government, deemed it wise to impose
such duties upon those departments. If the courts should take
jurisdiction for the purpose of controlling the acts of the
executive and legislative departments of the government, then
the courts might become the ruling and directing power of the
government and deprive those departments of their legal
functions, contrary to the very fundamental idea of a republican
form of government.
The court exercise no functions of sovereignty. The courts
cannot even execute their judgment except by contempt
proceedings. When a judgment is rendered and becomes final,
its execution depends upon the executive department of the
government. The courts can only pronounce what the law is, and
what the rights of the parties thereunder are. When the courts
pronounce an act of the executive or legislative department of
the government illegal and contrary to the fundamental laws of
the land, it is because the act of the executive department of the
government or the law adopted by the legislative department of
the government, falls within some of the inhibitions of the
fundamental law of the state. The wisdom or advisability of a
particular statute, is not a question for the courts to determine.
If a particular act or statute of the other departments of the
government is within the constitutional power of said
departments, it should be sustained by the courts whether they
agree or not in the wisdom of the act or the enactment. If the
act of the executive department or the enactment of the
legislative department of the government covers subjects not
authorized by the fundamental laws of the land, or by the
constitution, then the courts are not only authorized to take
jurisdiction to consider the same, but are justified in
pronouncing the same illegal and void, no matter how wise and
beneficient they may be. Courts are not justified in measuring
their opinions with the opinions of the other departments of the
government as expressed in their acts, upon questions of the
wisdom, justice, and advisability of a particular act. In exercising
the high authority conferred upon the courts to pronounce
valid or invalid a particular act of the other departments of the
government, they are only the administrators of the public will
as expressed in the fundamental law of the land — the law of
the people. If an act of either of the other departments is to be
held illegal, it is not because the judges or the courts have any
control over them, but because the act is forbidden by the
fundamental law of the land and because the will of the
people, as declared in their law — the fundamental law of the
land — is paramount and must be obeyed even by the other
departments of the government. In pronouncing an act of the
other departments of the government illegal, the courts are
simply interpreting the meaning, force, and application of the
fundamental law of the state.
Another potent reason why the judicial department will not take
jurisdiction of a case for the purpose of directing and controlling
the action of the executive department of the government, is,
first, that it is without the machinery or the power to enforce its
processes. The Governor-General of the Philippine Islands, as
the Chief Executive of the Government, is possessed with the
only machinery by which and through which the orders of the
court and the laws of the country are enforced. The courts are
without power to enforce their orders except in contempt
proceedings, and then only with the assistance of the officers
of the executive department.
Second. What has been said with reference to the issuance of a
writ of mandamus against the Governor-General, as the head
of the executive department of the Government, is equally
applicable to the legislative department of the Government
and its officers when the duty is one pertaining to that
particular department of the Government. It may be asserted
as a principle founded upon the clearest legal reasoning that the
legislature or legislative officers, in so far as concerns their
purely legislative functions, are beyond the control of the courts
by the writ of mandamus. The legislative department, being a
coordinate and independent branch of the government, its
action within its own sphere cannot be revised or controlled by
mandamus by the judicial department, without a gross
usurpation of power upon the part of the latter. When the
legislative department of the government imposes upon its
officers the performance of certain duties which are not
prohibited by the organic law of the land, the performance, the
non-performance, or the manner of the performance is under
the direct control of the legislature, and such officers are not
subject to the direction of the courts. (High on Extraordinary
Legal Remedies [3d edition], 150-152, and cases cited; Turnbull
vs. Giddings, 95 Mich., 314; Sinking Fund Cases, 99 U.S., 700; 25
L. ed., 504; Ex Parte Echols, 39 Ala., 698.)
In the case of Ex Parte Echols the Speaker of the House of
Representatives decided that a bill had not passed by a vote of
two-thirds in that branch of the legislature, and an appeal was
taken from his decision to the house and his decision was
sustained. A member of the House of Representatives presented
a petition for the writ of mandamus in the Supreme Court to
require the Speaker of the House of Representatives to send said
bill to the Senate of the State upon the theory that it had passed
by a majority vote of the House of Representatives. In passing
upon that question, the Supreme Court of Alabama said: "This
court will not interfere with either of the other coordinate
departments of the government, in the legitimate exercise of
their jurisdiction and powers, except to enforce mere ministerial
acts required by law to be performed by some officer thereof;
and not then, if the law leaves it discretionary with the officer or
department. To this extent, and no farther, do the decisions of
this court go, upon this branch of the subject."
Each department of the government should be careful not to
trench upon the powers of the others; and this court should be
the more so, as its decisions are to be taken as the measure, in
the last legal resort, of the powers which pertain to each
department thereof; and while it will uphold its own jurisdiction
and powers, it will be careful not to invade or usurp any that
appropriately belongs to either of the other coordinate branches
of the government. (Miles vs. Bradford, 85 Am. Dec., 643; State
ex rel., Davisson vs. Bolte, 151 Mo., 362; Greenwood Cemetery
Land Co. vs. Routt, 17 Colo., 156; 31 Am. St. Rep., 284.)
The petitioners in the present case, together with others,
constitute a committee (commission) duly appointed by the
Legislature of certain definite and defined purposes, under
Concurrent Resolution No. 20, of November 7, 1918. The
respondents Manuel L. Quezon, Manuel Roxas, Teodoro M.
Kalaw, and Fernando Mariano Guerrero are officers of that
committee (commission). While it has been decided in many
cases that the courts will not interfere with the legislative
department of the government in the performance of its duties,
does that rule apply to the committees duly appointed by the
legislative department of the government and its officers? The
powers and duties conferred upon said committee by the
Legislature, granting the legality of the object and purpose of
said committee, and granting that the Legislature itself had the
power to do and to perform the duties imposed upon said
committee, then an interference by the courts with the
performance of those duties by it would be tantamount to
interfering with the workings and operations of the legislative
branch of the government itself. An interference by the judicial
department of the government with the workings and
operations of the committee of the legislative department
would be tantamount to an interference with the workings and
operations of the legislative department itself. And, again, we
are called upon to say, that one branch of the government
cannot encroach upon the domain of another without danger.
The safety of our institutions depends in no small degree on a
strict observance of this salutary rule. (Sinking Fund Cases, 99
U.S., 700, 718; Clough vs. Curtis, 134 U.S., 361, 371; Wise vs.
Bigger, 79 Va., 269.)
The committee (commission) composed of the petitioners and
others, of which the respondents Quezon, Roxas, Kalaw, and
Guerrero are officers, is responsible to the Legislature itself in
the performance of the duties conferred upon it. The
Legislature may call upon it and demand from time to time
reports of its work and its expenditures. It is alleged that all the
members of the committee, except its secretaries, are
members of the Legislature. The petitioners therefore have a
remedy through the regular machinery of the Legislature for
obtaining the information which they are now seeking. If any
irregularity or illegality appears in the performance of the
duties of either the Legislature or its committees, their
responsibility is to the people and not to the courts. An appeal
in case of illegality and irregularity on the part of the
Legislature, as a body, or of its individual members, may be had
to the people who commissioned them through the ballot and
whose personal representatives they are.
Each department of the government should be sovereign and
supreme in the performance of its duties within its own sphere,
and should be left without interference in the full and free
exercise of all such powers, rights, and duties which rightfully
belong to it. Each department should be left to interprete and
apply, within the constitutional powers conferred upon it,
without interference, what may be termed its political duties.
For one department to assume to interpret, or to apply, or to
attempt to indicate how such political duties should be
performed, would be an unwarranted, gross, and palpable
violation of the duties which were intended by the creation of
the separate and distinct departments of the government.
(Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil., 534, 574;
Barcelon vs. Baker and Thompson, 5 Phil., 87.)
The executive and legislative departments of the government
are frequently called upon to deal with what are known as
political questions, with which the judicial department of the
government has no intervention. In all such questions, in the
first instance the courts have uniformally refused to intervene
for the purpose of directing or controlling the actions of the
other departments. Such questions are many times reserved to
those departments in the organic law of the state. (22 Harvard
Law Review, 132; Parker vs. State, ex rel., Powell, 133 Ind., 178;
18 L.R.A., 569; Farrell vs. United States, 110 Fed. Rep., 942;
Kelley vs. State, 25 Ark., 392; U.S. vs. Holliday, 3 Wallace [U.S.],
407; Message of President Polk to the Congress of the United
States, Apr. 20, 1846.)
And, in addition to all of the foregoing, the petitioners, as
members of the Legislature, may, through the Legislature itself,
require the Independence Commission to make a full and
complete report of all of its operations, including an itemized
statement of its expenditures and thereby obtain the very
information which they are now seeking through the judicial
department of the government.
Third. With reference to the jurisdiction of the court to compel
the Acting Insular Auditor, Mr. Dizon, to comply with the prayer
of the petition, it may be said that the Auditor of the Philippine
Islands, under the law, has (a) exclusive jurisdiction over
government accounts and records pertaining thereto, and (b)
power and authority to audit, in accordance with law and
administrative regulations, all expenditures of funds or property
pertaining to, or held in trust by the Government or the
provinces or municipalities, and to preserve the vouchers
pertaining thereto. The Jones Law further provides that the
decisions of the Auditor shall be final and conclusive upon the
executive branches of the government, except that appeal
therefrom may be taken by the party aggrieved or the head of
the department concerned, within one year, to the Governor-
General, which appeal shall specifically set forth the particular
action of the Auditor from which the exception is taken, with the
reasons and authorities relied upon for reserving such decision.
The law further provides that, in case of a disagreement
between the Governor-General and the Auditor, a further appeal
is permitted to the Secretary of War, whose decision upon the
question presented shall be final and conclusive. (Act of
Congress, August 29, 1916, sections 24 and 25, vol. 12, Public
Laws, pp. 247-249.)
Under said provisions of the Jones Law, the decision of the
Auditor is final and unless an appeal is taken within the time
prescribed. The decision of the Auditor is final unless it is
reversed or modified in the manner provided by law, and the
courts are therefore without jurisdiction to intervene or to
modify his decision in the premises. The administrative
jurisdiction of the Auditor over accounts, whether of funds or
property, and all vouchers and records pertaining thereto, shall
be exclusive. The jurisdiction of the Auditor in auditing and
settling accounts is exclusive, whether of funds or property, and
all vouchers and records pertaining thereto, and his decision or
his accounting of such revenues and receipts and expenditures is
final and conclusive, unless an appeal is taken therefrom within
the period of one year. The Auditor being possessed with
exclusive and final jurisdiction, except on an appeal, to audit all
accounts of expenditures of public funds of the Philippine
Government, it would seem to be a reasonable conclusion to
hold that he has, at least, certain discretionary powers in arriving
at an uncontrolled and independent conclusion. The legislative
department of the government of the United States in the
Philippine Islands would not have made the decisions of the
Auditor final, unless an appeal is taken therefrom, without
intending to give him an uncontrollable discretion with
reference thereto. (Lamb vs. Phipps, 22 Phil., 456; State vs.
Babcock, 22 Neb., 38.)
Without a further discussion of the questions presented, we are
of the opinion, and so decide, that we are without authority or
jurisdiction to grant the remedy prayed for; and the petition is
therefore hereby denied, without any finding as to costs. So
ordered.
[G.R. NO. 166052 : August 29, 2007]
ANAK MINDANAO PARTY-LIST GROUP, as represented by Rep.
Mujiv S. Hataman, and MAMALO DESCENDANTS
ORGANIZATION, INC., as represented by its Chairman Romy
Pardi, Petitioners, v. THE EXECUTIVE SECRETARY, THE HON.
EDUARDO R. ERMITA, and THE SECRETARY OF
AGRARIAN/LAND REFORM, THE HON. RENE C. VILLA,
Respondents.
DECISION
CARPIO MORALES, J.:
Petitioners Anak Mindanao Party-List Group (AMIN) and Mamalo
Descendants Organization, Inc. (MDOI) assail the
constitutionality of Executive Order (E.O.) Nos. 364 and 379,
both issued in 2004, via the present Petition for Certiorari and
Prohibition with prayer for injunctive relief.
E.O. No. 364, which President Gloria Macapagal-Arroyo issued
on September 27, 2004, reads:
EXECUTIVE ORDER NO. 364
TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM
INTO THE DEPARTMENT OF LAND REFORM
WHEREAS, one of the five reform packages of the Arroyo
administration is Social Justice and Basic [N]eeds;
WHEREAS, one of the five anti-poverty measures for social
justice is asset reform;
WHEREAS, asset reforms covers [sic] agrarian reform, urban land
reform, and ancestral domain reform;
WHEREAS, urban land reform is a concern of the Presidential
Commission [for] the Urban Poor (PCUP) and ancestral domain
reform is a concern of the National Commission on Indigenous
Peoples (NCIP);
WHEREAS, another of the five reform packages of the Arroyo
administration is Anti-Corruption and Good Government;
WHEREAS, one of the Good Government reforms of the Arroyo
administration is rationalizing the bureaucracy by consolidating
related functions into one department;
WHEREAS, under law and jurisprudence, the President of the
Philippines has broad powers to reorganize the offices under her
supervision and control;
NOW[,] THEREFORE[,] I, Gloria Macapagal-Arroyo, by the powers
vested in me as President of the Republic of the Philippines, do
hereby order:
SECTION 1. The Department of Agrarian Reform is hereby
transformed into the Department of Land Reform. It shall be
responsible for all land reform in the country, including agrarian
reform, urban land reform, and ancestral domain reform.
SECTION 2. The PCUP is hereby placed under the supervision and
control of the Department of Land Reform. The Chairman of the
PCUP shall be ex-officio Undersecretary of the Department of
Land Reform for Urban Land Reform.
SECTION 3. The NCIP is hereby placed under the supervision and
control of the Department of Land Reform. The Chairman of the
NCIP shall be ex-officio Undersecretary of the Department of
Land Reform for Ancestral Domain Reform.
SECTION 4. The PCUP and the NCIP shall have access to the
services provided by the Department's Finance, Management
and Administrative Office; Policy, Planning and Legal Affairs
Office, Field Operations and Support Services Office, and all
other offices of the Department of Land Reform.
SECTION 5. All previous issuances that conflict with this
Executive Order are hereby repealed or modified accordingly.
SECTION 6. This Executive Order takes effect immediately.
(Emphasis and underscoring supplied)cralawlibrary
E.O. No. 379, which amended E.O. No. 364 a month later or on
October 26, 2004, reads:
EXECUTIVE ORDER NO. 379
AMENDING EXECUTIVE ORDER NO. 364 ENTITLED
TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM
INTO THE DEPARTMENT OF LAND REFORM
WHEREAS, Republic Act No. 8371 created the National
Commission on Indigenous Peoples;
WHEREAS, pursuant to the Administrative Code of 1987, the
President has the continuing authority to reorganize the
administrative structure of the National Government.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of
the Republic of the Philippines, by virtue of the powers vested in
me by the Constitution and existing laws, do hereby order:
Section 1. Amending Section 3 of Executive Order No. 364.
Section 3 of Executive Order No. 364, dated September 27, 2004
shall now read as follows:
"Section 3. The National Commission on Indigenous Peoples
(NCIP) shall be an attached agency of the Department of Land
Reform."
Section 2. Compensation. The Chairperson shall suffer no
diminution in rank and salary.
Section 3. Repealing Clause. All executive issuances, rules and
regulations or parts thereof which are inconsistent with this
Executive Order are hereby revoked, amended or modified
accordingly.
Section 4. Effectivity. This Executive Order shall take effect
immediately. (Emphasis and underscoring in the original)
Petitioners contend that the two presidential issuances are
unconstitutional for violating:
- THE CONSTITUTIONAL PRINCIPLES OF SEPARATION OF POWERS
AND OF THE RULE OF LAW[;]
- THE CONSTITUTIONAL SCHEME AND POLICIES FOR AGRARIAN
REFORM, URBAN LAND REFORM, INDIGENOUS PEOPLES' RIGHTS
AND ANCESTRAL DOMAIN[; AND]

- THE CONSTITUTIONAL RIGHT OF THE PEOPLE AND THEIR
ORGANIZATIONS TO EFFECTIVE AND REASONABLE
PARTICIPATION IN DECISION-MAKING, INCLUDING THROUGH
ADEQUATE CONSULTATION[.]1
By Resolution of December 6, 2005, this Court gave due course
to the Petition and required the submission of memoranda, with
which petitioners and respondents complied on March 24, 2006
and April 11, 2006, respectively.
The issue on the transformation of the Department of Agrarian
Reform (DAR) into the Department of Land Reform (DLR)
became moot and academic, however, the department having
reverted to its former name by virtue of E.O. No. 4562 which
was issued on August 23, 2005.
The Court is thus left with the sole issue of the legality of placing
the Presidential Commission3 for the Urban Poor (PCUP) under
the supervision and control of the DAR, and the National
Commission on Indigenous Peoples (NCIP) under the DAR as an
attached agency.
Before inquiring into the validity of the reorganization,
petitioners' locus standi or legal standing, inter alia,4 becomes a
preliminary question.
The Office of the Solicitor General (OSG), on behalf of
respondents, concedes that AMIN5 has the requisite legal
standing to file this suit as member6 of Congress.
Petitioners find it impermissible for the Executive to intrude into
the domain of the Legislature. They posit that 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.7 They add that to the
extent that 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.8
Indeed, a member of the House of Representatives has standing
to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office.9
The OSG questions, however, the standing of MDOI, a registered
people's organization of Teduray and Lambangian tribesfolk of
(North) Upi and South Upi in the province of Maguindanao.
As co-petitioner, MDOI alleges that it is concerned with the
negative impact of NCIP's becoming an attached agency of the
DAR on the processing of ancestral domain claims. It fears that
transferring the NCIP to the DAR would affect the processing of
ancestral domain claims filed by its members.
Locus standi or legal standing has been defined as a personal
and substantial interest in a 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.10
It has been held that a party who assails the constitutionality of
a statute must have a direct and personal interest. It must show
not only that the law or any governmental act is invalid, but also
that it sustained or is in immediate danger of sustaining some
direct injury as a result of its enforcement, and not merely that it
suffers thereby in some indefinite way. It must show that it has
been or is about to be denied some right or privilege to which it
is lawfully entitled or that it is about to be subjected to some
burdens or penalties by reason of the statute or act complained
of.11
For a concerned party to be allowed to raise a constitutional
question, it must show that (1) it has personally suffered some
actual or threatened injury as a result of the allegedly illegal
conduct of the government, (2) the injury is fairly traceable to
the challenged action, and (3) the injury is likely to be redressed
by a favorable action.12
An examination of MDOI's nebulous claims of "negative impact"
and "probable setbacks"13 shows that they are too abstract to
be considered judicially cognizable. And the line of causation it
proffers between the challenged action and alleged injury is too
attenuated.
Vague propositions that the implementation of the assailed
orders will work injustice and violate the rights of its members
cannot clothe MDOI with the requisite standing. Neither would
its status as a "people's organization" vest it with the legal
standing to assail the validity of the executive orders.14
La Bugal-B laan Tribal Association, Inc. v. Ramos,15 which MDOI
cites in support of its claim to legal standing, is inapplicable as it
is not similarly situated with the therein petitioners who alleged
personal and substantial injury resulting from the mining
activities permitted by the assailed statute. And so is Cruz v.
Secretary of Environment and Natural Resources,16 for the
indigenous peoples' leaders and organizations were not the
petitioners therein, who necessarily had to satisfy the locus
standi requirement, but were intervenors who sought and were
allowed to be impleaded, not to assail but to defend the
constitutionality of the statute.
Moreover, MDOI raises no issue of transcendental importance to
justify a relaxation of the rule on legal standing. To be accorded
standing on the ground of transcendental importance, Senate of
the Philippines v. Ermita17 requires that the following elements
must be established: (1) the public character of the funds 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 government, and
(3) the lack of any other party with a more direct and specific
interest in raising the questions being raised. The presence of
these elements MDOI failed to establish, much less allege.
Francisco, Jr. v. Fernando18 more specifically declares that the
transcendental importance of the issues raised must relate to
the merits of the petition.
This Court, not being a venue for the ventilation of generalized
grievances, must thus deny adjudication of the matters raised by
MDOI.
Now, on AMIN's position. AMIN charges the Executive
Department with transgression of the principle of separation of
powers.
Under the principle of separation of powers, Congress, the
President, and the Judiciary may not encroach on fields allocated
to each of them. The legislature is generally limited to the
enactment of laws, the executive to the enforcement of laws,
and the judiciary to their interpretation and application to cases
and controversies. The principle presupposes mutual respect by
and between the executive, legislative and judicial departments
of the government and calls for them to be left alone to
discharge their duties as they see fit.19
AMIN contends that since the DAR, PCUP and NCIP were created
by statutes,20 they can only be transformed, merged or
attached by statutes, not by mere executive orders.
While AMIN concedes that the executive power is vested in the
President21 who, as Chief Executive, holds the power of control
of all the executive departments, bureaus, and offices,22 it
posits that this broad power of control including the power to
reorganize is qualified and limited, for it cannot be exercised in a
manner contrary to law, citing the constitutional duty23 of the
President to ensure that the laws, including those creating the
agencies, be faithfully executed.
AMIN cites the naming of the PCUP as a presidential commission
to be clearly an extension of the President, and the creation of
the NCIP as an "independent agency under the Office of the
President."24 It thus argues that since the legislature had seen
fit to create these agencies at separate times and with distinct
mandates, the President should respect that legislative
disposition.
In fine, AMIN contends that any reorganization of these
administrative agencies should be the subject of a statute.
AMIN's position fails to impress.
The Constitution confers, by express provision, the power of
control over executive departments, bureaus and offices in the
President alone. And it lays down a limitation on the legislative
power.
The line that delineates the Legislative and Executive power is
not indistinct. Legislative power is "the authority, under the
Constitution, to make laws, and to alter and repeal them." The
Constitution, as the will of the people in their original, sovereign
and unlimited capacity, has vested this power in the Congress of
the Philippines. The grant of legislative power to Congress is
broad, general and comprehensive. The legislative body
possesses plenary power for all purposes of civil government.
Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has
lodged it elsewhere. In fine, except as limited by the
Constitution, either expressly or impliedly, legislative power
embraces all subjects and extends to matters of general concern
or common interest.
While Congress is vested with the power to enact laws, the
President executes the laws. The executive power is vested in
the President. It is generally defined as the power to enforce and
administer the laws. It is the power of carrying the laws into
practical operation and enforcing their due observance.
As head of the Executive Department, the President is the Chief
Executive. He represents the government as a whole and sees to
it that all laws are enforced by the officials and employees of his
department. He has control over the executive department,
bureaus and offices. This means that he has the authority to
assume directly the functions of the executive department,
bureau and office, or interfere with the discretion of its officials.
Corollary to the power of control, the President also has the duty
of supervising and enforcement of laws for the maintenance of
general peace and public order. Thus, he is granted
administrative power over bureaus and offices under his control
to enable him to discharge his duties effectively.25 (Italics
omitted, underscoring supplied)
The Constitution's 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.26
In enacting a statute, the legislature is presumed to have
deliberated with full knowledge of all existing laws and
jurisprudence on the subject.27 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 President's power to reorganize.
In establishing an executive department, bureau or office, the
legislature necessarily ordains an executive agency's position in
the scheme of administrative structure. Such determination is
primary,28 but subject to the President's 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.29 The Administrative Code of 1987 is one such law:30
SEC. 30. Functions of Agencies under the Office of the President.
- Agencies under the Office of the President shall continue to
operate and function in accordance with their respective
charters or laws creating them, except as otherwise provided in
this Code or by law.
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:
(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;
andcralawlibrary
(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.31
(Italics in the original; emphasis and underscoring supplied)
In carrying out the laws into practical operation, the President is
best equipped to assess whether an executive agency ought to
continue operating in accordance with its charter or the law
creating it. This is not to say that the legislature is incapable of
making a similar assessment and appropriate action within its
plenary power. The Administrative Code of 1987 merely
underscores the need to provide the President with suitable
solutions to situations on hand to meet the exigencies of the
service that may call for the exercise of the power of control.
x x x 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. This is the rationale behind the President's continuing
authority to reorganize the administrative structure of the Office
of the President.32
The Office of the President consists of the Office of the President
proper and the agencies under it.33 It is not disputed that PCUP
and NCIP were formed as agencies under the Office of the
President.34 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 the Office for policy
and program coordination, and those that are not placed by law
or order creating them under any special department.35
As thus provided by law, the President may transfer any agency
under the Office of the President to any other department or
agency, subject to the policy in the Executive Office and in order
to achieve simplicity, economy and efficiency. Gauged against
these guidelines,36 the challenged executive orders may not be
said to have been issued with grave abuse of discretion or in
violation of the rule of law.
The references in E.O. 364 to asset reform as an anti-poverty
measure for social justice and to rationalization of the
bureaucracy in furtherance of good government37 encapsulate a
portion of the existing "policy in the Executive Office." As
averred by the OSG, the President saw it fit to streamline the
agencies so as not to hinder the delivery of crucial social
reforms.38
The consolidation of functions in E.O. 364 aims to attain the
objectives of "simplicity, economy and efficiency" as gathered
from the provision granting PCUP and NCIP access to the range
of services provided by the DAR's technical offices and support
systems.39
The characterization of the NCIP as an independent agency
under the Office of the President does not remove said body
from the President's control and supervision with respect to its
performance of administrative functions. So it has been opined:
That Congress did not intend to place the NCIP under the control
of the President in all instances is evident in the IPRA itself,
which provides that the decisions of the NCIP in the exercise of
its quasi-judicial functions shall be appealable to the Court of
Appeals, like those of the National Labor Relations Commission
(NLRC) and the Securities and Exchange Commission (SEC).
Nevertheless, the NCIP, although independent to a certain
degree, was placed by Congress "under the office of the
President" and, as such, is still subject to the President's power
of control and supervision granted under Section 17, Article VII
of the Constitution with respect to its performance of
administrative functions[.]40 (Underscoring
supplied)cralawlibrary
In transferring the NCIP to the DAR as an attached agency, the
President effectively tempered the exercise of presidential
authority and considerably recognized that degree of
independence.
The Administrative Code of 1987 categorizes administrative
relationships into (1) supervision and control, (2) administrative
supervision, and (3) attachment.41 With respect to the third
category, it has been held that an attached agency has a larger
measure of independence from the Department to which it is
attached than one which is under departmental supervision and
control or administrative supervision. This is borne out by the
"lateral relationship" between the Department and the attached
agency. The attachment is merely for "policy and program
coordination."42 Indeed, the essential autonomous character of
a board is not negated by its attachment to a commission.43
AMIN argues, however, that there is an anachronism of sorts
because there can be no policy and program coordination
between conceptually different areas of reform. It claims that
the new framework subsuming agrarian reform, urban land
reform and ancestral domain reform is fundamentally
incoherent in view of the widely different contexts.44 And it
posits that it is a substantive transformation or reorientation
that runs contrary to the constitutional scheme and policies.
AMIN goes on to proffer the concept of "ordering the law"45
which, so it alleges, can be said of the Constitution's distinct
treatment of these three areas, as reflected in separate
provisions in different parts of the Constitution.46 It argues that
the Constitution did not intend an over-arching concept of
agrarian reform to encompass the two other areas, and that
how the law is ordered in a certain way should not be
undermined by mere executive orders in the guise of
administrative efficiency.
The Court is not persuaded.
The interplay of various areas of reform in the promotion of
social justice is not something implausible or unlikely.47 Their
interlocking nature cuts across labels and works against a rigid
pigeonholing of executive tasks among the members of the
President's official family. Notably, the Constitution inhibited
from identifying and compartmentalizing the composition of the
Cabinet. In vesting executive power in one person rather than in
a plural executive, the evident intention was to invest the power
holder with energy.48
AMIN takes premium on the severed treatment of these reform
areas in marked provisions of the Constitution. It is a precept,
however, that inferences drawn from title, chapter or section
headings are entitled to very little weight.49 And so must
reliance on sub-headings,50 or the lack thereof, to support a
strained deduction be given the weight of helium.
Secondary aids may be consulted to remove, not to create
doubt.51 AMIN's thesis unsettles, more than settles the order of
things in construing the Constitution. Its interpretation fails to
clearly establish that the so-called "ordering" or arrangement of
provisions in the Constitution was consciously adopted to imply
a signification in terms of government hierarchy from where a
constitutional mandate can per se be derived or asserted. It fails
to demonstrate that the "ordering" or layout was not simply a
matter of style in constitutional drafting but one of intention in
government structuring. With its inherent ambiguity, the
proposed interpretation cannot be made a basis for declaring a cognizance of speculative or hypothetical cases, advisory
law or governmental act unconstitutional. opinions and cases that have become moot.56

A law has in its favor the presumption of constitutionality. For it
to be nullified, it must be shown that there is a clear and
unequivocal breach of the Constitution. The ground for nullity
must be clear and beyond reasonable doubt.52 Any reasonable
doubt should, following the universal rule of legal hermeneutics,
be resolved in favor of the constitutionality of a law.53
Ople v. Torres54 on which AMIN relies is unavailing. In that case,
an administrative order involved a system of identification that
required a "delicate adjustment of various contending state
policies" properly lodged in the legislative arena. It was declared
unconstitutional for dealing with a subject that should be
covered by law and for violating the right to privacy.
In the present case, AMIN glaringly failed to show how the
reorganization by executive fiat would hamper the exercise of
citizen's rights and privileges. It rested on the ambiguous
conclusion that the reorganization jeopardizes economic, social
and cultural rights. It intimated, without expounding, that the
agendum behind the issuances is to weaken the indigenous
peoples' rights in favor of the mining industry. And it raised
concerns about the possible retrogression in DAR's performance
as the added workload may impede the implementation of the
comprehensive agrarian reform program.ςηαñrοblεš νιrâ€
υαl lαω lιbrαrÿ
Finally, a word on the last ground proffered for declaring the
unconstitutionality of the assailed issuances ─ that they violate
Section 16, Article XIII of the Constitution57 on the people's right
to participate in decision-making through adequate consultation
mechanisms.
The framers of the Constitution recognized that the consultation
mechanisms were already operating without the State's action
by law, such that the role of the State would be mere facilitation,
not necessarily creation of these consultation mechanisms. The
State provides the support, but eventually it is the people,
properly organized in their associations, who can assert the right
and pursue the objective. Penalty for failure on the part of the
government to consult could only be reflected in the ballot box
and would not nullify government action.58
WHEREFORE, the petition is DISMISSED. Executive Order Nos.
364 and 379 issued on September 27, 2004 and October 26,
2004, respectively, are declared not unconstitutional.
SO ORDERED.

AMIN has not shown, however, that by placing the NCIP as an

attached agency of the DAR, the President altered the nature
and dynamics of the jurisdiction and adjudicatory functions of
the NCIP concerning all claims and disputes involving rights of
indigenous cultural communities and

indigenous peoples. Nor has it been shown, nay alleged, that the
reorganization was made in bad faith.
As for the other arguments raised by AMIN which pertain to the
wisdom or soundness of the executive decision, the Court finds
it unnecessary to pass upon them. The raging debate on the
most fitting framework in the delivery of social services is
endless in the political arena. It is not the business of this Court
to join in the fray. Courts have no judicial power to review cases
involving political questions and, as a rule, will desist from taking
G.R. No. 208566 November 19, 2013
GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR.
JOSE L. GONZALEZ REUBEN M. ABANTE and QUINTIN PAREDES
SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR.
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B.
ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF
THE PHILIPPINES represented by FRANKLIN M. DRILON m his
capacity as SENATE PRESIDENT and HOUSE OF
REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR.
in his capacity as SPEAKER OF THE HOUSE, Respondents.
x-----------------------x
G.R. No. 208493
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S.
ALCANTARA, Petitioner,
vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE
PRESIDENT and HONORABLE FELICIANO S. BELMONTE, JR., in
his capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES,
Respondents.
x-----------------------x
G.R. No. 209251
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque
Former Provincial Board Member -Province of Marinduque,
Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY
FLORENCIO BUTCH ABAD, DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
DECISION
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1
-James Madison
Before the Court are consolidated petitions2 taken under Rule
65 of the Rules of Court, all of which assail the constitutionality
of the Pork Barrel System. Due to the complexity of the subject
matter, the Court shall heretofore discuss the system‘s
conceptual underpinnings before detailing the particulars of the
constitutional challenge.
The Facts
I. Pork Barrel: General Concept.
"Pork Barrel" is political parlance of American -English origin.3
Historically, its usage may be traced to the degrading ritual of
rolling out a barrel stuffed with pork to a multitude of black
slaves who would cast their famished bodies into the porcine
feast to assuage their hunger with morsels coming from the
generosity of their well-fed master.4 This practice was later
compared to the actions of American legislators in trying to
direct federal budgets in favor of their districts.5 While the
advent of refrigeration has made the actual pork barrel obsolete,
it persists in reference to political bills that "bring home the
bacon" to a legislator‘s district and constituents.6 In a more
technical sense, "Pork Barrel" refers to an appropriation of
government spending meant for localized projects and secured
solely or primarily to bring money to a representative's district.7
Some scholars on the subject further use it to refer to legislative
control of local appropriations.8
In the Philippines, "Pork Barrel" has been commonly referred to
as lump-sum, discretionary funds of Members of the
Legislature,9 although, as will be later discussed, its usage would
evolve in reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,10 or the Public Works Act of 1922, is considered11 as
the earliest form of "Congressional Pork Barrel" in the
Philippines since the utilization of the funds appropriated
therein were subjected to post-enactment legislator approval.
Particularly, in the area of fund release, Section 312 provides
that the sums appropriated for certain public works projects13
"shall be distributed x x x subject to the approval of a joint
committee elected by the Senate and the House of
Representatives. "The committee from each House may also
authorize one of its members to approve the distribution made
by the Secretary of Commerce and Communications."14 Also, in
the area of fund realignment, the same section provides that the
said secretary, "with the approval of said joint committee, or of
the authorized members thereof, may, for the purposes of said
distribution, transfer unexpended portions of any item of
appropriation under this Act to any other item hereunder."
In 1950, it has been documented15 that post-enactment
legislator participation broadened from the areas of fund release
and realignment to the area of project identification. During that
year, the mechanics of the public works act was modified to the
extent that the discretion of choosing projects was transferred
from the Secretary of Commerce and Communications to
legislators. "For the first time, the law carried a list of projects
selected by Members of Congress, they ‘being the
representatives of the people, either on their own account or by
consultation with local officials or civil leaders.‘"16 During this
period, the pork barrel process commenced with local
government councils, civil groups, and individuals appealing to
Congressmen or Senators for projects. Petitions that were
accommodated formed part of a legislator‘s allocation, and the
amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then
integrated into the administration bill prepared by the
Department of Public Works and Communications. Thereafter,
the Senate and the House of Representatives added their own
provisions to the bill until it was signed into law by the President
– the Public Works Act.17 In the 1960‘s, however, pork barrel
legislation reportedly ceased in view of the stalemate between
the House of Representatives and the Senate.18
B. Martial Law Era (1972-1986).
While the previous" Congressional Pork Barrel" was apparently
discontinued in 1972 after Martial Law was declared, an era
when "one man controlled the legislature,"19 the reprieve was
only temporary. By 1982, the Batasang Pambansa had already
introduced a new item in the General Appropriations Act (GAA)
called the" Support for Local Development Projects" (SLDP)
under the article on "National Aid to Local Government Units".
Based on reports,20 it was under the SLDP that the practice of
giving lump-sum allocations to individual legislators began, with
each assemblyman receiving ₱500,000.00. Thereafter,
assemblymen would communicate their project preferences to
the Ministry of Budget and Management for approval. Then, the
said ministry would release the allocation papers to the Ministry
of Local Governments, which would, in turn, issue the checks to
the city or municipal treasurers in the assemblyman‘s locality. It
has been further reported that "Congressional Pork Barrel"
projects under the SLDP also began to cover not only public
works projects, or so- called "hard projects", but also "soft
projects",21 or non-public works projects such as those which
would fall under the categories of, among others, education,
health and livelihood.22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino Administration (1986-1992).
After the EDSA People Power Revolution in 1986 and the
restoration of Philippine democracy, "Congressional Pork Barrel"
was revived in the form of the "Mindanao Development Fund"
and the "Visayas Development Fund" which were created with
lump-sum appropriations of ₱480 Million and ₱240 Million,
respectively, for the funding of development projects in the
Mindanao and Visayas areas in 1989. It has been documented23
that the clamor raised by the Senators and the Luzon legislators
for a similar funding, prompted the creation of the "Countrywide
Development Fund" (CDF) which was integrated into the 1990
GAA24 with an initial funding of ₱2.3 Billion to cover "small local
infrastructure and other priority community projects."
Under the GAAs for the years 1991 and 1992,25 CDF funds were,
with the approval of the President, to be released directly to the
implementing agencies but "subject to the submission of the
required list of projects and activities."Although the GAAs from
1990 to 1992 were silent as to the amounts of allocations of the
individual legislators, as well as their participation in the
identification of projects, it has been reported26 that by 1992,
Representatives were receiving ₱12.5 Million each in CDF funds,
while Senators were receiving ₱18 Million each, without any
limitation or qualification, and that they could identify any kind
of project, from hard or infrastructure projects such as roads,
bridges, and buildings to "soft projects" such as textbooks,
medicines, and scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993,28 the GAA explicitly stated that
the release of CDF funds was to be made upon the submission of
the list of projects and activities identified by, among others,
individual legislators. For the first time, the 1993 CDF Article
included an allocation for the Vice-President.29 As such,
Representatives were allocated ₱12.5 Million each in CDF funds,
Senators, ₱18 Million each, and the Vice-President, ₱20 Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same
provisions on project identification and fund release as found in
the 1993 CDF Article. In addition, however, the Department of
Budget and Management (DBM) was directed to submit reports
to the Senate Committee on Finance and the House Committee
on Appropriations on the releases made from the funds.33
Under the 199734 CDF Article, Members of Congress and the
Vice-President, in consultation with the implementing agency
concerned, were directed to submit to the DBM the list of 50%
of projects to be funded from their respective CDF allocations
which shall be duly endorsed by (a) the Senate President and the
Chairman of the Committee on Finance, in the case of the
Senate, and (b) the Speaker of the House of Representatives and
the Chairman of the Committee on Appropriations, in the case of
the House of Representatives; while the list for the remaining
50% was to be submitted within six (6) months thereafter. The
same article also stated that the project list, which would be
published by the DBM,35 "shall be the basis for the release of
funds" and that "no funds appropriated herein shall be
disbursed for projects not included in the list herein required."
The following year, or in 1998,36 the foregoing provisions
regarding the required lists and endorsements were reproduced,
except that the publication of the project list was no longer
required as the list itself sufficed for the release of CDF Funds.
The CDF was not, however, the lone form of "Congressional Pork
Barrel" at that time. Other forms of "Congressional Pork Barrel"
were reportedly fashioned and inserted into the GAA (called
"Congressional Insertions" or "CIs") in order to perpetuate the
ad ministration‘s political agenda.37 It has been articulated that
since CIs "formed part and parcel of the budgets of executive
departments, they were not easily identifiable and were thus
harder to monitor." Nonetheless, the lawmakers themselves as
well as the finance and budget officials of the implementing
agencies, as well as the DBM, purportedly knew about the
insertions.38 Examples of these CIs are the Department of
Education (DepEd) School Building Fund, the Congressional
Initiative Allocations, the Public Works Fund, the El Niño Fund,
and the Poverty Alleviation Fund.39 The allocations for the
School Building Fund, particularly, ―shall be made upon prior
consultation with the representative of the legislative district
concerned.”40 Similarly, the legislators had the power to direct
how, where and when these appropriations were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
In 1999,42 the CDF was removed in the GAA and replaced by
three (3) separate forms of CIs, namely, the "Food Security
Program Fund,"43 the "Lingap Para Sa Mahihirap Program
Fund,"44 and the "Rural/Urban Development Infrastructure
Program Fund,"45 all of which contained a special provision
requiring "prior consultation" with the Member s of Congress for
the release of the funds.
It was in the year 200046 that the "Priority Development
Assistance Fund" (PDAF) appeared in the GAA. The requirement
of "prior consultation with the respective Representative of the
District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the
2000 PDAF Article. Moreover, realignment of funds to any
expense category was expressly allowed, with the sole condition
that no amount shall be used to fund personal services and
other personnel benefits.47 The succeeding PDAF provisions
remained the same in view of the re-enactment48 of the 2000
GAA for the year 2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-
2010).
The 200249 PDAF Article was brief and straightforward as it
merely contained a single special provision ordering the release
of the funds directly to the implementing agency or local
government unit concerned, without further qualifications. The
following year, 2003,50 the same single provision was present,
with simply an expansion of purpose and express authority to
realign. Nevertheless, the provisions in the 2003 budgets of the
Department of Public Works and Highways51 (DPWH) and the
DepEd52 required prior consultation with Members of Congress
on the aspects of implementation delegation and project list
submission, respectively. In 2004, the 2003 GAA was re-
enacted.53
In 2005,54 the PDAF Article provided that the PDAF shall be used
"to fund priority programs and projects under the ten point
agenda of the national government and shall be released directly
to the implementing agencies." It also introduced the program
menu concept,55 which is essentially a list of general programs
and implementing agencies from which a particular PDAF project
may be subsequently chosen by the identifying authority. The
2005 GAA was re-enacted56 in 2006 and hence, operated on the
same bases. In similar regard, the program menu concept was
consistently integrated into the 2007,57 2008,58 2009,59 and
201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with
respect to the specific amounts allocated for the individual
legislators, as well as their participation in the proposal and
identification of PDAF projects to be funded. In contrast to the
PDAF Articles, however, the provisions under the DepEd School
Building Program and the DPWH budget, similar to its
predecessors, explicitly required prior consultation with the
concerned Member of Congress61 anent certain aspects of
project implementation.
Significantly, it was during this era that provisions which allowed
formal participation of non-governmental organizations (NGO) in
the implementation of government projects were introduced. In
the Supplemental Budget for 2006, with respect to the
appropriation for school buildings, NGOs were, by law,
encouraged to participate. For such purpose, the law stated that
"the amount of at least ₱250 Million of the ₱500 Million allotted
for the construction and completion of school buildings shall be
made available to NGOs including the Federation of Filipino-
Chinese Chambers of Commerce and Industry, Inc. for its
"Operation Barrio School" program, with capability and proven
track records in the construction of public school buildings x x
x."62 The same allocation was made available to NGOs in the
2007 and 2009 GAAs under the DepEd Budget.63 Also, it was in
2007 that the Government Procurement Policy Board64 (GPPB)
issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and
regulations65 of RA 9184,66 the Government Procurement
Reform Act, to include, as a form of negotiated procurement,67
the procedure whereby the Procuring Entity68 (the
implementing agency) may enter into a memorandum of
agreement with an NGO, provided that "an appropriation law or
ordinance earmarks an amount to be specifically contracted out
to NGOs."69
G. Present Administration (2010-Present).
Differing from previous PDAF Articles but similar to the CDF
Articles, the 201170 PDAF Article included an express statement
on lump-sum amounts allocated for individual legislators and the
Vice-President: Representatives were given ₱70 Million each,
broken down into ₱40 Million for "hard projects" and ₱30
Million for "soft projects"; while ₱200 Million was given to each
Senator as well as the Vice-President, with a ₱100 Million
allocation each for "hard" and "soft projects." Likewise, a
provision on realignment of funds was included, but with the
qualification that it may be allowed only once. The same
provision also allowed the Secretaries of Education, Health,
Social Welfare and Development, Interior and Local
Government, Environment and Natural Resources, Energy, and
Public Works and Highways to realign PDAF Funds, with the
further conditions that: (a) realignment is within the same
implementing unit and same project category as the original
project, for infrastructure projects; (b) allotment released has
not yet been obligated for the original scope of work, and (c) the
request for realignment is with the concurrence of the legislator
concerned.71
In the 201272 and 201373 PDAF Articles, it is stated that the
"identification of projects and/or designation of beneficiaries
shall conform to the priority list, standard or design prepared by
each implementing agency (priority list requirement) x x x."
However, as practiced, it would still be the individual legislator
who would choose and identify the project from the said priority
list.74
Provisions on legislator allocations75 as well as fund
realignment76 were included in the 2012 and 2013 PDAF
Articles; but the allocation for the Vice-President, which was
pegged at ₱200 Million in the 2011 GAA, had been deleted. In
addition, the 2013 PDAF Article now allowed LGUs to be
identified as implementing agencies if they have the technical
capability to implement the projects.77 Legislators were also
allowed to identify programs/projects, except for assistance to
indigent patients and scholarships, outside of his legislative
district provided that he secures the written concurrence of the
legislator of the intended outside-district, endorsed by the
Speaker of the House.78 Finally, any realignment of PDAF funds,
modification and revision of project identification, as well as
requests for release of funds, were all required to be favorably
endorsed by the House Committee on Appropriations and the
Senate Committee on Finance, as the case may be.79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated with
lump-sum, discretionary funds of Members of Congress, the
present cases and the recent controversies on the matter have,
however, shown that the term‘s usage has expanded to include
certain funds of the President such as the Malampaya Funds and
the Presidential Social Fund.
On the one hand, the Malampaya Funds was created as a special
fund under Section 880 of Presidential Decree No. (PD) 910,81
issued by then President Ferdinand E. Marcos (Marcos) on
March 22, 1976. In enacting the said law, Marcos recognized the
need to set up a special fund to help intensify, strengthen, and
consolidate government efforts relating to the exploration,
exploitation, and development of indigenous energy resources
vital to economic growth.82 Due to the energy-related activities
of the government in the Malampaya natural gas field in
Palawan, or the "Malampaya Deep Water Gas-to-Power
Project",83 the special fund created under PD 910 has been
currently labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was created
under Section 12, Title IV84 of PD 1869,85 or the Charter of the
Philippine Amusement and Gaming Corporation (PAGCOR). PD
1869 was similarly issued by Marcos on July 11, 1983. More than
two (2) years after, he amended PD 1869 and accordingly issued
PD 1993 on October 31, 1985,86 amending Section 1287 of the
former law. As it stands, the Presidential Social Fund has been
described as a special funding facility managed and administered
by the Presidential Management Staff through which the
President provides direct assistance to priority programs and
projects not funded under the regular budget. It is sourced from
the share of the government in the aggregate gross earnings of
PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have increased
tremendously,89 owing in no small part to previous Presidents
who reportedly used the "Pork Barrel" in order to gain
congressional support.90 It was in 1996 when the first
controversy surrounding the "Pork Barrel" erupted. Former
Marikina City Representative Romeo Candazo (Candazo), then
an anonymous source, "blew the lid on the huge sums of
government money that regularly went into the pockets of
legislators in the form of kickbacks."91 He said that "the
kickbacks were ‘SOP‘ (standard operating procedure) among
legislators and ranged from a low 19 percent to a high 52
percent of the cost of each project, which could be anything
from dredging, rip rapping, sphalting, concreting, and
construction of school buildings."92 "Other sources of kickbacks
that Candazo identified were public funds intended for
medicines and textbooks. A few days later, the tale of the money
trail became the banner story of the Philippine Daily Inquirer
issue of August 13, 1996, accompanied by an illustration of a
roasted pig."93 "The publication of the stories, including those
about congressional initiative allocations of certain lawmakers,
including ₱3.6 Billion for a Congressman, sparked public
outrage."94
Thereafter, or in 2004, several concerned citizens sought the
nullification of the PDAF as enacted in the 2004 GAA for being
unconstitutional. Unfortunately, for lack of "any pertinent
evidentiary support that illegal misuse of PDAF in the form of
kickbacks has become a common exercise of unscrupulous
Members of Congress," the petition was dismissed.95
Recently, or in July of the present year, the National Bureau of
Investigation (NBI) began its probe into allegations that "the
government has been defrauded of some ₱10 Billion over the
past 10 years by a syndicate using funds from the pork barrel of
lawmakers and various government agencies for scores of ghost
projects."96 The investigation was spawned by sworn affidavits
of six (6) whistle-blowers who declared that JLN Corporation –
"JLN" standing for Janet Lim Napoles (Napoles) – had swindled
billions of pesos from the public coffers for "ghost projects"
using no fewer than 20 dummy NGOs for an entire decade.
While the NGOs were supposedly the ultimate recipients of
PDAF funds, the whistle-blowers declared that the money was
diverted into Napoles‘ private accounts.97 Thus, after its
investigation on the Napoles controversy, criminal complaints
were filed before the Office of the Ombudsman, charging five (5)
lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and
Corrupt Practices Act. Also recommended to be charged in the
complaints are some of the lawmakers‘ chiefs -of-staff or
representatives, the heads and other officials of three (3)
implementing agencies, and the several presidents of the NGOs
set up by Napoles.98
On August 16, 2013, the Commission on Audit (CoA) released
the results of a three-year audit investigation99 covering the use
of legislators' PDAF from 2007 to 2009, or during the last three
(3) years of the Arroyo administration. The purpose of the audit
was to determine the propriety of releases of funds under PDAF
and the Various Infrastructures including Local Projects
(VILP)100 by the DBM, the application of these funds and the
implementation of projects by the appropriate implementing
agencies and several government-owned-and-controlled
corporations (GOCCs).101 The total releases covered by the
audit amounted to ₱8.374 Billion in PDAF and ₱32.664 Billion in
VILP, representing 58% and 32%, respectively, of the total PDAF
and VILP releases that were found to have been made
nationwide during the audit period.102 Accordingly, the Co A‘s
findings contained in its Report No. 2012-03 (CoA Report),
entitled "Priority Development Assistance Fund (PDAF) and
Various Infrastructures including Local Projects (VILP)," were
made public, the highlights of which are as follows:103
● Amounts released for projects identified by a considerable
number of legislators significantly exceeded their respective
allocations.
● Amounts were released for projects outside of legislative
districts of sponsoring members of the Lower House.
● Total VILP releases for the period exceeded the total amount
appropriated under the 2007 to 2009 GAAs.
● Infrastructure projects were constructed on private lots
without these having been turned over to the government.
● Significant amounts were released to implementing agencies
without the latter‘s endorsement and without considering their
mandated functions, administrative and technical capabilities to
implement projects.
● Implementation of most livelihood projects was not
undertaken by the implementing agencies themselves but by
NGOs endorsed by the proponent legislators to which the Funds
were transferred.
● The funds were transferred to the NGOs in spite of the
absence of any appropriation law or ordinance.
● Selection of the NGOs were not compliant with law and
regulations.
● Eighty-Two (82) NGOs entrusted with implementation of seven
hundred seventy two (772) projects amount to ₱6.156 Billion
were either found questionable, or submitted
questionable/spurious documents, or failed to liquidate in whole
or in part their utilization of the Funds.
● Procurement by the NGOs, as well as some implementing
agencies, of goods and services reportedly used in the projects
were not compliant with law.
As for the "Presidential Pork Barrel", whistle-blowers alleged
that" at least ₱900 Million from royalties in the operation of
the Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy
NGO."104 According to incumbent CoA Chairperson Maria
Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this
writing, in the process of preparing "one consolidated report"
on the Malampaya Funds.105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA Report
and the Napoles controversy, several petitions were lodged
before the Court similarly seeking that the "Pork Barrel System"
be declared unconstitutional. To recount, the relevant
procedural antecedents in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara
(Alcantara), President of the Social Justice Society, filed a
Petition for Prohibition of even date under Rule 65 of the Rules
of Court (Alcantara Petition), seeking that the "Pork Barrel
System" be declared unconstitutional, and a writ of prohibition
be issued permanently restraining respondents Franklin M.
Drilon and Feliciano S. Belmonte, Jr., in their respective
capacities as the incumbent Senate President and Speaker of
the House of Representatives, from further taking any steps to
enact legislation appropriating funds for the "Pork Barrel
System," in whatever form and by whatever name it may be
called, and from approving further releases pursuant
thereto.106 The Alcantara Petition was docketed as G.R. No.
208493.
On September 3, 2013, petitioners Greco Antonious Beda B.
Belgica, Jose L. Gonzalez, Reuben M. Abante, Quintin Paredes
San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed
an Urgent Petition For Certiorari and Prohibition With Prayer For
The Immediate Issuance of Temporary Restraining Order (TRO)
and/or Writ of Preliminary Injunction dated August 27, 2013
under Rule 65 of the Rules of Court (Belgica Petition), seeking
that the annual "Pork Barrel System," presently embodied in
the provisions of the GAA of 2013 which provided for the 2013
PDAF, and the Executive‘s lump-sum, discretionary funds, such
as the Malampaya Funds and the Presidential Social Fund,107
be declared unconstitutional and null and void for being acts
constituting grave abuse of discretion. Also, they pray that the
Court issue a TRO against respondents Paquito N. Ochoa, Jr.,
Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in
their respective capacities as the incumbent Executive Secretary,
Secretary of the Department of Budget and Management (DBM),
and National Treasurer, or their agents, for them to immediately
cease any expenditure under the aforesaid funds. Further, they
pray that the Court order the foregoing respondents to release
to the CoA and to the public: (a) "the complete schedule/list of
legislators who have availed of their PDAF and VILP from the
years 2003 to 2013, specifying the use of the funds, the project
or activity and the recipient entities or individuals, and all
pertinent data thereto"; and (b) "the use of the Executive‘s
lump-sum, discretionary funds, including the proceeds from the
x x x Malampaya Funds and remittances from the PAGCOR x x x
from 2003 to 2013, specifying the x x x project or activity and the
recipient entities or individuals, and all pertinent data
thereto."108 Also, they pray for the "inclusion in budgetary
deliberations with the Congress of all presently off-budget,
lump-sum, discretionary funds including, but not limited to,
proceeds from the Malampaya Funds and remittances from the
PAGCOR."109 The Belgica Petition was docketed as G.R. No.
208566.110
Lastly, on September 5, 2013, petitioner Pedrito M.
Nepomuceno (Nepomuceno), filed a Petition dated August 23,
2012 (Nepomuceno Petition), seeking that the PDAF be declared
unconstitutional, and a cease and desist order be issued
restraining President Benigno Simeon S. Aquino III (President
Aquino) and Secretary Abad from releasing such funds to
Members of Congress and, instead, allow their release to fund
priority projects identified and approved by the Local
Development Councils in consultation with the executive
departments, such as the DPWH, the Department of Tourism,
the Department of Health, the Department of Transportation,
and Communication and the National Economic Development
Authority.111 The Nepomuceno Petition was docketed as UDK-
14951.112
On September 10, 2013, the Court issued a Resolution of even
date (a) consolidating all cases; (b) requiring public respondents
to comment on the consolidated petitions; (c) issuing a TRO
(September 10, 2013 TRO) enjoining the DBM, National
Treasurer, the Executive Secretary, or any of the persons acting
under their authority from releasing (1) the remaining PDAF
allocated to Members of Congress under the GAA of 2013, and
(2) Malampaya Funds under the phrase "for such other purposes
as may be hereafter directed by the President" pursuant to
Section 8 of PD 910 but not for the purpose of "financing energy
resource development and exploitation programs and projects
of the government‖ under the same provision; and (d) setting
the consolidated cases for Oral Arguments on October 8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG)
filed a Consolidated Comment (Comment) of even date before
the Court, seeking the lifting, or in the alternative, the partial
lifting with respect to educational and medical assistance
purposes, of the Court‘s September 10, 2013 TRO, and that the
consolidated petitions be dismissed for lack of merit.113
On September 24, 2013, the Court issued a Resolution of even
date directing petitioners to reply to the Comment.
Petitioners, with the exception of Nepomuceno, filed their
respective replies to the Comment: (a) on September 30, 2013,
Villegas filed a separate Reply dated September 27, 2013
(Villegas Reply); (b) on October 1, 2013, Belgica, et al. filed a
Reply dated September 30, 2013 (Belgica Reply); and (c) on
October 2, 2013, Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for
the guidelines to be observed by the parties for the Oral
Arguments scheduled on October 8, 2013. In view of the
technicality of the issues material to the present cases,
incumbent Solicitor General Francis H. Jardeleza (Solicitor
General) was directed to bring with him during the Oral
Arguments representative/s from the DBM and Congress who
would be able to competently and completely answer questions
related to, among others, the budgeting process and its
implementation. Further, the CoA Chairperson was appointed as
amicus curiae and thereby requested to appear before the Court
during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were
conducted. Thereafter, the Court directed the parties to submit
their respective memoranda within a period of seven (7) days, or
until October 17, 2013, which the parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral
Arguments, the following are the main issues for the Court‘s
resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions
involve an actual and justiciable controversy; (b) the issues
raised in the consolidated petitions are matters of policy not
subject to judicial review; (c) petitioners have legal standing to
sue; and (d) the Court‘s Decision dated August 19, 1994 in G.R.
Nos. 113105, 113174, 113766, and 113888, entitled "Philippine
Constitution Association v. Enriquez"114 (Philconsa) and
Decision dated April 24, 2012 in G.R. No. 164987, entitled
"Lawyers Against Monopoly and Poverty v. Secretary of Budget
and Management"115 (LAMP) bar the re-litigatio n of the issue
of constitutionality of the "Pork Barrel System" under the
principles of res judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
Whether or not the 2013 PDAF Article and all other
Congressional Pork Barrel Laws similar thereto are
unconstitutional considering that they violate the principles
of/constitutional provisions on (a) separation of powers; (b) non-
delegability of legislative power; (c) checks and balances; (d)
accountability; (e) political dynasties; and (f) local autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
Whether or not the phrases (a) "and for such other purposes as
may be hereafter directed by the President" under Section 8 of
PD 910,116 relating to the Malampaya Funds, and (b) "to finance
the priority infrastructure development projects and to finance
the restoration of damaged or destroyed facilities due to
calamities, as may be directed and authorized by the Office of
the President of the Philippines" under Section 12 of PD 1869, as
amended by PD 1993, relating to the Presidential Social Fund,
are unconstitutional insofar as they constitute undue
delegations of legislative power.
These main issues shall be resolved in the order that they have
been stated. In addition, the Court shall also tackle certain
ancillary issues as prompted by the present cases.
The Court’s Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question
involving the constitutionality or validity of a law or
governmental act may be heard and decided by the Court unless
there is compliance with the legal requisites for judicial
inquiry,117 namely: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the
person challenging the act must have the standing to question
the validity of the subject act or issuance; (c) the question of
constitutionality must be raised at the earliest opportunity ; and
(d) the issue of constitutionality must be the very lis mota of the
case.118 Of these requisites, case law states that the first two
are the most important119 and, therefore, shall be discussed
forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is
an actual case or controversy.120 This is embodied in Section 1,
Article VIII of the 1987 Constitution which pertinently states that
"judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable x x x." Jurisprudence provides that
an actual case or controversy 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.121 In other words, "there must
be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence."122
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."123 "Withal, courts will decline
to pass upon constitutional issues through advisory opinions,
bereft as they are of authority to resolve hypothetical or moot
questions."124
Based on these principles, the Court finds that there exists an
actual and justiciable controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied
by the antagonistic positions of the parties on the
constitutionality of the "Pork Barrel System." Also, the questions
in these consolidated cases are ripe for adjudication since the
challenged funds and the provisions allowing for their utilization
– such as the 2013 GAA for the PDAF, PD 910 for the Malampaya
Funds and PD 1869, as amended by PD 1993, for the Presidential
Social Fund – are currently existing and operational; hence,
there exists an immediate or threatened injury to petitioners as
a result of the unconstitutional use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues
related thereto had been rendered moot and academic by the
reforms undertaken by respondents. A case becomes moot
when there is no more actual controversy between the parties
or no useful purpose can be served in passing upon the
merits.125 Differing from this description, the Court observes
that respondents‘ proposed line-item budgeting scheme would
not terminate the controversy nor diminish the useful purpose
for its resolution since said reform is geared towards the 2014
budget, and not the 2013 PDAF Article which, being a distinct
subject matter, remains legally effective and existing. Neither
will the President‘s declaration that he had already "abolished
the PDAF" render the issues on PDAF moot precisely because the
Executive branch of government has no constitutional authority
to nullify or annul its legal existence. By constitutional design,
the annulment or nullification of a law may be done either by
Congress, through the passage of a repealing law, or by the
Court, through a declaration of unconstitutionality. Instructive
on this point is the following exchange between Associate
Justice Antonio T. Carpio (Justice Carpio) and the Solicitor
General during the Oral Arguments:126
Justice Carpio: The President has taken an oath to faithfully
execute the law,127 correct? Solicitor General Jardeleza: Yes,
Your Honor.
Justice Carpio: And so the President cannot refuse to implement
the General Appropriations Act, correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor.
In the case, for example of the PDAF, the President has a duty to
execute the laws but in the face of the outrage over PDAF, the
President was saying, "I am not sure that I will continue the
release of the soft projects," and that started, Your Honor. Now,
whether or not that … (interrupted)
Justice Carpio: Yeah. I will grant the President if there are
anomalies in the project, he has the power to stop the releases
in the meantime, to investigate, and that is Section 38 of
Chapter 5 of Book 6 of the Revised Administrative Code128 x x x.
So at most the President can suspend, now if the President
believes that the PDAF is unconstitutional, can he just refuse to
implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to
say in the specific case of the PDAF because of the CoA Report,
because of the reported irregularities and this Court can take
judicial notice, even outside, outside of the COA Report, you
have the report of the whistle-blowers, the President was just
exercising precisely the duty ….
xxxx
Justice Carpio: Yes, and that is correct. You‘ve seen the CoA
Report, there are anomalies, you stop and investigate, and
prosecute, he has done that. But, does that mean that PDAF has
been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx
Justice Carpio: So that PDAF can be legally abolished only in two
(2) cases. Congress passes a law to repeal it, or this Court
declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish
PDAF. (Emphases supplied)
Even on the assumption of mootness, jurisprudence,
nevertheless, dictates that "the moot and academic‘ principle is
not a magical formula that can automatically dissuade the Court
in resolving a case." The Court will decide cases, otherwise moot,
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.129
The applicability of the first exception is clear from the
fundamental posture of petitioners – they essentially allege
grave violations of the Constitution with respect to, inter alia,
the principles of separation of powers, non-delegability of
legislative power, checks and balances, accountability and local
autonomy.
The applicability of the second exception is also apparent from
the nature of the interests involved
– the constitutionality of the very system within which
significant amounts of public funds have been and continue to
be utilized and expended undoubtedly presents a situation of
exceptional character as well as a matter of paramount public
interest. The present petitions, in fact, have been lodged at a
time when the system‘s flaws have never before been
magnified. To the Court‘s mind, the coalescence of the CoA
Report, the accounts of numerous whistle-blowers, and the
government‘s own recognition that reforms are needed "to
address the reported abuses of the PDAF"130 demonstrates a
prima facie pattern of abuse which only underscores the
importance of the matter. It is also by this finding that the Court
finds petitioners‘ claims as not merely theorized, speculative or
hypothetical. Of note is the weight accorded by the Court to the
findings made by the CoA which is the constitutionally-
mandated audit arm of the government. In Delos Santos v.
CoA,131 a recent case wherein the Court upheld the CoA‘s
disallowance of irregularly disbursed PDAF funds, it was
emphasized that:
The COA is endowed with enough latitude to determine,
prevent, and disallow irregular, unnecessary, excessive,
extravagant or unconscionable expenditures of government
funds. It is tasked to be vigilant and conscientious in
safeguarding the proper use of the government's, and ultimately
the people's, property. The exercise of its general audit power is
among the constitutional mechanisms that gives life to the check
and balance system inherent in our form of government.
It is the general policy of the Court to sustain the decisions of
administrative authorities, especially one which is
constitutionally-created, such as the CoA, not only on the basis
of the doctrine of separation of powers but also for their
presumed expertise in the laws they are entrusted to enforce.
Findings of administrative agencies are accorded not only
respect but also finality when the decision and order are not
tainted with unfairness or arbitrariness that would amount to
grave abuse of discretion. It is only when the CoA has acted
without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, that this
Court entertains a petition questioning its rulings. x x x.
(Emphases supplied)
Thus, if only for the purpose of validating the existence of an
actual and justiciable controversy in these cases, the Court
deems the findings under the CoA Report to be sufficient.
The Court also finds the third exception to be applicable largely
due to the practical need for a definitive ruling on the system‘s
constitutionality. As disclosed during the Oral Arguments, the
CoA Chairperson estimates that thousands of notices of
disallowances will be issued by her office in connection with the
findings made in the CoA Report. In this relation, Associate
Justice Marvic Mario Victor F. Leonen (Justice Leonen) pointed
out that all of these would eventually find their way to the
courts.132 Accordingly, there is a compelling need to formulate
controlling principles relative to the issues raised herein in order
to guide the bench, the bar, and the public, not just for the
expeditious resolution of the anticipated disallowance cases, but
more importantly, so that the government may be guided on
how public funds should be utilized in accordance with
constitutional principles.
Finally, the application of the fourth exception is called for by
the recognition that the preparation and passage of the national
budget is, by constitutional imprimatur, an affair of annual
occurrence.133 The relevance of the issues before the Court
does not cease with the passage of a "PDAF -free budget for
2014."134 The evolution of the "Pork Barrel System," by its
multifarious iterations throughout the course of history, lends a
semblance of truth to petitioners‘ claim that "the same dog will
just resurface wearing a different collar."135 In Sanlakas v.
Executive Secretary,136 the government had already
backtracked on a previous course of action yet the Court used
the "capable of repetition but evading review" exception in
order "to prevent similar questions from re- emerging."137 The
situation similarly holds true to these cases. Indeed, the myriad
of issues underlying the manner in which certain public funds
are spent, if not resolved at this most opportune time, are
capable of repetition and hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases
and controversies‖ carries the assurance that "the courts will not
intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a
restatement of the political question doctrine which, under the
classic formulation of Baker v. Carr,139 applies when there is
found, among others, "a textually demonstrable constitutional
commitment of the issue to a coordinate political department,"
"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 non- judicial
discretion." Cast against this light, respondents submit that the
"the political branches are in the best position not only to
perform budget-related reforms but also to do them in response
to the specific demands of their constituents" and, as such,
"urge the Court not to impose a solution at this stage."140
The Court must deny respondents‘ submission.
Suffice it to state that the issues raised before the Court do not
present political but legal questions which are within its province
to resolve. A political question refers 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 Legislature or executive
branch of the Government. It is concerned with issues
dependent upon the wisdom, not legality, of a particular
measure."141 The intrinsic constitutionality of the "Pork Barrel
System" is not an issue dependent upon the wisdom of the
political branches of government but rather a legal one which
the Constitution itself has commanded the Court to act upon.
Scrutinizing the contours of the system along constitutional lines
is a task that the political branches of government are incapable
of rendering precisely because it is an exercise of judicial power.
More importantly, the present Constitution has not only vested
the Judiciary the right to exercise judicial power but essentially
makes it a duty to proceed therewith. Section 1, Article VIII of
the 1987 Constitution cannot be any clearer: "The judicial power
shall be vested in one Supreme Court and in such lower courts as
may be established by law. It 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." In Estrada v. Desierto,142
the expanded concept of judicial power under the 1987
Constitution and its effect on the political question doctrine was
explained as follows:143
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. Heretofore, the judiciary has focused on the "thou
shalt not's" of the Constitution directed against the exercise of
its jurisdiction. 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. x x x (Emphases supplied)
It must also be borne in mind that ― when the judiciary
mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments; does not in reality
nullify or invalidate an act of the legislature or the executive, but
only asserts the solemn and sacred obligation assigned to it by
the Constitution."144 To a great extent, the Court is laudably
cognizant of the reforms undertaken by its co-equal branches of
government. But it is by constitutional force that the Court must
faithfully perform its duty. Ultimately, it is the Court‘s avowed
intention that a resolution of these cases would not arrest or in
any manner impede the endeavors of the two other branches
but, in fact, help ensure that the pillars of change are erected on
firm constitutional grounds. After all, it is in the best interest of
the people that each great branch of government, within its own
sphere, contributes its share towards achieving a holistic and
genuine solution to the problems of society. For all these
reasons, the Court cannot heed respondents‘ plea for judicial
restraint.
C. Locus Standi.
"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. Unless a person
is injuriously affected in any of his constitutional rights by the
operation of statute or ordinance, he has no standing."145
Petitioners have come before the Court in their respective
capacities as citizen-taxpayers and accordingly, assert that they
"dutifully contribute to the coffers of the National Treasury."146
Clearly, as taxpayers, they possess the requisite standing to
question the validity of the existing "Pork Barrel System" under
which the taxes they pay have been and continue to be utilized.
It is undeniable that petitioners, as taxpayers, are bound to
suffer from the unconstitutional usage of public funds, if the
Court so rules. Invariably, taxpayers have been allowed to sue
where there is a claim that public funds are illegally disbursed or
that public money is being deflected to any improper purpose,
or that public funds are wasted through the enforcement of an
invalid or unconstitutional law,147 as in these cases.
Moreover, as citizens, petitioners have equally fulfilled the
standing requirement given that the issues they have raised may
be classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public
interest."148 The CoA Chairperson‘s statement during the Oral
Arguments that the present controversy involves "not merely a
systems failure" but a "complete breakdown of controls"149
amplifies, in addition to the matters above-discussed, the
seriousness of the issues involved herein. Indeed, of greater
import than the damage caused by the illegal expenditure of
public funds is the mortal wound inflicted upon the fundamental
law by the enforcement of an invalid statute.150 All told,
petitioners have sufficient locus standi to file the instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare
decisis non quieta et movere (or simply, stare decisis which
means "follow past precedents and do not disturb what has
been settled") are general procedural law principles which both
deal with the effects of previous but factually similar dispositions
to subsequent cases. For the cases at bar, the Court examines
the applicability of these principles in relation to its prior rulings
in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle
states that a judgment on the merits in a previous case rendered
by a court of competent jurisdiction would bind a subsequent
case if, between the first and second actions, there exists an
identity of parties, of subject matter, and of causes of action.151
This required identity is not, however, attendant hereto since
Philconsa and LAMP, respectively involved constitutional
challenges against the 1994 CDF Article and 2004 PDAF Article,
whereas the cases at bar call for a broader constitutional
scrutiny of the entire "Pork Barrel System." Also, the ruling in
LAMP is essentially a dismissal based on a procedural
technicality – and, thus, hardly a judgment on the merits – in
that petitioners therein failed to present any "convincing proof x
x x showing that, indeed, there were direct releases of funds to
the Members of Congress, who actually spend them according to
their sole discretion" or "pertinent evidentiary support to
demonstrate the illegal misuse of PDAF in the form of kickbacks
and has become a common exercise of unscrupulous Members
of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004
PDAF Article, and saw "no need to review or reverse the
standing pronouncements in the said case." Hence, for the
foregoing reasons, the res judicata principle, insofar as the
Philconsa and LAMP cases are concerned, cannot apply.
On the other hand, the focal point of stare decisis is the doctrine
created. The principle, entrenched under Article 8152 of the Civil
Code, evokes the general rule that, for the sake of certainty, a
conclusion reached in one case should be doctrinally applied to
those that follow if the facts are substantially the same, even
though the parties may be different. It proceeds from the first
principle of justice that, absent any powerful countervailing
considerations, like cases ought to be decided alike. Thus, where
the same questions relating to the same event have been put
forward by the parties similarly situated as in a previous case
litigated and decided by a competent court, the rule of stare
decisis is a bar to any attempt to re-litigate the same issue.153
Philconsa was the first case where a constitutional challenge
against a Pork Barrel provision, i.e., the 1994 CDF Article, was
resolved by the Court. To properly understand its context,
petitioners‘ posturing was that "the power given to the
Members of Congress to propose and identify projects and
activities to be funded by the CDF is an encroachment by the
legislature on executive power, since said power in an
appropriation act is in implementation of the law" and that "the
proposal and identification of the projects do not involve the
making of laws or the repeal and amendment thereof, the only
function given to the Congress by the Constitution."154 In
deference to the foregoing submissions, the Court reached the
following main conclusions: one, under the Constitution, the
power of appropriation, or the "power of the purse," belongs to
Congress; two, the power of appropriation carries with it the
power to specify the project or activity to be funded under the
appropriation law and it can be detailed and as broad as
Congress wants it to be; and, three, the proposals and
identifications made by Members of Congress are merely
recommendatory. At once, it is apparent that the Philconsa
resolution was a limited response to a separation of powers
problem, specifically on the propriety of conferring post-
enactment identification authority to Members of Congress. On
the contrary, the present cases call for a more holistic
examination of (a) the inter-relation between the CDF and PDAF
Articles with each other, formative as they are of the entire
"Pork Barrel System" as well as (b) the intra-relation of post-
enactment measures contained within a particular CDF or PDAF
Article, including not only those related to the area of project
identification but also to the areas of fund release and
realignment. The complexity of the issues and the broader legal
analyses herein warranted may be, therefore, considered as a
powerful countervailing reason against a wholesale application
of the stare decisis principle.
In addition, the Court observes that the Philconsa ruling was
actually riddled with inherent constitutional inconsistencies
which similarly countervail against a full resort to stare decisis.
As may be deduced from the main conclusions of the case,
Philconsa‘s fundamental premise in allowing Members of
Congress to propose and identify of projects would be that the
said identification authority is but an aspect of the power of
appropriation which has been constitutionally lodged in
Congress. From this premise, the contradictions may be easily
seen. If the authority to identify projects is an aspect of
appropriation and the power of appropriation is a form of
legislative power thereby lodged in Congress, then it follows
that: (a) it is Congress which should exercise such authority, and
not its individual Members; (b) such authority must be exercised
within the prescribed procedure of law passage and, hence,
should not be exercised after the GAA has already been passed;
and (c) such authority, as embodied in the GAA, has the force of
law and, hence, cannot be merely recommendatory. Justice
Vitug‘s Concurring Opinion in the same case sums up the
Philconsa quandary in this wise: "Neither would it be
objectionable for Congress, by law, to appropriate funds for such
specific projects as it may be minded; to give that authority,
however, to the individual members of Congress in whatever
guise, I am afraid, would be constitutionally impermissible." As
the Court now largely benefits from hindsight and current
findings on the matter, among others, the CoA Report, the Court
must partially abandon its previous ruling in Philconsa insofar as
it validated the post-enactment identification authority of
Members of Congress on the guise that the same was merely
recommendatory. This postulate raises serious constitutional
inconsistencies which cannot be simply excused on the ground
that such mechanism is "imaginative as it is innovative."
Moreover, it must be pointed out that the recent case of
Abakada Guro Party List v. Purisima155 (Abakada) has effectively
overturned Philconsa‘s allowance of post-enactment legislator
participation in view of the separation of powers principle. These
constitutional inconsistencies and the Abakada rule will be
discussed in greater detail in the ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case was
dismissed on a procedural technicality and, hence, has not set
any controlling doctrine susceptible of current application to the
substantive issues in these cases. In fine, stare decisis would not
apply.

II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of
these cases, it must first define the terms "Pork Barrel System,"
"Congressional Pork Barrel," and "Presidential Pork Barrel" as
they are essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the
"collusion between the Legislative and Executive branches of
government to accumulate lump-sum public funds in their
offices with unchecked discretionary powers to determine its
distribution as political largesse."156 They assert that the
following elements make up the Pork Barrel System: (a) lump-
sum funds are allocated through the appropriations process to
an individual officer; (b) the officer is given sole and broad
discretion in determining how the funds will be used or
expended; (c) the guidelines on how to spend or use the funds in
the appropriation are either vague, overbroad or inexistent; and
(d) projects funded are intended to benefit a definite
constituency in a particular part of the country and to help the
political careers of the disbursing official by yielding rich
patronage benefits.157 They further state that the Pork Barrel
System is comprised of two (2) kinds of discretionary public
funds: first, the Congressional (or Legislative) Pork Barrel,
currently known as the PDAF;158 and, second, the Presidential
(or Executive) Pork Barrel, specifically, the Malampaya Funds
under PD 910 and the Presidential Social Fund under PD 1869, as
amended by PD 1993.159
Considering petitioners‘ submission and in reference to its local
concept and legal history, the Court defines the Pork Barrel
System as the collective body of rules and practices that govern
the manner by which lump-sum, discretionary funds, primarily
intended for local projects, are utilized through the respective
participations of the Legislative and Executive branches of
government, including its members. The Pork Barrel System
involves two (2) kinds of lump-sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein
defined as a kind of lump-sum, discretionary fund wherein
legislators, either individually or collectively organized into
committees, are able to effectively control certain aspects of the
fund’s utilization through various post-enactment measures
and/or practices. In particular, petitioners consider the PDAF, as
it appears under the 2013 GAA, as Congressional Pork Barrel
since it is, inter alia, a post-enactment measure that allows
individual legislators to wield a collective power;160 and
Second, there is the Presidential Pork Barrel which is herein
defined as a kind of lump-sum, discretionary fund which allows
the President to determine the manner of its utilization. For
reasons earlier stated,161 the Court shall delimit the use of such
term to refer only to the Malampaya Funds and the Presidential
Social Fund.
With these definitions in mind, the Court shall now proceed to
discuss the substantive issues of these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
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,162 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."163 To the legislative branch of government,
through Congress,164 belongs the power to make laws; to the
executive branch of government, through the President,165
belongs the power to enforce laws; and to the judicial branch of
government, through the Court,166 belongs the power to
interpret laws. Because the three great powers have been, by
constitutional design, ordained in this respect, "each
department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own
sphere."167 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."168 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.169 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.170
Broadly speaking, there is a violation of the separation of powers
principle when one branch of government unduly encroaches on
the domain of another. US Supreme Court decisions instruct that
the principle of separation of powers may be violated in two (2)
ways: firstly, "one branch may interfere impermissibly with the
other’s performance of its constitutionally assigned
function";171 and "alternatively, the doctrine may be violated
when one branch assumes a function that more properly is
entrusted to another."172 In other words, there is a violation of
the principle when there is impermissible (a) interference with
and/or (b) assumption of another department‘s functions.
The enforcement of the national budget, as primarily contained
in the GAA, is indisputably a function both constitutionally
assigned and properly entrusted to the Executive branch of
government. In Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.),
the Court explained that the phase of budget execution "covers
the various operational aspects of budgeting" and accordingly
includes "the evaluation of work and financial plans for
individual activities," the "regulation and release of funds" as
well as all "other related activities" that comprise the budget
execution cycle.174 This is rooted in the principle that the
allocation of power in the three principal branches of
government is a grant of all powers inherent in them.175 Thus,
unless the Constitution provides otherwise, the Executive
department should exclusively exercise all roles and prerogatives
which go into the implementation of the national budget as
provided under the GAA as well as any other appropriation law.
In view of the foregoing, the Legislative branch of government,
much more any of its members, should not cross over the field
of implementing the national budget since, as earlier stated, the
same is properly the domain of the Executive. Again, in
Guingona, Jr., the Court stated that "Congress enters the picture
when it deliberates or acts on the budget proposals of the
President. Thereafter, Congress, "in the exercise of its own
judgment and wisdom, formulates an appropriation act precisely
following the process established by the Constitution, which
specifies that no money may be paid from the Treasury except in
accordance with an appropriation made by law." Upon approval
and passage of the GAA, Congress‘ law -making role necessarily
comes to an end and from there the Executive‘s role of
implementing the national budget begins. So as not to blur the
constitutional boundaries between them, Congress must "not
concern it self with details for implementation by the
Executive."176
The foregoing cardinal postulates were definitively enunciated in
Abakada where the Court held that "from the moment the law
becomes effective, any provision of law that empowers Congress
or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of
powers and is thus unconstitutional."177 It must be clarified,
however, that since the restriction only pertains to "any role in
the implementation or enforcement of the law," Congress may
still exercise its oversight function which is a mechanism of
checks and balances that the Constitution itself allows. But it
must be made clear that Congress‘ role must be confined to
mere oversight. Any post-enactment-measure allowing legislator
participation beyond oversight is bereft of any constitutional
basis and hence, tantamount to impermissible interference
and/or assumption of executive functions. As the Court ruled in
Abakada:178
Any post-enactment congressional measure x x x should be
limited to scrutiny and investigation.1âwphi1 In particular,
congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress‘ power of appropriation
and the budget hearings conducted in connection with it, its
power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation; and
(2) investigation and monitoring of the implementation of laws
pursuant to the power of Congress to conduct inquiries in aid of
legislation.
Any action or step beyond that will undermine the separation of
powers guaranteed by the Constitution. (Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork
Barrel – among others, the 2013 PDAF Article – "wrecks the
assignment of responsibilities between the political branches" as
it is designed to allow individual legislators to interfere "way
past the time it should have ceased" or, particularly, "after the
GAA is passed."179 They state that the findings and
recommendations in the CoA Report provide "an illustration of
how absolute and definitive the power of legislators wield over
project implementation in complete violation of the
constitutional principle of separation of powers."180 Further,
they point out that the Court in the Philconsa case only allowed
the CDF to exist on the condition that individual legislators
limited their role to recommending projects and not if they
actually dictate their implementation.181
For their part, respondents counter that the separations of
powers principle has not been violated since the President
maintains "ultimate authority to control the execution of the
GAA‖ and that he "retains the final discretion to reject" the
legislators‘ proposals.182 They maintain that the Court, in
Philconsa, "upheld the constitutionality of the power of
members of Congress to propose and identify projects so long as
such proposal and identification are recommendatory."183 As
such, they claim that "everything in the Special Provisions [of the
2013 PDAF Article follows the Philconsa framework, and hence,
remains constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature of
all forms of Congressional Pork Barrel would be the authority of
legislators to participate in the post-enactment phases of project
implementation.
At its core, legislators – may it be through project lists,185 prior
consultations186 or program menus187 – have been
consistently accorded post-enactment authority to identify the
projects they desire to be funded through various Congressional
Pork Barrel allocations. Under the 2013 PDAF Article, the
statutory authority of legislators to identify projects post-GAA
may be construed from the import of Special Provisions 1 to 3 as
well as the second paragraph of Special Provision 4. To elucidate,
Special Provision 1 embodies the program menu feature which,
as evinced from past PDAF Articles, allows individual legislators
to identify PDAF projects for as long as the identified project falls
under a general program listed in the said menu. Relatedly,
Special Provision 2 provides that the implementing agencies
shall, within 90 days from the GAA is passed, submit to Congress
a more detailed priority list, standard or design prepared and
submitted by implementing agencies from which the legislator
may make his choice. The same provision further authorizes
legislators to identify PDAF projects outside his district for as
long as the representative of the district concerned concurs in
writing. Meanwhile, Special Provision 3 clarifies that PDAF
projects refer to "projects to be identified by legislators"188 and
thereunder provides the allocation limit for the total amount of
projects identified by each legislator. Finally, paragraph 2 of
Special Provision 4 requires that any modification and revision of
the project identification "shall be submitted to the House
Committee on Appropriations and the Senate Committee on
Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be." From the foregoing
special provisions, it cannot be seriously doubted that legislators
have been accorded post-enactment authority to identify PDAF
projects.
Aside from the area of project identification, legislators have
also been accorded post-enactment authority in the areas of
fund release and realignment. Under the 2013 PDAF Article, the
statutory authority of legislators to participate in the area of
fund release through congressional committees is contained in
Special Provision 5 which explicitly states that "all request for
release of funds shall be supported by the documents prescribed
under Special Provision No. 1 and favorably endorsed by House
Committee on Appropriations and the Senate Committee on
Finance, as the case may be"; while their statutory authority to
participate in the area of fund realignment is contained in: first ,
paragraph 2, Special Provision 4189 which explicitly state s,
among others, that "any realignment of funds shall be submitted
to the House Committee on Appropriations and the Senate
Committee on Finance for favorable endorsement to the DBM or
the implementing agency, as the case may be‖ ; and, second ,
paragraph 1, also of Special Provision 4 which authorizes the
"Secretaries of Agriculture, Education, Energy, Interior and Local
Government, Labor and Employment, Public Works and
Highways, Social Welfare and Development and Trade and
Industry190 x x x to approve realignment from one
project/scope to another within the allotment received from this
Fund, subject to among others (iii) the request is with the
concurrence of the legislator concerned."
Clearly, these post-enactment measures which govern the areas
of project identification, fund release and fund realignment are
not related to functions of congressional oversight and, hence,
allow legislators to intervene and/or assume duties that properly
belong to the sphere of budget execution. Indeed, by virtue of
the foregoing, legislators have been, in one form or another,
authorized to participate in – as Guingona, Jr. puts it – "the
various operational aspects of budgeting," including "the
evaluation of work and financial plans for individual activities"
and the "regulation and release of funds" in violation of the
separation of powers principle. The fundamental rule, as
categorically articulated in Abakada, cannot be overstated –
from the moment the law becomes effective, any provision of
law that empowers Congress or any of its members to play any
role in the implementation or enforcement of the law violates
the principle of separation of powers and is thus
unconstitutional.191 That the said authority is treated as merely
recommendatory in nature does not alter its unconstitutional
tenor since the prohibition, to repeat, covers any role in the
implementation or enforcement of the law. Towards this end,
the Court must therefore abandon its ruling in Philconsa which
sanctioned the conduct of legislator identification on the guise
that the same is merely recommendatory and, as such,
respondents‘ reliance on the same falters altogether.
Besides, it must be pointed out that respondents have
nonetheless failed to substantiate their position that the
identification authority of legislators is only of recommendatory
import. Quite the contrary, respondents – through the
statements of the Solicitor General during the Oral Arguments –
have admitted that the identification of the legislator constitutes
a mandatory requirement before his PDAF can be tapped as a
funding source, thereby highlighting the indispensability of the
said act to the entire budget execution process:192
Justice Bernabe: Now, without the individual legislator’s
identification of the project, can the PDAF of the legislator be
utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot… (interrupted)
Justice Bernabe: So meaning you should have the identification
of the project by the individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
Justice Bernabe: In short, the act of identification is mandatory?
Solictor General Jardeleza: Yes, Your Honor. In the sense that if it
is not done and then there is no identification.
xxxx
Justice Bernabe: Now, would you know of specific instances
when a project was implemented without the identification by
the individual legislator?
Solicitor General Jardeleza: I do not know, Your Honor; I do not
think so but I have no specific examples. I would doubt very
much, Your Honor, because to implement, there is a need for a
SARO and the NCA. And the SARO and the NCA are triggered by
an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your
Honor, is we were replying to a question, "How can a legislator
make sure that he is able to get PDAF Funds?" It is mandatory in
the sense that he must identify, in that sense, Your Honor.
Otherwise, if he does not identify, he cannot avail of the PDAF
Funds and his district would not be able to have PDAF Funds,
only in that sense, Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares
the 2013 PDAF Article as well as all other provisions of law which
similarly allow legislators to wield any form of post-enactment
authority in the implementation or enforcement of the budget,
unrelated to congressional oversight, as violative of the
separation of powers principle and thus unconstitutional.
Corollary thereto, informal practices, through which legislators
have effectively intruded into the proper phases of budget
execution, must be deemed as acts of grave abuse of discretion
amounting to lack or excess of jurisdiction and, hence, accorded
the same unconstitutional treatment. That such informal
practices do exist and have, in fact, been constantly observed
throughout the years has not been substantially disputed here.
As pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief
Justice Sereno) during the Oral Arguments of these cases:193
Chief Justice Sereno:
Now, from the responses of the representative of both, the DBM
and two (2) Houses of Congress, if we enforces the initial
thought that I have, after I had seen the extent of this research
made by my staff, that neither the Executive nor Congress
frontally faced the question of constitutional compatibility of
how they were engineering the budget process. In fact, the
words you have been using, as the three lawyers of the DBM,
and both Houses of Congress has also been using is surprise;
surprised that all of these things are now surfacing. In fact, I
thought that what the 2013 PDAF provisions did was to codify in
one section all the past practice that had been done since 1991.
In a certain sense, we should be thankful that they are all now in
the PDAF Special Provisions. x x x (Emphasis and underscoring
supplied)
Ultimately, legislators cannot exercise powers which they do not
have, whether through formal measures written into the law or
informal practices institutionalized in government agencies, else
the Executive department be deprived of what the Constitution
has vested as its own.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers principle,194
legislative power shall be exclusively exercised by the body to
which the Constitution has conferred the same. In particular,
Section 1, Article VI of the 1987 Constitution states that such
power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except
to the extent reserved to the people by the provision on
initiative and referendum.195 Based on this provision, it is clear
that only Congress, acting as a bicameral body, and the people,
through the process of initiative and referendum, may
constitutionally wield legislative power and no other. This
premise embodies the principle of non-delegability of legislative
power, and the only recognized exceptions thereto would be: (a)
delegated legislative power to local governments which, by
immemorial practice, are allowed to legislate on purely local
matters;196 and (b) constitutionally-grafted exceptions such as
the authority of the President to, by law, exercise powers
necessary and proper to carry out a declared national policy in
times of war or other national emergency,197 or fix within
specified limits, and subject to such limitations and restrictions
as Congress 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.198
Notably, the principle of non-delegability should not be confused
as a restriction to delegate rule-making authority to
implementing agencies for the limited purpose of either filling
up the details of the law for its enforcement (supplementary
rule-making) or ascertaining facts to bring the law into actual
operation (contingent rule-making).199 The conceptual
treatment and limitations of delegated rule-making were
explained in the case of People v. Maceren200 as follows:
The grant of the rule-making power to administrative agencies is
a relaxation of the principle of separation of powers and is an
exception to the nondelegation of legislative powers.
Administrative regulations or "subordinate legislation"
calculated to promote the public interest are necessary because
of "the growing complexity of modern life, the multiplication of
the subjects of governmental regulations, and the increased
difficulty of administering the law."
xxxx
Nevertheless, it must be emphasized that the rule-making power
must be confined to details for regulating the mode or
proceeding to carry into effect the law as it has been enacted.
The power cannot be extended to amending or expanding the
statutory requirements or to embrace matters not covered by
the statute. Rules that subvert the statute cannot be sanctioned.
(Emphases supplied)
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF
Article, insofar as it confers post-enactment identification
authority to individual legislators, violates the principle of non-
delegability since said legislators are effectively allowed to
individually exercise the power of appropriation, which – as
settled in Philconsa – is lodged in Congress.201 That the power
to appropriate must be exercised only through legislation is clear
from Section 29(1), Article VI of the 1987 Constitution which
states that: "No money shall be paid out of the Treasury except
in pursuance of an appropriation made by law." To understand
what constitutes an act of appropriation, the Court, in Bengzon
v. Secretary of Justice and Insular Auditor202 (Bengzon), held
that the power of appropriation involves (a) the setting apart by
law of a certain sum from the public revenue for (b) a specified
purpose. Essentially, under the 2013 PDAF Article, individual
legislators are given a personal lump-sum fund from which they
are able to dictate (a) how much from such fund would go to (b)
a specific project or beneficiary that they themselves also
determine. As these two (2) acts comprise the exercise of the
power of appropriation as described in Bengzon, and given that
the 2013 PDAF Article authorizes individual legislators to
perform the same, undoubtedly, said legislators have been
conferred the power to legislate which the Constitution does
not, however, allow. Thus, keeping with the principle of non-
delegability of legislative power, the Court hereby declares the
2013 PDAF Article, as well as all other forms of Congressional
Pork Barrel which contain the similar legislative identification
feature as herein discussed, as unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government are
intended to be kept separate and distinct does not mean that
they are absolutely unrestrained and independent of each other.
The Constitution has also provided for an elaborate system of
checks and balances to secure coordination in the workings of
the various departments of the government.203
A prime example of a constitutional check and balance would be
the President’s power to veto an item written into an
appropriation, revenue or tariff bill submitted to him by
Congress for approval through a process known as "bill
presentment." The President‘s item-veto power is found in
Section 27(2), Article VI of the 1987 Constitution which reads as
follows:
Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any particular
item or items in an appropriation, revenue, or tariff bill, but the
veto shall not affect the item or items to which he does not
object.
The presentment of appropriation, revenue or tariff bills to the
President, wherein he may exercise his power of item-veto,
forms part of the "single, finely wrought and exhaustively
considered, procedures" for law-passage as specified under the
Constitution.204 As stated in Abakada, the final step in the law-
making process is the "submission of the bill to the President for
approval. Once approved, it takes effect as law after the
required publication."205
Elaborating on the President‘s item-veto power and its relevance
as a check on the legislature, the Court, in Bengzon, explained
that:206
The former Organic Act and the present Constitution of the
Philippines make the Chief Executive an integral part of the law-
making power. His disapproval of a bill, commonly known as a
veto, is essentially a legislative act. The questions presented to
the mind of the Chief Executive are precisely the same as those
the legislature must determine in passing a bill, except that his
will be a broader point of view.

The Constitution is a limitation upon the power of the legislative
department of the government, but in this respect it is a grant of
power to the executive department. The Legislature has the
affirmative power to enact laws; the Chief Executive has the
negative power by the constitutional exercise of which he may
defeat the will of the Legislature. It follows that the Chief
Executive must find his authority in the Constitution. But in
exercising that authority he may not be confined to rules of strict
construction or hampered by the unwise interference of the
judiciary. The courts will indulge every intendment in favor of
the constitutionality of a veto in the same manner as they will
presume the constitutionality of an act as originally passed by
the Legislature. (Emphases supplied)
The justification for the President‘s item-veto power rests on a
variety of policy goals such as to prevent log-rolling
legislation,207 impose fiscal restrictions on the legislature, as
well as to fortify the executive branch‘s role in the budgetary
process.208 In Immigration and Naturalization Service v.
Chadha, the US Supreme Court characterized the President‘s
item-power as "a salutary check upon the legislative body,
calculated to guard the community against the effects of
factions, precipitancy, or of any impulse unfriendly to the public
good, which may happen to influence a majority of that body";
phrased differently, it is meant to "increase the chances in favor
of the community against the passing of bad laws, through
haste, inadvertence, or design."209
For the President to exercise his item-veto power, it necessarily
follows that there exists a proper "item" which may be the
object of the veto. An item, as defined in the field of
appropriations, pertains to "the particulars, the details, the
distinct and severable parts of the appropriation or of the bill."
In the case of Bengzon v. Secretary of Justice of the Philippine
Islands,210 the US Supreme Court characterized an item of
appropriation as follows:
An item of an appropriation bill obviously means an item which,
in itself, is a specific appropriation of money, not some general
provision of law which happens to be put into an appropriation
bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill,
to ensure that the President may be able to exercise his power
of item veto, must contain "specific appropriations of money"
and not only "general provisions" which provide for parameters
of appropriation.
Further, it is significant to point out that an item of
appropriation must be an item characterized by singular
correspondence – meaning an allocation of a specified singular
amount for a specified singular purpose, otherwise known as a
"line-item."211 This treatment not only allows the item to be
consistent with its definition as a "specific appropriation of
money" but also ensures that the President may discernibly veto
the same. Based on the foregoing formulation, the existing
Calamity Fund, Contingent Fund and the Intelligence Fund, being
appropriations which state a specified amount for a specific
purpose, would then be considered as "line- item"
appropriations which are rightfully subject to item veto.
Likewise, it must be observed that an appropriation may be
validly apportioned into component percentages or values;
however, it is crucial that each percentage or value must be
allocated for its own corresponding purpose for such component
to be considered as a proper line-item. Moreover, as Justice
Carpio correctly pointed out, a valid appropriation may even
have several related purposes that are by accounting and
budgeting practice considered as one purpose, e.g., MOOE
(maintenance and other operating expenses), in which case the
related purposes shall be deemed sufficiently specific for the
exercise of the President‘s item veto power. Finally, special
purpose funds and discretionary funds would equally square
with the constitutional mechanism of item-veto for as long as
they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that
Section 25(4), Article VI of the 1987 Constitution requires that
the "special appropriations bill shall specify the purpose for
which it is intended, and shall be supported by funds actually
available as certified by the National Treasurer, or t o be raised
by a corresponding revenue proposal therein." Meanwhile, with
respect to discretionary funds, Section 2 5(6), Article VI of the
1987 Constitution requires that said funds "shall be disbursed
only for public purposes to be supported by appropriate
vouchers and subject to such guidelines as may be prescribed by
law."
In contrast, what beckons constitutional infirmity are
appropriations which merely provide for a singular lump-sum
amount to be tapped as a source of funding for multiple
purposes. Since such appropriation type necessitates the further
determination of both the actual amount to be expended and
the actual purpose of the appropriation which must still be
chosen from the multiple purposes stated in the law, it cannot
be said that the appropriation law already indicates a "specific
appropriation of money‖ and hence, without a proper line-item
which the President may veto. As a practical result, the President
would then be faced with the predicament of either vetoing the
entire appropriation if he finds some of its purposes wasteful or
undesirable, or approving the entire appropriation so as not to
hinder some of its legitimate purposes. Finally, it may not be
amiss to state that such arrangement also raises non-delegability
issues considering that the implementing authority would still
have to determine, again, both the actual amount to be
expended and the actual purpose of the appropriation. Since the
foregoing determinations constitute the integral aspects of the
power to appropriate, the implementing authority would, in
effect, be exercising legislative prerogatives in violation of the
principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system
where the PDAF is a lump-sum appropriation, the legislator‘s
identification of the projects after the passage of the GAA denies
the President the chance to veto that item later on."212
Accordingly, they submit that the "item veto power of the
President mandates that appropriations bills adopt line-item
budgeting" and that "Congress cannot choose a mode of
budgeting which effectively renders the constitutionally-given
power of the President useless."213
On the other hand, respondents maintain that the text of the
Constitution envisions a process which is intended to meet the
demands of a modernizing economy and, as such, lump-sum
appropriations are essential to financially address situations
which are barely foreseen when a GAA is enacted. They argue
that the decision of the Congress to create some lump-sum
appropriations is constitutionally allowed and textually-
grounded.214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of ₱24.79 Billion only
appears as a collective allocation limit since the said amount
would be further divided among individual legislators who would
then receive personal lump-sum allocations and could, after the
GAA is passed, effectively appropriate PDAF funds based on their
own discretion. As these intermediate appropriations are made
by legislators only after the GAA is passed and hence, outside of
the law, it necessarily means that the actual items of PDAF
appropriation would not have been written into the General
Appropriations Bill and thus effectuated without veto
consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget
within a budget" which subverts the prescribed procedure of
presentment and consequently impairs the President‘s power of
item veto. As petitioners aptly point out, the above-described
system forces the President to decide between (a) accepting the
entire ₱24.79 Billion PDAF allocation without knowing the
specific projects of the legislators, which may or may not be
consistent with his national agenda and (b) rejecting the whole
PDAF to the detriment of all other legislators with legitimate
projects.215
Moreover, even without its post-enactment legislative
identification feature, the 2013 PDAF Article would remain
constitutionally flawed since it would then operate as a
prohibited form of lump-sum appropriation above-
characterized. In particular, the lump-sum amount of ₱24.79
Billion would be treated as a mere funding source allotted for
multiple purposes of spending, i.e., scholarships, medical
missions, assistance to indigents, preservation of historical
materials, construction of roads, flood control, etc. This setup
connotes that the appropriation law leaves the actual amounts
and purposes of the appropriation for further determination
and, therefore, does not readily indicate a discernible item
which may be subject to the President‘s power of item veto.
In fact, on the accountability side, the same lump-sum budgeting
scheme has, as the CoA Chairperson relays, "limited state
auditors from obtaining relevant data and information that
would aid in more stringently auditing the utilization of said
Funds."216 Accordingly, she recommends the adoption of a "line
by line budget or amount per proposed program, activity or
project, and per implementing agency."217
Hence, in view of the reasons above-stated, the Court finds the
2013 PDAF Article, as well as all Congressional Pork Barrel Laws
of similar operation, to be unconstitutional. That such budgeting
system provides for a greater degree of flexibility to account for
future contingencies cannot be an excuse to defeat what the
Constitution requires. Clearly, the first and essential truth of the
matter is that unconstitutional means do not justify even
commendable ends.218
c. Accountability.
Petitioners further relate that the system under which various
forms of Congressional Pork Barrel operate defies public
accountability as it renders Congress incapable of checking itself
or its Members. In particular, they point out that the
Congressional Pork Barrel "gives each legislator a direct, financial
interest in the smooth, speedy passing of the yearly budget"
which turns them "from fiscalizers" into "financially-interested
partners."219 They also claim that the system has an effect on
re- election as "the PDAF excels in self-perpetuation of elective
officials." Finally, they add that the "PDAF impairs the power of
impeachment" as such "funds are indeed quite useful, ‘to well,
accelerate the decisions of senators.‘"220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987
Constitution, which states that "public office is a public trust," is
an overarching reminder that every instrumentality of
government should exercise their official functions only in
accordance with the principles of the Constitution which
embodies the parameters of the people‘s trust. The notion of a
public trust connotes accountability,221 hence, the various
mechanisms in the Constitution which are designed to exact
accountability from public officers.
Among others, an accountability mechanism with which the
proper expenditure of public funds may be checked is the power
of congressional oversight. As mentioned in Abakada,222
congressional oversight may be performed either through: (a)
scrutiny based primarily on Congress‘ power of appropriation
and the budget hearings conducted in connection with it, its
power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation;223 or (b)
investigation and monitoring of the implementation of laws
pursuant to the power of Congress to conduct inquiries in aid of
legislation.224
The Court agrees with petitioners that certain features
embedded in some forms of Congressional Pork Barrel, among
others the 2013 PDAF Article, has an effect on congressional
oversight. The fact that individual legislators are given post-
enactment roles in the implementation of the budget makes it
difficult for them to become disinterested "observers" when
scrutinizing, investigating or monitoring the implementation of
the appropriation law. To a certain extent, the conduct of
oversight would be tainted as said legislators, who are vested
with post-enactment authority, would, in effect, be checking on
activities in which they themselves participate. Also, it must be
pointed out that this very same concept of post-enactment
authorization runs afoul of Section 14, Article VI of the 1987
Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives
may personally appear as counsel before any court of justice or
before the Electoral Tribunals, or quasi-judicial and other
administrative bodies. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any franchise or
special privilege granted by the Government, or any subdivision,
agency, or instrumentality thereof, including any government-
owned or controlled corporation, or its subsidiary, during his
term of office. He shall not intervene in any matter before any
office of the Government for his pecuniary benefit or where he
may be called upon to act on account of his office. (Emphasis
supplied)
Clearly, allowing legislators to intervene in the various phases of
project implementation – a matter before another office of
government – renders them susceptible to taking undue
advantage of their own office.
The Court, however, cannot completely agree that the same
post-enactment authority and/or the individual legislator‘s
control of his PDAF per se would allow him to perpetuate
himself in office. Indeed, while the Congressional Pork Barrel and
a legislator‘s use thereof may be linked to this area of interest,
the use of his PDAF for re-election purposes is a matter which
must be analyzed based on particular facts and on a case-to-case
basis.
Finally, while the Court accounts for the possibility that the close
operational proximity between legislators and the Executive
department, through the former‘s post-enactment participation,
may affect the process of impeachment, this matter largely
borders on the domain of politics and does not strictly concern
the Pork Barrel System‘s intrinsic constitutionality. As such, it is
an improper subject of judicial assessment.
In sum, insofar as its post-enactment features dilute
congressional oversight and violate Section 14, Article VI of the
1987 Constitution, thus impairing public accountability, the 2013
PDAF Article and other forms of Congressional Pork Barrel of
similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System
enables politicians who are members of political dynasties to
accumulate funds to perpetuate themselves in power, in
contravention of Section 26, Article II of the 1987
Constitution225 which states that:
Sec. 26. The State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be
defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is
considered as not self-executing due to the qualifying phrase "as
may be defined by law." In this respect, said provision does not,
by and of itself, provide a judicially enforceable constitutional
right but merely specifies guideline for legislative or executive
action.226 Therefore, since there appears to be no standing law
which crystallizes the policy on political dynasties for
enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this
score to be largely speculative since it has not been properly
demonstrated how the Pork Barrel System would be able to
propagate political dynasties.
5. Local Autonomy.
The State‘s policy on local autonomy is principally stated in
Section 25, Article II and Sections 2 and 3, Article X of the 1987
Constitution which read as follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local
governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local
autonomy.
Sec. 3. The Congress shall enact a local government code which
shall provide for a more responsive and accountable local
government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative,
and referendum, allocate among the different local government
units their powers, responsibilities, and resources, and provide
for the qualifications, election, appointment and removal, term,
salaries, powers and functions and duties of local officials, and
all other matters relating to the organization and operation of
the local units.
Pursuant thereto, Congress enacted RA 7160,227 otherwise
known as the "Local Government Code of 1991" (LGC), wherein
the policy on local autonomy had been more specifically
explicated as follows:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy
of the State that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the
attainment of national goals. Toward this end, the State shall
provide for a more responsive and accountable local
government structure instituted through a system of
decentralization whereby local government units shall be given
more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the National
Government to the local government units.
xxxx
(c) It is likewise the policy of the State to require all national
agencies and offices to conduct periodic consultations with
appropriate local government units, nongovernmental and
people‘s organizations, and other concerned sectors of the
community before any project or program is implemented in
their respective jurisdictions. (Emphases and underscoring
supplied)
The above-quoted provisions of the Constitution and the LGC
reveal the policy of the State to empower local government
units (LGUs) to develop and ultimately, become self-sustaining
and effective contributors to the national economy. As explained
by the Court in Philippine Gamefowl Commission v. Intermediate
Appellate Court:228
This is as good an occasion as any to stress the commitment of
the Constitution to the policy of local autonomy which is
intended to provide the needed impetus and encouragement to
the development of our local political subdivisions as "self -
reliant communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the great one
derives its strength." The vitalization of local governments will
enable their inhabitants to fully exploit their resources and more
important, imbue them with a deepened sense of involvement
in public affairs as members of the body politic. This objective
could be blunted by undue interference by the national
government in purely local affairs which are best resolved by the
officials and inhabitants of such political units. The decision we
reach today conforms not only to the letter of the pertinent laws
but also to the spirit of the Constitution.229 (Emphases and
underscoring supplied)
In the cases at bar, petitioners contend that the Congressional
Pork Barrel goes against the constitutional principles on local
autonomy since it allows district representatives, who are
national officers, to substitute their judgments in utilizing public
funds for local development.230 The Court agrees with
petitioners.

Philconsa described the 1994 CDF as an attempt "to make equal
the unequal" and that "it is also a recognition that individual
members of Congress, far more than the President and their
congressional colleagues, are likely to be knowledgeable about
the needs of their respective constituents and the priority to be
given each project."231 Drawing strength from this
pronouncement, previous legislators justified its existence by
stating that "the relatively small projects implemented under the
Congressional Pork Barrel complement and link the national
development goals to the countryside and grassroots as well as
to depressed areas which are overlooked by central agencies
which are preoccupied with mega-projects.232 Similarly, in his
August 23, 2013 speech on the "abolition" of PDAF and
budgetary reforms, President Aquino mentioned that the
Congressional Pork Barrel was originally established for a worthy
goal, which is to enable the representatives to identify projects
for communities that the LGU concerned cannot afford.233
Notwithstanding these declarations, the Court, however, finds
an inherent defect in the system which actually belies the
avowed intention of "making equal the unequal." In particular,
the Court observes that the gauge of PDAF and CDF
allocation/division is based solely on the fact of office, without
taking into account the specific interests and peculiarities of the
district the legislator represents. In this regard, the
allocation/division limits are clearly not based on genuine
parameters of equality, wherein economic or geographic
indicators have been taken into consideration. As a result, a
district representative of a highly-urbanized metropolis gets the
same amount of funding as a district representative of a far-
flung rural province which would be relatively "underdeveloped"
compared to the former. To add, what rouses graver scrutiny is
that even Senators and Party-List Representatives – and in some
years, even the Vice-President – who do not represent any
locality, receive funding from the Congressional Pork Barrel as
well. These certainly are anathema to the Congressional Pork
Barrel‘s original intent which is "to make equal the unequal."
Ultimately, the PDAF and CDF had become personal funds under
the effective control of each legislator and given unto them on
the sole account of their office.
The Court also observes that this concept of legislator control
underlying the CDF and PDAF conflicts with the functions of the
various Local Development Councils (LDCs) which are already
legally mandated to "assist the corresponding sanggunian in
setting the direction of economic and social development, and
coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities
whose functions are essentially geared towards managing local
affairs,235 their programs, policies and resolutions should not be
overridden nor duplicated by individual legislators, who are
national officers that have no law-making authority except only
when acting as a body. The undermining effect on local
autonomy caused by the post-enactment authority conferred to
the latter was succinctly put by petitioners in the following
wise:236
With PDAF, a Congressman can simply bypass the local
development council and initiate projects on his own, and even
take sole credit for its execution. Indeed, this type of
personality-driven project identification has not only contributed
little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and
coordination efforts of the government."
Thus, insofar as individual legislators are authorized to intervene
in purely local matters and thereby subvert genuine local
autonomy, the 2013 PDAF Article as well as all other similar
forms of Congressional Pork Barrel is deemed unconstitutional.
With this final issue on the Congressional Pork Barrel resolved,
the Court now turns to the substantive issues involving the
Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section
12 of PD1869 (now, amended by PD 1993), which respectively
provide for the Malampaya Funds and the Presidential Social
Fund, as invalid appropriations laws since they do not have the
"primary and specific" purpose of authorizing the release of
public funds from the National Treasury. Petitioners submit that
Section 8 of PD 910 is not an appropriation law since the
"primary and specific‖ purpose of PD 910 is the creation of an
Energy Development Board and Section 8 thereof only created a
Special Fund incidental thereto.237 In similar regard, petitioners
argue that Section 12 of PD 1869 is neither a valid
appropriations law since the allocation of the Presidential Social
Fund is merely incidental to the "primary and specific" purpose
of PD 1869 which is the amendment of the Franchise and
Powers of PAGCOR.238 In view of the foregoing, petitioners
suppose that such funds are being used without any valid law
allowing for their proper appropriation in violation of Section
29(1), Article VI of the 1987 Constitution which states that: "No
money shall be paid out of the Treasury except in pursuance of
an appropriation made by law."239
The Court disagrees.
"An appropriation made by law‖ under the contemplation of
Section 29(1), Article VI of the 1987 Constitution exists when a
provision of law (a) sets apart a determinate or determinable240
amount of money and (b) allocates the same for a particular
public purpose. These two minimum designations of amount and
purpose stem from the very definition of the word
"appropriation," which means "to allot, assign, set apart or apply
to a particular use or purpose," and hence, if written into the
law, demonstrate that the legislative intent to appropriate
exists. As the Constitution "does not provide or prescribe any
particular form of words or religious recitals in which an
authorization or appropriation by Congress shall be made,
except that it be ‘made by law,‘" an appropriation law may –
according to Philconsa – be "detailed and as broad as Congress
wants it to be" for as long as the intent to appropriate may be
gleaned from the same. As held in the case of Guingona, Jr.:241
There is no provision in our Constitution that provides or
prescribes any particular form of words or religious recitals in
which an authorization or appropriation by Congress shall be
made, except that it be "made by law," such as precisely the
authorization or appropriation under the questioned
presidential decrees. In other words, in terms of time horizons,
an appropriation may be made impliedly (as by past but
subsisting legislations) as well as expressly for the current fiscal
year (as by enactment of laws by the present Congress), just as
said appropriation may be made in general as well as in specific
terms. The Congressional authorization may be embodied in
annual laws, such as a general appropriations act or in special
provisions of laws of general or special application which
appropriate public funds for specific public purposes, such as the
questioned decrees. An appropriation measure is sufficient if the
legislative intention clearly and certainly appears from the
language employed (In re Continuing Appropriations, 32 P. 272),
whether in the past or in the present. (Emphases and
underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada v.
La Grave:242
To constitute an appropriation there must be money placed in a
fund applicable to the designated purpose. The word
appropriate means to allot, assign, set apart or apply to a
particular use or purpose. An appropriation in the sense of the
constitution means the setting apart a portion of the public
funds for a public purpose. No particular form of words is
necessary for the purpose, if the intention to appropriate is
plainly manifested. (Emphases supplied)
Thus, based on the foregoing, the Court cannot sustain the
argument that the appropriation must be the "primary and
specific" purpose of the law in order for a valid appropriation
law to exist. To reiterate, if a legal provision designates a
determinate or determinable amount of money and allocates
the same for a particular public purpose, then the legislative
intent to appropriate becomes apparent and, hence, already
sufficient to satisfy the requirement of an "appropriation made
by law" under contemplation of the Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all
sources including receipts from service contracts and
agreements such as application and processing fees, signature
bonus, discovery bonus, production bonus; all money collected
from concessionaires, representing unspent work obligations,
fines and penalties under the Petroleum Act of 1949; as well as
the government share representing royalties, rentals, production
share on service contracts and similar payments on the
exploration, development and exploitation of energy resources,
shall form part of a Special Fund to be used to finance energy
resource development and exploitation programs and projects
of the government and for such other purposes as may be
hereafter directed by the President. (Emphases supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. — After deducting five
(5%) percent as Franchise Tax, the Fifty (50%) percent share of
the Government in the aggregate gross earnings of the
Corporation from this Franchise, or 60% if the aggregate gross
earnings be less than ₱150,000,000.00 shall be set aside and
shall accrue to the General Fund to finance the priority
infrastructure development projects and to finance the
restoration of damaged or destroyed facilities due to calamities,
as may be directed and authorized by the Office of the President
of the Philippines. (Emphases supplied)
Analyzing the legal text vis-à-vis the above-mentioned principles,
it may then be concluded that (a) Section 8 of PD 910, which
creates a Special Fund comprised of "all fees, revenues, and
receipts of the Energy Development Board from any and all
sources" (a determinable amount) "to be used to finance energy
resource development and exploitation programs and projects
of the government and for such other purposes as may be
hereafter directed by the President" (a specified public purpose),
and (b) Section 12 of PD 1869, as amended by PD 1993, which
similarly sets aside, "after deducting five (5%) percent as
Franchise Tax, the Fifty (50%) percent share of the Government
in the aggregate gross earnings of PAGCOR, or 60%, if the
aggregate gross earnings be less than ₱150,000,000.00" (also a
determinable amount) "to finance the priority infrastructure
development projects and x x x the restoration of damaged or
destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines" (also
a specified public purpose), are legal appropriations under
Section 29(1), Article VI of the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article
cannot be properly deemed as a legal appropriation under the
said constitutional provision precisely because, as earlier stated,
it contains post-enactment measures which effectively create a
system of intermediate appropriations. These intermediate
appropriations are the actual appropriations meant for
enforcement and since they are made by individual legislators
after the GAA is passed, they occur outside the law. As such, the
Court observes that the real appropriation made under the 2013
PDAF Article is not the ₱24.79 Billion allocated for the entire
PDAF, but rather the post-enactment determinations made by
the individual legislators which are, to repeat, occurrences
outside of the law. Irrefragably, the 2013 PDAF Article does not
constitute an "appropriation made by law" since it, in its truest
sense, only authorizes individual legislators to appropriate in
violation of the non-delegability principle as afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD
910 constitutes an undue delegation of legislative power since
the phrase "and for such other purposes as may be hereafter
directed by the President" gives the President "unbridled
discretion to determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the Court to
apply the principle of ejusdem generis to the same section and
thus, construe the phrase "and for such other purposes as may
be hereafter directed by the President" to refer only to other
purposes related "to energy resource development and
exploitation programs and projects of the government."244
The Court agrees with petitioners‘ submissions.
While the designation of a determinate or determinable amount
for a particular public purpose is sufficient for a legal
appropriation to exist, the appropriation law must contain
adequate legislative guidelines if the same law delegates rule-
making authority to the Executive245 either for the purpose of
(a) filling up the details of the law for its enforcement, known as
supplementary rule-making, or (b) ascertaining facts to bring the
law into actual operation, referred to as contingent rule-
making.246 There are two (2) fundamental tests to ensure that
the legislative guidelines for delegated rule-making are indeed
adequate. The first test is called the "completeness test." Case
law states that a law is complete when it sets forth therein the
policy to be executed, carried out, or implemented by the
delegate. On the other hand, the second test is called the
"sufficient standard test." Jurisprudence holds that a law lays
down a sufficient standard when it provides adequate guidelines
or limitations in the law to map out the boundaries of the
delegate‘s authority and prevent the delegation from running
riot.247 To be sufficient, the standard must specify the limits of
the delegate‘s authority, announce the legislative policy, and
identify the conditions under which it is to be implemented.248
In view of the foregoing, the Court agrees with petitioners that
the phrase "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910 constitutes
an undue delegation of legislative power insofar as it does not
lay down a sufficient standard to adequately determine the
limits of the President‘s authority with respect to the purpose
for which the Malampaya Funds may be used. As it reads, the
said phrase gives the President wide latitude to use the
Malampaya Funds for any other purpose he may direct and, in
effect, allows him to unilaterally appropriate public funds
beyond the purview of the law. That the subject phrase may be
confined only to "energy resource development and exploitation
programs and projects of the government" under the principle
of ejusdem generis, meaning that the general word or phrase is
to be construed to include – or be restricted to – things akin to,
resembling, or of the same kind or class as those specifically
mentioned,249 is belied by three (3) reasons: first, the phrase
"energy resource development and exploitation programs and
projects of the government" states a singular and general class
and hence, cannot be treated as a statutory reference of specific
things from which the general phrase "for such other purposes"
may be limited; second, the said phrase also exhausts the class it
represents, namely energy development programs of the
government;250 and, third, the Executive department has, in
fact, used the Malampaya Funds for non-energy related
purposes under the subject phrase, thereby contradicting
respondents‘ own position that it is limited only to "energy
resource development and exploitation programs and projects
of the government."251 Thus, while Section 8 of PD 910 may
have passed the completeness test since the policy of energy
development is clearly deducible from its text, the phrase "and
for such other purposes as may be hereafter directed by the
President" under the same provision of law should nonetheless
be stricken down as unconstitutional as it lies independently
unfettered by any sufficient standard of the delegating law. This
notwithstanding, it must be underscored that the rest of Section
8, insofar as it allows for the use of the Malampaya Funds "to
finance energy resource development and exploitation programs
and projects of the government," remains legally effective and
subsisting. Truth be told, the declared unconstitutionality of the
aforementioned phrase is but an assurance that the Malampaya
Funds would be used – as it should be used – only in accordance
with the avowed purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice
of the fact that Section 12 of PD 1869 has already been amended
by PD 1993 which thus moots the parties‘ submissions on the
same.252 Nevertheless, since the amendatory provision may be
readily examined under the current parameters of discussion,
the Court proceeds to resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993,
indicates that the Presidential Social Fund may be used "to first,
finance the priority infrastructure development projects and
second, to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines." The Court finds
that while the second indicated purpose adequately curtails the
authority of the President to spend the Presidential Social Fund
only for restoration purposes which arise from calamities, the
first indicated purpose, however, gives him carte blanche
authority to use the same fund for any infrastructure project he
may so determine as a "priority". Verily, the law does not supply
a definition of "priority in frastructure development projects"
and hence, leaves the President without any guideline to
construe the same. To note, the delimitation of a project as one
of "infrastructure" is too broad of a classification since the said
term could pertain to any kind of facility. This may be deduced
from its lexicographic definition as follows: "the underlying
framework of a system, especially public services and facilities
(such as highways, schools, bridges, sewers, and water-systems)
needed to support commerce as well as economic and
residential development."253 In fine, the phrase "to finance the
priority infrastructure development projects" must be stricken
down as unconstitutional since – similar to the above-assailed
provision under Section 8 of PD 910 – it lies independently
unfettered by any sufficient standard of the delegating law. As
they are severable, all other provisions of Section 12 of PD 1869,
as amended by PD 1993, remains legally effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System
unconstitutional – as the Court did so in the context of its
pronouncements made in this Decision – petitioners equally
pray that the Executive Secretary and/or the DBM be ordered to
release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and
VILP from the years 2003 to 2013, specifying the use of the
funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto" (PDAF Use
Schedule/List);254 and (b) "the use of the Executive‘s lump-sum,
discretionary funds, including the proceeds from the x x x
Malampaya Funds and remittances from the PAGCOR x x x from
2003 to 2013, specifying the x x x project or activity and the
recipient entities or individuals, and all pertinent data
thereto"255 (Presidential Pork Use Report). Petitioners‘ prayer is
grounded on Section 28, Article II and Section 7, Article III of the
1987 Constitution which read as follows:
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.
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 acts, transactions, or
decisions, as well as to government research data used as basis
for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.
The Court denies petitioners‘ submission.
Case law instructs that the proper remedy to invoke the right to
information is to file a petition for mandamus. As explained in
the case of Legaspi v. Civil Service Commission:256
While the manner of examining public records may be subject to
reasonable regulation by the government agency in custody
thereof, the duty to disclose the information of public concern,
and to afford access to public records cannot be discretionary on
the part of said agencies. Certainly, its performance cannot be
made contingent upon the discretion of such agencies.
Otherwise, the enjoyment of the constitutional right may be
rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its
performance may be compelled by a writ of mandamus in a
proper case.
But what is a proper case for Mandamus to issue? In the case
before Us, the public right to be enforced and the concomitant
duty of the State are unequivocably set forth in the Constitution.
The decisive question on the propriety of the issuance of the
writ of mandamus in this case is, whether the information
sought by the petitioner is within the ambit of the constitutional
guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr.257
(Valmonte), it has been clarified that the right to information
does not include the right to compel the preparation of "lists,
abstracts, summaries and the like." In the same case, it was
stressed that it is essential that the "applicant has a well -
defined, clear and certain legal right to the thing demanded and
that it is the imperative duty of defendant to perform the act
required." Hence, without the foregoing substantiations, the
Court cannot grant a particular request for information. The
pertinent portions of Valmonte are hereunder quoted:258
Although citizens are afforded the right to information and,
pursuant thereto, are entitled to "access to official records," the
Constitution does not accord them a right to compel custodians
of official records to prepare lists, abstracts, summaries and the
like in their desire to acquire information on matters of public
concern.
It must be stressed that it is essential for a writ of mandamus to
issue that the applicant has a well-defined, clear and certain
legal right to the thing demanded and that it is the imperative
duty of defendant to perform the act required. The
corresponding duty of the respondent to perform the required
act must be clear and specific Lemi v. Valencia, G.R. No. L-20768,
November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-
28344, August 27, 1976, 72 SCRA 443.
The request of the petitioners fails to meet this standard, there
being no duty on the part of respondent to prepare the list
requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are
in the nature of mandamus actions, the Court finds that
petitioners have failed to establish a "a well-defined, clear and
certain legal right" to be furnished by the Executive Secretary
and/or the DBM of their requested PDAF Use Schedule/List and
Presidential Pork Use Report. Neither did petitioners assert any
law or administrative issuance which would form the bases of
the latter‘s duty to furnish them with the documents requested.
While petitioners pray that said information be equally released
to the CoA, it must be pointed out that the CoA has not been
impleaded as a party to these cases nor has it filed any petition
before the Court to be allowed access to or to compel the
release of any official document relevant to the conduct of its
audit investigations. While the Court recognizes that the
information requested is a matter of significant public concern,
however, if only to ensure that the parameters of disclosure are
properly foisted and so as not to unduly hamper the equally
important interests of the government, it is constrained to deny
petitioners‘ prayer on this score, without prejudice to a proper
mandamus case which they, or even the CoA, may choose to
pursue through a separate petition.
It bears clarification that the Court‘s denial herein should only
cover petitioners‘ plea to be furnished with such schedule/list
and report and not in any way deny them, or the general public,
access to official documents which are already existing and of
public record. Subject to reasonable regulation and absent any
valid statutory prohibition, access to these documents should
not be proscribed. Thus, in Valmonte, while the Court denied the
application for mandamus towards the preparation of the list
requested by petitioners therein, it nonetheless allowed access
to the documents sought for by the latter, subject, however, to
the custodian‘s reasonable regulations,viz.:259
In fine, petitioners are entitled to access to the documents
evidencing loans granted by the GSIS, subject to reasonable
regulations that the latter may promulgate relating to the
manner and hours of examination, to the end that damage to or
loss of the records may be avoided, that undue interference with
the duties of the custodian of the records may be prevented and
that the right of other persons entitled to inspect the records
may be insured Legaspi v. Civil Service Commission, supra at p.
538, quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as
to the second and third alternative acts sought to be done by
petitioners, is meritorious.
However, the same cannot be said with regard to the first act
sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang
Pambansa members belonging to the UNIDO and PDP-Laban
who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the
then First Lady Imelda Marcos."
The Court, therefore, applies the same treatment here.
2. Petitioners’ Prayer to Include Matters in Congressional
Deliberations.
Petitioners further seek that the Court "order the inclusion in
budgetary deliberations with the Congress of all presently, off-
budget, lump sum, discretionary funds including but not limited
to, proceeds from the x x x Malampaya Fund, remittances from
the PAGCOR and the PCSO or the Executive‘s Social Funds."260
Suffice it to state that the above-stated relief sought by
petitioners covers a matter which is generally left to the
prerogative of the political branches of government. Hence, lest
the Court itself overreach, it must equally deny their prayer on
this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of
Decision.
The final issue to be resolved stems from the interpretation
accorded by the DBM to the concept of released funds. In
response to the Court‘s September 10, 2013 TRO that enjoined
the release of the remaining PDAF allocated for the year 2013,
the DBM issued Circular Letter No. 2013-8 dated September 27,
2013 (DBM Circular 2013-8) which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA,
where a Special Allotment Release Order (SARO) has been issued
by the DBM and such SARO has been obligated by the
implementing agencies prior to the issuance of the TRO, may
continually be implemented and disbursements thereto effected
by the agencies concerned.
Based on the text of the foregoing, the DBM authorized the
continued implementation and disbursement of PDAF funds as
long as they are: first, covered by a SARO; and, second, that said
SARO had been obligated by the implementing agency
concerned prior to the issuance of the Court‘s September 10,
2013 TRO.
Petitioners take issue with the foregoing circular, arguing that
"the issuance of the SARO does not yet involve the release of
funds under the PDAF, as release is only triggered by the
issuance of a Notice of Cash Allocation [(NCA)]."261 As such,
PDAF disbursements, even if covered by an obligated SARO,
should remain enjoined.
For their part, respondents espouse that the subject TRO only
covers "unreleased and unobligated allotments." They explain
that once a SARO has been issued and obligated by the
implementing agency concerned, the PDAF funds covered by the
same are already "beyond the reach of the TRO because they
cannot be considered as ‘remaining PDAF.‘" They conclude that
this is a reasonable interpretation of the TRO by the DBM.262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or
not the Court‘s September 10, 2013 TRO should be lifted is a
matter rendered moot by the present Decision. The
unconstitutionality of the 2013 PDAF Article as declared herein
has the consequential effect of converting the temporary
injunction into a permanent one. Hence, from the promulgation
of this Decision, the release of the remaining PDAF funds for
2013, among others, is now permanently enjoined.
The propriety of the DBM‘s interpretation of the concept of
"release" must, nevertheless, be resolved as it has a practical
impact on the execution of the current Decision. In particular,
the Court must resolve the issue of whether or not PDAF funds
covered by obligated SAROs, at the time this Decision is
promulgated, may still be disbursed following the DBM‘s
interpretation in DBM Circular 2013-8.
On this score, the Court agrees with petitioners‘ posturing for
the fundamental reason that funds covered by an obligated
SARO are yet to be "released" under legal contemplation. A
SARO, as defined by the DBM itself in its website, is "aspecific
authority issued to identified agencies to incur obligations not
exceeding a given amount during a specified period for the
purpose indicated. It shall cover expenditures the release of
which is subject to compliance with specific laws or regulations,
or is subject to separate approval or clearance by competent
authority."263
Based on this definition, it may be gleaned that a SARO only
evinces the existence of an obligation and not the directive to
pay. Practically speaking, the SARO does not have the direct and
immediate effect of placing public funds beyond the control of
the disbursing authority. In fact, a SARO may even be withdrawn
under certain circumstances which will prevent the actual
release of funds. On the other hand, the actual release of funds
is brought about by the issuance of the NCA,264 which is
subsequent to the issuance of a SARO. As may be determined
from the statements of the DBM representative during the Oral
Arguments:265
Justice Bernabe: Is the notice of allocation issued simultaneously
with the SARO?
xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go
signal for the agencies to obligate or to enter into commitments.
The NCA, Your Honor, is already the go signal to the treasury for
us to be able to pay or to liquidate the amounts obligated in the
SARO; so it comes after. x x x The NCA, Your Honor, is the go
signal for the MDS for the authorized government-disbursing
banks to, therefore, pay the payees depending on the projects or
projects covered by the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or
revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there
are instances that the SAROs issued are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring
supplied)
Thus, unless an NCA has been issued, public funds should not be
treated as funds which have been "released." In this respect,
therefore, the disbursement of 2013 PDAF funds which are only
covered by obligated SAROs, and without any corresponding
NCAs issued, must, at the time of this Decision’s promulgation,
be enjoined and consequently reverted to the unappropriated
surplus of the general fund. Verily, in view of the declared
unconstitutionality of the 2013 PDAF Article, the funds
appropriated pursuant thereto cannot be disbursed even though
already obligated, else the Court sanctions the dealing of funds
coming from an unconstitutional source.
This same pronouncement must be equally applied to (a) the
Malampaya Funds which have been obligated but not released –
meaning, those merely covered by a SARO – under the phrase
"and for such other purposes as may be hereafter directed by
the President" pursuant to Section 8 of PD 910; and (b) funds
sourced from the Presidential Social Fund under the phrase "to
finance the priority infrastructure development projects"
pursuant to Section 12 of PD 1869, as amended by PD 1993,
which were altogether declared by the Court as
unconstitutional. However, these funds should not be reverted
to the general fund as afore-stated but instead, respectively
remain under the Malampaya Funds and the Presidential Social
Fund to be utilized for their corresponding special purposes not
otherwise declared as unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Court‘s
pronouncement anent the unconstitutionality of (a) the 2013
PDAF Article and its Special Provisions, (b) all other
Congressional Pork Barrel provisions similar thereto, and (c) the
phrases (1) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910, and (2) "to
finance the priority infrastructure development projects" under
Section 12 of PD 1869, as amended by PD 1993, must only be
treated as prospective in effect in view of the operative fact
doctrine.
To explain, the operative fact doctrine exhorts the recognition
that until the judiciary, in an appropriate case, declares the
invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and
respect and should be properly enforced and complied with. As
explained in the recent case of Commissioner of Internal
Revenue v. San Roque Power Corporation,266 the doctrine
merely "reflects 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."267 "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.‘"268
For these reasons, this Decision should be heretofore applied
prospectively.
Conclusion
The Court renders this Decision to rectify an error which has
persisted in the chronicles of our history. In the final analysis,
the Court must strike down the Pork Barrel System as
unconstitutional in view of the inherent defects in the rules
within which it operates. To recount, insofar as it has allowed
legislators to wield, in varying gradations, non-oversight, post-
enactment authority in vital areas of budget execution, the
system has violated the principle of separation of powers;
insofar as it has conferred unto legislators the power of
appropriation by giving them personal, discretionary funds from
which they are able to fund specific projects which they
themselves determine, it has similarly violated the principle of
non-delegability of legislative power ; insofar as it has created a
system of budgeting wherein items are not textualized into the
appropriations bill, it has flouted the prescribed procedure of
presentment and, in the process, denied the President the
power to veto items ; insofar as it has diluted the effectiveness
of congressional oversight by giving legislators a stake in the
affairs of budget execution, an aspect of governance which they
may be called to monitor and scrutinize, the system has equally
impaired public accountability ; insofar as it has authorized
legislators, who are national officers, to intervene in affairs of
purely local nature, despite the existence of capable local
institutions, it has likewise subverted genuine local autonomy ;
and again, insofar as it has conferred to the President the power
to appropriate funds intended by law for energy-related
purposes only to other purposes he may deem fit as well as
other public funds under the broad classification of "priority
infrastructure development projects," it has once more
transgressed the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of the
multifarious unconstitutional methods and mechanisms the
Court has herein pointed out should never again be adopted in
any system of governance, by any name or form, by any
semblance or similarity, by any influence or effect. Disconcerting
as it is to think that a system so constitutionally unsound has
monumentally endured, the Court urges the people and its co-
stewards in government to look forward with the optimism of
change and the awareness of the past. At a time of great civic
unrest and vociferous public debate, the Court fervently hopes
that its Decision today, while it may not purge all the wrongs of
society nor bring back what has been lost, guides this nation to
the path forged by the Constitution so that no one may
heretofore detract from its cause nor stray from its course. After
all, this is the Court‘s bounden duty and no other‘s.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the
constitutional violations discussed in this Decision, the Court
hereby declares as UNCONSTITUTIONAL: (a) the entire 2013
PDAF Article; (b) all legal provisions of past and present
Congressional Pork Barrel Laws, such as the previous PDAF and
CDF Articles and the various Congressional Insertions, which
authorize/d legislators – whether individually or collectively
organized into committees – to intervene, assume or participate
in any of the various post-enactment stages of the budget
execution, such as but not limited to the areas of project
identification, modification and revision of project identification,
fund release and/or fund realignment, unrelated to the power of
congressional oversight; (c) all legal provisions of past and
present Congressional Pork Barrel Laws, such as the previous
PDAF and CDF Articles and the various Congressional Insertions,
which confer/red personal, lump-sum allocations to legislators
from which they are able to fund specific projects which they
themselves determine; (d) all informal practices of similar import
and effect, which the Court similarly deems to be acts of grave
abuse of discretion amounting to lack or excess of jurisdiction;
and (e) the phrases (1) "and for such other purposes as may be
hereafter directed by the President" under Section 8 of
Presidential Decree No. 910 and (2) "to finance the priority
infrastructure development projects" under Section 12 of
Presidential Decree No. 1869, as amended by Presidential
Decree No. 1993, for both failing the sufficient standard test in
violation of the principle of non-delegability of legislative power.
Accordingly, the Court‘s temporary injunction dated September
10, 2013 is hereby declared to be PERMANENT. Thus, the
disbursement/release of the remaining PDAF funds allocated for
the year 2013, as well as for all previous years, and the funds
sourced from (1) the Malampaya Funds under the phrase "and
for such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of Presidential Decree No. 910,
and (2) the Presidential Social Fund under the phrase "to finance
the priority infrastructure development projects" pursuant to
Section 12 of Presidential Decree No. 1869, as amended by
Presidential Decree No. 1993, which are, at the time this
Decision is promulgated, not covered by Notice of Cash
Allocations (NCAs) but only by Special Allotment Release Orders
(SAROs), whether obligated or not, are hereby ENJOINED. The
remaining PDAF funds covered by this permanent injunction
shall not be disbursed/released but instead reverted to the
unappropriated surplus of the general fund, while the funds
under the Malampaya Funds and the Presidential Social Fund
shall remain therein to be utilized for their respective special
purposes not otherwise declared as unconstitutional.
On the other hand, due to improper recourse and lack of proper
substantiation, the Court hereby DENIES petitioners‘ prayer
seeking that the Executive Secretary and/or the Department of
Budget and Management be ordered to provide the public and
the Commission on Audit complete lists/schedules or detailed
reports related to the availments and utilization of the funds
subject of these cases. Petitioners‘ access to official documents
already available and of public record which are related to these
funds must, however, not be prohibited but merely subjected to
the custodian‘s reasonable regulations or any valid statutory
prohibition on the same. This denial is without prejudice to a
proper mandamus case which they or the Commission on Audit
may choose to pursue through a separate petition.

The Court also DENIES petitioners prayer to order the inclusion

of the funds subject of these cases in the budgetary
deliberations of Congress as the same is a matter left to the
prerogative of the political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the

government to, within the bounds of reasonable dispatch,
investigate and accordingly prosecute all government officials
and/or private individuals for possible criminal offenses related
to the irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork Barrel
System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice
G.R. No. 88211 September 15, 1989 117 SCRA 668
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS, JR., IRENE M. ARANETA, IMEE 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.
CORTES, J.:
Before the Court is a contreversy of grave national importance.
While ostensibly only legal issues are involved, the Court's
decision in this case would undeniably have a profound effect on
the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was
deposed from the presidency via the non-violent "people
power" revolution and forced into exile. In his stead, Corazon C.
Aquino was declared President of the Republic under a
revolutionary government. Her ascension to and consilidation of
power have not been unchallenged. The failed Manila Hotel
coup in 1986 led by political leaders of Mr. Marcos, the takeover
of television station Channel 7 by rebel troops led by Col. Canlas
with the support of "Marcos loyalists" and the unseccessful plot
of the Marcos spouses to surreptitiously return from Hawii with
mercenaries aboard an aircraft chartered by a Lebanese arms
dealer [Manila Bulletin, January 30, 1987] awakened the nation
to the capacity of the Marcoses to stir trouble even from afar
and to the fanaticism and blind loyalty of their followers in the
country. The ratification of the 1987 Constitution enshrined the
victory of "people power" and also clearly reinforced the
constitutional moorings of Mrs. Aquino's presidency. This did
not, however, stop bloody challenges to the government. On
August 28, 1987, Col. Gregorio Honasan, one of the major
players in the February Revolution, led a failed coup that left
scores of people, both combatants and civilians, dead. There
were several other armed sorties of lesser significance, but the
message they conveyed was the same — a split in the ranks of
the military establishment that thraetened civilian supremacy
over military and brought to the fore the realization that civilian
government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found
in misguided elements and among rabid followers of Mr.
Marcos. There are also the communist insurgency and the
seccessionist movement in Mindanao which gained ground
during the rule of Mr. Marcos, to the extent that the
communists have set up a parallel government of their own on
the areas they effectively control while the separatist are
virtually free to move about in armed bands. There has been no
let up on this groups' determination to wrest power from the
govermnent. Not only through resort to arms but also to
through the use of propaganda have they been successful in
dreating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The
accumulated foreign debt and the plunder of the nation
attributed to Mr. Marcos and his cronies left the economy
devastated. The efforts at economic recovery, three years after
Mrs. Aquino assumed office, have yet to show concrete results
in alleviating the poverty of the masses, while the recovery of
the ill-gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to
return to the Philipppines to die. But Mrs. Aquino, considering
the dire consequences to the nation of his return at a time when
the stability of government is threatened from various directions
and the economy is just beginning to rise and move forward, has
stood firmly on the decision to bar the return of Mr. Marcos and
his family.
The Petition
This case is unique. It should not create a precedent, for the case
of a dictator forced out of office and into exile after causing
twenty years of political, economic and social havoc in the
country and who within the short space of three years seeks to
return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to
order the respondents to issue travel documents to Mr. Marcos
and the immediate members of his family and to enjoin the
implementation of the President's decision to bar their return
to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the
exercise of the powers granted by the Constitution, the
President may prohibit the Marcoses from returning to the
Philippines.
According to the petitioners, the resolution of the case would
depend on the resolution of the following issues:
1. Does the President have the power to bar the return
of former President Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar
former President Marcos and his family from returning to the
Philippines, in the interest of "national security, public safety or
public health
a. Has the President made a finding that the return of
former President Marcos and his family to the Philippines is a
clear and present danger to national security, public safety or
public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied
with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed
with, has the President's decision, including the grounds upon
which it was based, been made known to petitioners so that
they may controvert the same?

c. Is the President's determination that the return of
former President Marcos and his family to the Philippines is a
clear and present danger to national security, public safety, or
public health a political question?
d. Assuming that the Court may inquire as to whether the
return of former President Marcos and his family is a clear and
present danger to national security, public safety, or public
health, have respondents established such fact?
3. Have the respondents, therefore, in implementing the
President's decision to bar the return of former President
Marcos and his family, acted and would be acting without
jurisdiction, or in excess of jurisdiction, or with grave abuse of
discretion, in performing any act which would effectively bar the
return of former President Marcos and his family to the
Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp.
234-236.1
The case for petitioners is founded on the assertion that the
right of the Marcoses to return to the Philippines is guaranteed
under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be
denied the equal protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within
the limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety,
or public health, as may be provided by law.
The petitioners contend that the President is without power to
impair the liberty of abode of the Marcoses because only a court
may do so "within the limits prescribed by law." Nor may the
President impair their right to travel because no law has
authorized her to do so. They advance the view that before the
right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.
The petitioners further assert that under international law, the
right of Mr. Marcos and his family to return to the Philippines is
guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement
and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his
own, and to return to his country.
Likewise, the International Covenant on Civil and Political Rights,
which had been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall,
within that territory, have the right to liberty of movement and
freedom to choose his residence.
2) Everyone shall be free to leave any country, including
his own.
3) The above-mentioned rights shall not be subject to any
restrictions except those which are provided by law, are
necessary to protect national security, public order (order
public), public health or morals or the rights and freedoms of
others, and are consistent with the other rights recognized in the
present Covenant.
4) No one shall be arbitrarily deprived of the right to enter
his own country.
On the other hand, the respondents' principal argument is that
the issue in this case involves a political question which is non-
justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether
or not petitioners Ferdinand E. Marcos and his family have the
right to travel and liberty of abode. Petitioners invoke these
constitutional rights in vacuo without reference to attendant
circumstances.
Respondents submit that in its proper formulation, the issue is
whether or not petitioners Ferdinand E. Marcos and family have
the right to return to the Philippines and reside here at this time
in the face of the determination by the President that such
return and residence will endanger national security and public
safety.
It may be conceded that as formulated by petitioners, the
question is not a political question as it involves merely a
determination of what the law provides on the matter and
application thereof to petitioners Ferdinand E. Marcos and
family. But when the question is whether the two rights claimed
by petitioners Ferdinand E. Marcos and family impinge on or
collide with the more primordial and transcendental right of the
State to security and safety of its nationals, the question
becomes political and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to
return to the Philippines and reestablish their residence here?
This is clearly a justiciable question which this Honorable Court
can decide.
Do petitioners Ferdinand E. Marcos and family have their right to
return to the Philippines and reestablish their residence here
even if their return and residence here will endanger national
security and public safety? this is still a justiciable question
which this Honorable Court can decide.
Is there danger to national security and public safety if
petitioners Ferdinand E. Marcos and family shall return to the
Philippines and establish their residence here? This is now a
political question which this Honorable Court can not decide for
it falls within the exclusive authority and competence of the
President of the Philippines. [Memorandum for Respondents,
pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to
national security over individual rights. In support thereof, they
cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve
and protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law, to
render personal, military, or civil service.
Section 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 enjoyment by all the
people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos
and family from returning to the Philippines for reasons of
national security and public safety has international precedents.
Rafael Trujillo of the Dominican Republic, Anastacio Somoza Jr.
of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of
Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of
El Salvador, and Marcos Perez Jimenez of Venezuela were
among the deposed dictators whose return to their homelands
was prevented by their governments. [See Statement of Foreign
Affairs Secretary Raul S. Manglapus, quoted in Memorandum for
Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of
the scope of presidential power and its limits. We, however,
view this issue in a different light. Although we give due weight
to the parties' formulation of the issues, we are not bound by its
narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the
case within the confines of the right to travel and the import of
the decisions of the U.S. Supreme Court in the leading cases of
Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and
Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which
affirmed the right to travel and recognized exceptions to the
exercise thereof, respectively.
It must be emphasized that the individual right involved is not
the right to travel from the Philippines to other countries or
within the Philippines. These are what the right to travel would
normally connote. Essentially, the right involved is the right to
return to one's country, a totally distinct right under
international law, independent from although related to the
right to travel. Thus, the Universal Declaration of Humans Rights
and the International Covenant on Civil and Political Rights treat
the right to freedom of movement and abode within the
territory of a state, the right to leave a country, and the right to
enter one's country as separate and distinct rights. The
Declaration speaks of the "right to freedom of movement and
residence within the borders of each state" [Art. 13(l)]
separately from the "right to leave any country, including his
own, and to return to his country." [Art. 13(2).] On the other
hand, the Covenant guarantees the "right to liberty of
movement and freedom to choose his residence" [Art. 12(l)] and
the right to "be free to leave any country, including his own."
[Art. 12(2)] which rights may be restricted by such laws as "are
necessary to protect national security, public order, public
health or morals or enter qqqs own country" of which one
cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore
be inappropriate to construe the limitations to the right to
return to one's country in the same context as those pertaining
to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights
specifically guaranteed in the Bill of Rights, which treats only of
the liberty of abode and the right to travel, but it is our well-
considered view that the right to return may be considered, as
a generally accepted principle of international law and, under
our Constitution, is part of the law of the land [Art. II, Sec. 2 of
the Constitution.] However, it is distinct and separate from the
right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e., against
being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the
issuance of passports for the purpose of effectively exercising
the right to travel are not determinative of this case and are only
tangentially material insofar as they relate to a conflict between
executive action and the exercise of a protected right. The issue
before the Court is novel and without precedent in Philippine,
and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue
of whether or not there can be limitations on the right to travel
in the absence of legislation to that effect is rendered
unnecessary. An appropriate case for its resolution will have to
be awaited.
Having clarified the substance of the legal issue, we find now a
need to explain the methodology for its resolution. Our
resolution of the issue will involve a two-tiered approach. We
shall first resolve whether or not the President has the power
under the Constitution, to bar the Marcoses from returning to
the Philippines. Then, we shall determine, pursuant to the
express power of the Court under the Constitution in Article VIII,
Section 1, whether or not the President acted arbitrarily or with
grave abuse of discretion amounting to lack or excess of
jurisdiction when she determined that the return of the
Marcose's to the Philippines poses a serious threat to national
interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of
powers of the three great branches of government. To recall the
words of Justice Laurel in Angara v. Electoral Commission [63
Phil. 139 (1936)], "the Constitution has blocked but with deft
strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the government."
[At 157.1 Thus, the 1987 Constitution explicitly provides that
"[the legislative power shall be vested in the Congress of the
Philippines" Art VI, Sec. 11, "[t]he executive power shall
bevested in the President of the Philippines" [Art. VII, Sec. 11,
and "[te judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law" [Art. VIII, Sec.
1.] These provisions not only establish a separation of powers by
actual division [Angara v. Electoral Commission, supra] but also
confer plenary legislative, executive and judicial powers subject
only to limitations provided in the Constitution. For as the
Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)]
pointed out "a grant of the legislative power means a grant of all
legislative power; and a grant of the judicial power means a
grant of all the judicial power which may be exercised under the
government." [At 631-632.1 If this can be said of the legislative
power which is exercised by two chambers with a combined
membership of more than two hundred members and of the
judicial power which is vested in a hierarchy of courts, it can
equally be said of the executive power which is vested in one
official the President.
As stated above, the Constitution provides that "[t]he executive
power shall be vested in the President of the Philippines." [Art.
VII, Sec. 1]. However, it does not define what is meant by
executive power" although in the same article it touches on the
exercise of certain powers by the President, i.e., the power of
control over all executive departments, bureaus and offices, the
power to execute the laws, the appointing power, the powers
under the commander-in-chief clause, the power to grant
reprieves, commutations and pardons, the power to grant
amnesty with the concurrence of Congress, the power to
contract or guarantee foreign loans, the power to enter into
treaties or international agreements, the power to submit the
budget to Congress, and the power to address Congress [Art. VII,
Sec. 14-23].
The inevitable question then arises: by enumerating certain
powers of the President did the framers of the Constitution
intend that the President shall exercise those specific powers
and no other? Are these se enumerated powers the breadth and
scope of "executive power"? Petitioners advance the view that
the President's powers are limited to those specifically
enumerated in the 1987 Constitution. Thus, they assert: "The
President has enumerated powers, and what is not
enumerated is impliedly denied to her. Inclusion unius est
exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p.
233.1 This argument brings to mind the institution of the U.S.
Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the
United States grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution.
To those who think that a constitution ought to settle everything
beforehand it should be a nightmare; by the same token, to
those who think that constitution makers ought to leave
considerable leeway for the future play of political forces, it
should be a vision realized.
We encounter this characteristic of Article 11 in its opening
words: "The executive power shall be vested in a President of
the United States of America." . . .. [The President: Office and
Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised
by the different persons who held the office from Washington to
the early 1900's, and the swing from the presidency by
commission to Lincoln's dictatorship, he concluded that "what
the presidency is at any particular moment depends in
important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial
Presidency:
For the American Presidency was a peculiarly personal
institution. it remained of course, an agency of government
subject to unvarying demands and duties no remained, of cas
President. But, more than most agencies of government, it
changed shape, intensity and ethos according to the man in
charge. Each President's distinctive temperament and character,
his values, standards, style, his habits, expectations,
Idiosyncrasies, compulsions, phobias recast the WhiteHouse and
pervaded the entire government. The executive branch, said
Clark Clifford, was a chameleon, taking its color from the
character and personality of the President. The thrust of the
office, its impact on the constitutional order, therefore altered
from President to President. Above all, the way each President
understood it as his personal obligation to inform and involve
the Congress, to earn and hold the confidence of the electorate
and to render an accounting to the nation and posterity
determined whether he strengthened or weakened the
constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is
or what she does but, rather, that the consideration of tradition
and the development of presidential power under the different
constitutions are essential for a complete understanding of the
extent of and limitations to the President's powers under the
1987 Constitution. The 1935 Constitution created a strong
President with explicitly broader powers than the U.S. President.
The 1973 Constitution attempted to modify the system of
government into the parliamentary type, with the President as a
mere figurehead, but through numerous amendments, the
President became even more powerful, to the point that he was
also the de facto Legislature. The 1987 Constitution, however,
brought back the presidential system of government and
restored the separation of legislative, executive and judicial
powers by their actual distribution among three distinct
branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive
power" is the power to enforce the laws, for the President is
head of state as well as head of government and whatever
powers inhere in such positions pertain to the office unless the
Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the
powers of the President. It also grants the President other
powers that do not involve the execution of any provision of law,
e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific
powers of the President, it maintains intact what is traditionally
considered as within the scope of "executive power." Corollarily,
the powers of the President cannot be said to be limited only to
the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers
so enumerated,
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be
executive. Thus, in the landmark decision of Springer v.
Government of the Philippine Islands, 277 U.S. 189 (1928), on
the issue of who between the Governor-General of the
Philippines and the Legislature may vote the shares of stock held
by the Government to elect directors in the National Coal
Company and the Philippine National Bank, the U.S. Supreme
Court, in upholding the power of the Governor-General to do so,
said:
...Here the members of the legislature who constitute a majority
of the "board" and "committee" respectively, are not charged
with the performance of any legislative functions or with the
doing of anything which is in aid of performance of any such
functions by the legislature. Putting aside for the moment the
question whether the duties devolved upon these members are
vested by the Organic Act in the Governor-General, it is clear
that they are not legislative in character, and still more clear that
they are not judicial. The fact that they do not fall within the
authority of either of these two constitutes logical ground for
concluding that they do fall within that of the remaining one
among which the powers of government are divided ....[At 202-
203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in
his enduring words of dissent we find reinforcement for the view
that it would indeed be a folly to construe the powers of a
branch of government to embrace only what are specifically
mentioned in the Constitution:
The great ordinances of the Constitution do not establish and
divide fields of black and white. Even the more specific of them
are found to terminate in a penumbra shading gradually from
one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we
may disguise it by veiling words we do not and cannot carry out
the distinction between legislative and executive action with
mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far
from believing that it is, or that the Constitution requires. [At
210- 211.]
The Power Involved
The Constitution declares among the guiding principles that
"[t]he prime duty of theGovernment is to serve and protect the
people" and that "[t]he maintenance of peace and order,the
protection of life, liberty, and property, and the promotion of
the general welfare are essential for the enjoyment by all the
people of the blessings of democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the
maintenance of peace and order, the protection of life, liberty
and property, and the promotion of the general welfare are
essentially ideals to guide governmental action. But such does
not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in
directing implementing action for these plans, or from another
point of view, in making any decision as President of the
Republic, the President has to consider these principles, among
other things, and adhere to them.
Faced with the problem of whether or not the time is right to
allow the Marcoses to return to the Philippines, the President
is, under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having
sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the
people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside
from being an allocation of power is also a social contract
whereby the people have surrendered their sovereign powers
to the State for the common good. Hence, lest the officers of
the Government exercising the powers delegated by the
people forget and the servants of the people become rulers,
the Constitution reminds everyone that "[s]overeignty resides
in the people and all government authority emanates from
them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the
persons who seek to return to the country are the deposed
dictator and his family at whose door the travails of the country
are laid and from whom billions of dollars believed to be ill-
gotten wealth are sought to be recovered. The constitutional
guarantees they invoke are neither absolute nor inflexible. For
the exercise of even the preferred freedoms of speech and
ofexpression, although couched in absolute terms, admits of
limits and must be adjusted to the requirements of equally
important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general
welfare and the common good against the exercise of rights of
certain individuals. The power involved is the President's
residual power to protect the general welfare of the people. It is
founded on the duty of the President, as steward of the people.
To paraphrase Theodore Roosevelt, it is not only the power of
the President but also his duty to do anything not forbidden by
the Constitution or the laws that the needs of the nation
demand [See Corwin, supra, at 153]. It is a power borne by the
President's duty to preserve and defend the Constitution. It also
may be viewed as a power implicit in the President's duty to take
care that the laws are faithfully executed [see Hyman, The
American President, where the author advances the view that an
allowance of discretionary power is unavoidable in any
government and is best lodged in the President].
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.
That the President has the power under the Constitution to bar
the Marcose's from returning has been recognized by
memembers of the Legislature, and is manifested by the
Resolution proposed in the House of Representatives and
signed by 103 of its members urging the President to allow Mr.
Marcos to return to the Philippines "as a genuine unselfish
gesture for true national reconciliation and as irrevocable proof
of our collective adherence to uncompromising respect for
human rights under the Constitution and our laws." [House
Resolution No. 1342, Rollo, p. 321.1 The Resolution does not
question the President's power to bar the Marcoses from
returning to the Philippines, rather, it appeals to the
President's sense of compassion to allow a man to come home
to die in his country.
What we are saying in effect is that the request or demand of
the Marcoses to be allowed to return to the Philippines cannot
be considered in the light solely of the constitutional provisions
guaranteeing liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the present
one. It must be treated as a matter that is appropriately
addressed to those residual unstated powers of the President
which are implicit in and correlative to the paramount duty
residing in that office to safeguard and protect general welfare.
In that context, such request or demand should submit to the
exercise of a broader discretion on the part of the President to
determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty 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." [Art. VIII,
Sec. 1] Given this wording, we cannot agree with the Solicitor
General that the issue constitutes a political question which is
beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas
which the Court, under previous constitutions, would have
normally left to the political departments to decide. But
nonetheless there remain issues beyond the Court's jurisdiction
the determination of which is exclusively for the President, for
Congress or for the people themselves through a plebiscite or
referendum. We cannot, for example, question the President's
recognition of a foreign government, no matter how premature
or improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the
beneficiary is totally undeserving of the grant. Nor can we
amend the Constitution under the guise of resolving a dispute
brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our
determination thereof on the political question doctrine. The
deliberations of the Constitutional Commission cited by
petitioners show that the framers intended to widen the scope
of judicial review but they did not intend courts of justice to
settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination
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. If grave abuse is not
established, the Court will not substitute its judgment for that of
the official concerned and decide a matter which by its nature or
by law is for the latter alone to decide. In this light, it would
appear clear that the second paragraph of Article VIII, Section 1
of the Constitution, defining "judicial power," which specifically
empowers the courts to determine whether or not there has
been a grave abuse of discretion on the part of any branch or
instrumentality of the government, incorporates in the
fundamental law the ruling in Lansang v. Garcia [G.R. No. L-
33964, December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the
power to suspend the privilege of the writ of habeas corpus
under specified conditions. Pursuant to the principle of
separation of powers underlying our system of government, the
Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute.
What is more, it goes hand in hand with the system of checks
and balances, under which the Executive is supreme, as regards
the suspension of the privilege, but only if and when he acts
within the sphere alloted 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. In the exercise of such authority, the
function of the Court is merely to check — not to supplant the
Executive, or to ascertain merely whether he 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 [At
479-480.]
Accordingly, the question for the Court to determine is whether
or not there exist factual bases for the President to conclude
that it was in the national interest to bar the return of the
Marcoses to the Philippines. If such postulates do exist, it cannot
be said that she has acted, or acts, arbitrarily or that she has
gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their
oral arguments, and the facts revealed during the briefing in
chambers by the Chief of Staff of the Armed Forces of the
Philippines and the National Security Adviser, wherein
petitioners and respondents were represented, there exist
factual bases for the President's decision..
The Court cannot close its eyes to present realities and pretend
that the country is not besieged from within by a well-organized
communist insurgency, a separatist movement in Mindanao,
rightist conspiracies to grab power, urban terrorism, the murder
with impunity of military men, police officers and civilian
officials, to mention only a few. The documented history of the
efforts of the Marcose's and their followers to destabilize the
country, as earlier narrated in this ponencia bolsters the
conclusion that the return of the Marcoses at this time would
only exacerbate and intensify the violence directed against the
State and instigate more chaos.
As divergent and discordant forces, the enemies of the State
may be contained. The military establishment has given
assurances that it could handle the threats posed by particular
groups. But it is the catalytic effect of the return of the Marcoses
that may prove to be the proverbial final straw that would break
the camel's back. With these before her, the President cannot be
said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious
threat to the national interest and welfare and in prohibiting
their return.
It will not do to argue that if the return of the Marcoses to the
Philippines will cause the escalation of violence against the
State, that would be the time for the President to step in and
exercise the commander-in-chief powers granted her by the
Constitution to suppress or stamp out such violence. The State,
acting through the Government, is not precluded from taking
pre- emptive action against threats to its existence if, though still
nascent they are perceived as apt to become serious and direct.
Protection of the people is the essence of the duty of
government. The preservation of the State the fruition of the
people's sovereignty is an obligation in the highest order. The
President, sworn to preserve and defend the Constitution and to
see the faithful execution the laws, cannot shirk from that
responsibility.
We cannot also lose sight of the fact that the country is only now
beginning to recover from the hardships brought about by the
plunder of the economy attributed to the Marcoses and their
close associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the
Marcoses in foreign jurisdictions. Then, We cannot ignore the
continually increasing burden imposed on the economy by the
excessive foreign borrowing during the Marcos regime, which
stifles and stagnates development and is one of the root causes
of widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is
easily within the ambit of judicial notice.

The President has determined that the destabilization caused by

the return of the Marcoses would wipe away the gains achieved
during the past few years and lead to total economic collapse.
Given what is within our individual and common knowledge of
the state of the economy, we cannot argue with that
determination.

WHEREFORE, and it being our well-considered opinion 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
poses a serious threat to national interest and welfare and in
prohibiting their return to the Philippines, the instant petition is
hereby DISMISSED.

SO ORDERED.

G.R. No. 88211 October 27, 1989 178 SCRA 760
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...
 decision to bar the return of the Marcoses and subsequently, the
In Myers v. United States, the Supreme Court — accepted remains of Mr. Marcos at the present time and under present
Hamilton's proposition, concluding that the federal executive, circumstances is in compliance with this bounden duty. In the
unlike the Congress, could exercise power from sources not absence of a clear showing that she had acted with arbitrariness
enumerated, so long as not forbidden by the constitutional text: or with grave abuse of discretion in arriving at this decision, the
the executive power was given in general terms, strengthened Court will not enjoin the implementation of this decision.
by specific terms where emphasis was regarded as appropriate,
and was limited by direct expressions where limitation was ACCORDINGLY, the Court resolved to DENY the Motion for
needed. . ." The language of Chief Justice Taft in Myers makes Reconsideration for lack of merit."
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

G.R. No. 169777* April 20, 2006
SENATE OF THE PHILIPPINES, represented by FRANKLIN M.
DRILON, in his capacity as Senate President, JUAN M. FLAVIER,
in his capacity as Senate President Pro Tempore, FRANCIS N.
PANGILINAN, in his capacity as Majority Leader, AQUILINO Q.
PIMENTEL, JR., in his capacity as Minority Leader, SENATORS
RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO,
JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA,
JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M.
LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA
III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and
alter-ego of President Gloria Macapagal-Arroyo, and anyone
acting in his stead and in behalf of the President of the
Philippines, Respondents.
x-------------------------x
G.R. No. 169659 April 20, 2006
BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep.
SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL
MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL
VIRADOR, COURAGE represented by FERDINAND GAITE, and
COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL)
represented by ATTY. REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and
alter-ego of President Gloria Macapagal-Arroyo, Respondent.
x-------------------------x
G.R. No. 169660 April 20, 2006
FRANCISCO I. CHAVEZ, Petitioner,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary,
AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense,
and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff,
Respondents.
x-------------------------x
G.R. No. 169667 April 20, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive
Secretary, Respondent.
x-------------------------x
G.R. No. 169834 April 20, 2006
PDP- LABAN, Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x-------------------------x
G.R. No. 171246 April 20, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL,
FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the
INTEGRATED BAR FOR THE PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA,
Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly
republican state. Even in the early history of republican thought,
however, it has been recognized that the head of government
may keep certain information confidential in pursuit of the
public interest. Explaining the reason for vesting executive
power in only one magistrate, a distinguished delegate to the
U.S. Constitutional Convention said: "Decision, activity, secrecy,
and dispatch will generally characterize the proceedings of one
man, in a much more eminent degree than the proceedings of
any greater number; and in proportion as the number is
increased, these qualities will be diminished."1
History has been witness, however, to the fact that the power to
withhold information lends itself to abuse, hence, the necessity
to guard it zealously.
The present consolidated petitions for certiorari and
prohibition proffer that the President has abused such power
by issuing Executive Order No. 464 (E.O. 464) last September
28, 2005. They thus pray for its declaration as null and void for
being unconstitutional.
In resolving the controversy, this Court shall proceed with the
recognition that the issuance under review has come from a co-
equal branch of government, which thus entitles it to a strong
presumption of constitutionality. Once the challenged order is
found to be indeed violative of the Constitution, it is duty-bound
to declare it so. For the Constitution, being the highest
expression of the sovereign will of the Filipino people, must
prevail over any issuance of the government that contravenes its
mandates.
In the exercise of its legislative power, the Senate of the
Philippines, through its various Senate Committees, conducts
inquiries or investigations in aid of legislation which call for,
inter alia, the attendance of officials and employees of the
executive department, bureaus, and offices including those
employed in Government Owned and Controlled Corporations,
the Armed Forces of the Philippines (AFP), and the Philippine
National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a
whole issued invitations to various officials of the Executive
Department for them to appear on September 29, 2005 as
resource speakers in a public hearing on the railway project of
the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail
Project). The public hearing was sparked by a privilege speech
of Senator Juan Ponce Enrile urging the Senate to investigate
the alleged overpricing and other unlawful provisions of the
contract covering the North Rail Project.
The Senate Committee on National Defense and Security
likewise issued invitations2 dated September 22, 2005 to the
following officials of the AFP: the Commanding General of the
Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector
General of the AFP Vice Admiral Mateo M. Mayuga; Deputy
Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R.
Danga; Chief of the Intelligence Service of the AFP Brig. Gen.
Marlu Q. Quevedo; Assistant Superintendent of the Philippine
Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and
Assistant Commandant, Corps of Cadets of the PMA, Col.
Alexander F. Balutan, for them to attend as resource persons in
a public hearing scheduled on September 28, 2005 on the
following: (1) Privilege Speech of Senator Aquilino Q. Pimentel
Jr., delivered on June 6, 2005 entitled "Bunye has Provided
Smoking Gun or has Opened a Can of Worms that Show Massive
Electoral Fraud in the Presidential Election of May 2005"; (2)
Privilege Speech of Senator Jinggoy E. Estrada delivered on July
26, 2005 entitled "The Philippines as the Wire-Tapping Capital of
the World"; (3) Privilege Speech of Senator Rodolfo Biazon
delivered on August 1, 2005 entitled "Clear and Present Danger";
(4) Senate Resolution No. 285 filed by Senator Maria Ana
Consuelo Madrigal – Resolution Directing the Committee on
National Defense and Security to Conduct an Inquiry, in Aid of
Legislation, and in the National Interest, on the Role of the
Military in the So-called "Gloriagate Scandal"; and (5) Senate
Resolution No. 295 filed by Senator Biazon – Resolution
Directing the Committee on National Defense and Security to
Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of
the President of the Philippines.
Also invited to the above-said hearing scheduled on September
28 2005 was the AFP Chief of Staff, General Generoso S. Senga
who, by letter3 dated September 27, 2005, requested for its
postponement "due to a pressing operational situation that
demands [his utmost personal attention" while "some of the
invited AFP officers are currently attending to other urgent
operational matters."
On September 28, 2005, Senate President Franklin M. Drilon
received from Executive Secretary Eduardo R. Ermita a letter4
dated September 27, 2005 "respectfully request[ing] for the
postponement of the hearing [regarding the NorthRail project]
to which various officials of the Executive Department have been
invited" in order to "afford said officials ample time and
opportunity to study and prepare for the various issues so that
they may better enlighten the Senate Committee on its
investigation."
Senate President Drilon, however, wrote5 Executive Secretary
Ermita that the Senators "are unable to accede to [his request]"
as it "was sent belatedly" and "[a]ll preparations and
arrangements as well as notices to all resource persons were
completed [the previous] week."
Senate President Drilon likewise received on September 28,
2005 a letter6 from the President of the North Luzon Railways
Corporation Jose L. Cortes, Jr. requesting that the hearing on the
NorthRail project be postponed or cancelled until a copy of the
report of the UP Law Center on the contract agreements relative
to the project had been secured.
On September 28, 2005, the President issued E.O. 464,
"Ensuring Observance of the Principle of Separation of Powers,
Adherence to the Rule on Executive Privilege and Respect for
the Rights of Public Officials Appearing in Legislative Inquiries
in Aid of Legislation Under the Constitution, and For Other
Purposes,"7 which, pursuant to Section 6 thereof, took effect
immediately. The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before
Congress. – In accordance with Article VI, Section 22 of the
Constitution and to implement the Constitutional provisions on
the separation of powers between co-equal branches of the
government, all heads of departments of the Executive Branch
of the government shall secure the consent of the President
prior to appearing before either House of Congress.
When the security of the State or the public interest so requires
and the President so states in writing, the appearance shall only
be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
(a) Nature and Scope. - The rule of confidentiality based on
executive privilege is fundamental to the operation of
government and rooted in the separation of powers under the
Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995). Further, Republic Act No. 6713 or the Code of Conduct
and Ethical Standards for Public Officials and Employees provides
that Public Officials and Employees shall not use or divulge
confidential or classified information officially known to them by
reason of their office and not made available to the public to
prejudice the public interest.
Executive privilege covers all confidential or classified
information between the President and the public officers
covered by this executive order, including:
Conversations and correspondence between the President and
the public official covered by this executive order (Almonte vs.
Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters which in
the interest of national security should not be divulged (Almonte
vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9
December 1998).
Information between inter-government agencies prior to the
conclusion of treaties and executive agreements (Chavez v.
Presidential Commission on Good Government, G.R. No. 130716,
9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v.
Presidential Commission on Good Government, G.R. No. 130716,
9 December 1998);
Matters affecting national security and public order (Chavez v.
Public Estates Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. – The following are covered by this
executive order:
Senior officials of executive departments who in the judgment of
the department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines
and such other officers who in the judgment of the Chief of Staff
are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief
superintendent or higher and such other officers who in the
judgment of the Chief of the PNP are covered by the executive
privilege;
Senior national security officials who in the judgment of the
National Security Adviser are covered by the executive privilege;
and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before
Congress. – All public officials enumerated in Section 2 (b) hereof
shall secure prior consent of the President prior to appearing
before either House of Congress to ensure the observance of the
principle of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public officials
appearing in inquiries in aid of legislation. (Emphasis and
underscoring supplied)
Also on September 28, 2005, Senate President Drilon received
from Executive Secretary Ermita a copy of E.O. 464, and another
letter8 informing him "that officials of the Executive Department
invited to appear at the meeting [regarding the NorthRail
project] will not be able to attend the same without the consent
of the President, pursuant to [E.O. 464]" and that "said officials
have not secured the required consent from the President." On
even date which was also the scheduled date of the hearing on
the alleged wiretapping, Gen. Senga sent a letter9 to Senator
Biazon, Chairperson of the Committee on National Defense and
Security, informing him "that per instruction of [President
Arroyo], thru the Secretary of National Defense, no officer of the
[AFP] is authorized to appear before any Senate or Congressional
hearings without seeking a written approval from the President"
and "that no approval has been granted by the President to any
AFP officer to appear before the public hearing of the Senate
Committee on National Defense and Security scheduled [on] 28
September 2005."
Despite the communications received from Executive Secretary
Ermita and Gen. Senga, the investigation scheduled by the
Committee on National Defense and Security pushed through,
with only Col. Balutan and Brig. Gen. Gudani among all the AFP
officials invited attending.
For defying President Arroyo’s order barring military personnel
from testifying before legislative inquiries without her approval,
Brig. Gen. Gudani and Col. Balutan were relieved from their
military posts and were made to face court martial proceedings.
As to the NorthRail project hearing scheduled on September 29,
2005, Executive Secretary Ermita, citing E.O. 464, sent letter of
regrets, in response to the invitations sent to the following
government officials: Light Railway Transit Authority
Administrator Melquiades Robles, Metro Rail Transit Authority
Administrator Roberto Lastimoso, Department of Justice (DOJ)
Chief State Counsel Ricardo V. Perez, then Presidential Legal
Counsel Merceditas Gutierrez, Department of Transportation
and Communication (DOTC) Undersecretary Guiling Mamonding,
DOTC Secretary Leandro Mendoza, Philippine National Railways
General Manager Jose Serase II, Monetary Board Member
Juanita Amatong, Bases Conversion Development Authority
Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.10
NorthRail President Cortes sent personal regrets likewise citing
E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos.
169659, 169660, and 169667, for certiorari and prohibition,
were filed before this Court challenging the constitutionality of
E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of
Representatives Members Satur Ocampo, Crispin Beltran, Rafael
Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage,
an organization of government employees, and Counsels for the
Defense of Liberties (CODAL), a group of lawyers dedicated to
the promotion of justice, democracy and peace, all claiming to
have standing to file the suit because of the transcendental
importance of the issues they posed, pray, in their petition that
E.O. 464 be declared null and void for being unconstitutional;
that respondent Executive Secretary Ermita, in his capacity as
Executive Secretary and alter-ego of President Arroyo, be
prohibited from imposing, and threatening to impose sanctions
on officials who appear before Congress due to congressional
summons. Additionally, petitioners claim that E.O. 464 infringes
on their rights and impedes them from fulfilling their respective
obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on
its right as a political party entitled to participate in governance;
Satur Ocampo, et al. allege that E.O. 464 infringes on their rights
and duties as members of Congress to conduct investigation in
aid of legislation and conduct oversight functions in the
implementation of laws; Courage alleges that the tenure of its
members in public office is predicated on, and threatened by,
their submission to the requirements of E.O. 464 should they be
summoned by Congress; and CODAL alleges that its members
have a sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are threatened by
the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that
his constitutional rights as a citizen, taxpayer and law
practitioner, are affected by the enforcement of E.O. 464, prays
in his petition that E.O. 464 be declared null and void for being
unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12
(ALG), alleging that as a coalition of 17 legal resource non-
governmental organizations engaged in developmental
lawyering and work with the poor and marginalized sectors in
different parts of the country, and as an organization of citizens
of the Philippines and a part of the general public, it has legal
standing to institute the petition to enforce its constitutional
right to information on matters of public concern, a right which
was denied to the public by E.O. 464,13 prays, that said order be
declared null and void for being unconstitutional and that
respondent Executive Secretary Ermita be ordered to cease from
implementing it.
On October 11, 2005, Petitioner Senate of the Philippines,
alleging that it has a vital interest in the resolution of the issue of
the validity of E.O. 464 for it stands to suffer imminent and
material injury, as it has already sustained the same with its
continued enforcement since it directly interferes with and
impedes the valid exercise of the Senate’s powers and functions
and conceals information of great public interest and concern,
filed its petition for certiorari and prohibition, docketed as G.R.
No. 169777 and prays that E.O. 464 be declared
unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party
with members duly elected into the Philippine Senate and House
of Representatives, filed a similar petition for certiorari and
prohibition, docketed as G.R. No. 169834, alleging that it is
affected by the challenged E.O. 464 because it hampers its
legislative agenda to be implemented through its members in
Congress, particularly in the conduct of inquiries in aid of
legislation and transcendental issues need to be resolved to
avert a constitutional crisis between the executive and
legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon
reiterated his invitation to Gen. Senga for him and other military
officers to attend the hearing on the alleged wiretapping
scheduled on February 10, 2005. Gen. Senga replied, however,
by letter15 dated February 8, 2006, that "[p]ursuant to Executive
Order No. 464, th[e] Headquarters requested for a clearance
from the President to allow [them] to appear before the public
hearing" and that "they will attend once [their] request is
approved by the President." As none of those invited appeared,
the hearing on February 10, 2006 was cancelled.16
In another investigation conducted jointly by the Senate
Committee on Agriculture and Food and the Blue Ribbon
Committee on the alleged mismanagement and use of the
fertilizer fund under the Ginintuang Masaganang Ani program of
the Department of Agriculture (DA), several Cabinet officials
were invited to the hearings scheduled on October 5 and 26,
November 24 and December 12, 2005 but most of them failed to
attend, DA Undersecretary Belinda Gonzales, DA Assistant
Secretary Felix Jose Montes, Fertilizer and Pesticide Authority
Executive Director Norlito R. Gicana,17 and those from the
Department of Budget and Management18 having invoked E.O.
464.
In the budget hearings set by the Senate on February 8 and 13,
2006, Press Secretary and Presidential Spokesperson Ignacio R.
Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of
Interior and Local Government Undersecretary Marius P.
Corpus21 communicated their inability to attend due to lack of
appropriate clearance from the President pursuant to E.O. 464.
During the February 13, 2005 budget hearing, however,
Secretary Bunye was allowed to attend by Executive Secretary
Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent
members of the Board of Governors of the Integrated Bar of the
Philippines, as taxpayers, and the Integrated Bar of the
Philippines as the official organization of all Philippine lawyers,
all invoking their constitutional right to be informed on matters
of public interest, filed their petition for certiorari and
prohibition, docketed as G.R. No. 171246, and pray that E.O. 464
be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining
Order enjoining respondents from implementing, enforcing, and
observing E.O. 464.
In the oral arguments on the petitions conducted on February
21, 2006, the following substantive issues were ventilated: (1)
whether respondents committed grave abuse of discretion in
implementing E.O. 464 prior to its publication in the Official
Gazette or in a newspaper of general circulation; and (2)
whether E.O. 464 violates the following provisions of the
Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV.
Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art.
XIII, Sec. 16. The procedural issue of whether there is an actual
case or controversy that calls for judicial review was not taken
up; instead, the parties were instructed to discuss it in their
respective memoranda.
After the conclusion of the oral arguments, the parties were
directed to submit their respective memoranda, paying
particular attention to the following propositions: (1) that E.O.
464 is, on its face, unconstitutional; and (2) assuming that it is
not, it is unconstitutional as applied in four instances, namely:
(a) the so called Fertilizer scam; (b) the NorthRail investigation
(c) the Wiretapping activity of the ISAFP; and (d) the
investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed
their memoranda on March 7, 2006, while those in G.R. No.
16966725 and G.R. No. 16983426 filed theirs the next day or on
March 8, 2006. Petitioners in G.R. No. 171246 did not file any
memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their
motion for extension to file memorandum27 was granted,
subsequently filed a manifestation28 dated March 14, 2006 that
it would no longer file its memorandum in the interest of having
the issues resolved soonest, prompting this Court to issue a
Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following
constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other
hand, pray in their consolidated memorandum38 on March 13,
2006 for the dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in
Congress;
2. Whether E.O. 464 violates the right of the people to
information on matters of public concern; and
3. Whether respondents have committed grave abuse of
discretion when they implemented E.O. 464 prior to its
publication in a newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
E.O. 464, ascertainment of whether the requisites for a valid
exercise of the Court’s power of judicial review are present is in
order.

Like almost all powers conferred by the Constitution, the power
of judicial review is subject to limitations, to wit: (1) there must
be an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have
standing to challenge the validity of the subject act or issuance;
otherwise stated, he must have a personal and substantial
interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and
(4) the issue of constitutionality must be the very lis mota of the
case.39
Except with respect to the requisites of standing and existence
of an actual case or controversy where the disagreement
between the parties lies, discussion of the rest of the requisites
shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the
allegations in G.R. Nos. 169659, 169660 and 169667 make it
clear that they, adverting to the non-appearance of several
officials of the executive department in the investigations called
by the different committees of the Senate, were brought to
vindicate the constitutional duty of the Senate or its different
committees to conduct inquiry in aid of legislation or in the
exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific
prerogative, power, and privilege of the House of
Representatives which had been effectively impaired by E.O.
464, there being no mention of any investigation called by the
House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.
As for Bayan Muna’s alleged interest as a party-list representing
the marginalized and underrepresented, and that of the other
petitioner groups and individuals who profess to have standing
as advocates and defenders of the Constitution, respondents
contend that such interest falls short of that required to confer
standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez
may not claim an interest as a taxpayer for the implementation
of E.O. 464 does not involve the exercise of taxing or spending
power.41
With regard to the petition filed by the Senate, respondents
argue that in the absence of a personal or direct injury by reason
of the issuance of E.O. 464, the Senate and its individual
members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Court’s ruling in National Economic Protectionism
Association v. Ongpin42 and Valmonte v. Philippine Charity
Sweepstakes Office,43 respondents assert that to be considered
a proper party, one must have a personal and substantial
interest in the case, such that he has sustained or will sustain
direct injury due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right
essential not only for intelligent public decision-making in a
democratic system, but more especially for sound legislation45
is not disputed. E.O. 464, however, allegedly stifles the ability of
the members of Congress to access information that is crucial to
law-making.46 Verily, the Senate, including its individual
members, has a substantial and direct interest over the outcome
of the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have standing to
maintain inviolate the prerogative, powers and privileges vested
by the Constitution in their office and are allowed to sue to
question the validity of any official action which they claim
infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan
Muna), Teodoro Casino (Bayan Muna), Joel Virador (Bayan
Muna), Crispin Beltran (Anakpawis), Rafael Mariano
(Anakpawis), and Liza Maza (Gabriela) are allowed to sue to
question the constitutionality of E.O. 464, the absence of any
claim that an investigation called by the House of
Representatives or any of its committees was aborted due to the
implementation of E.O. 464 notwithstanding, it being sufficient
that a claim is made that E.O. 464 infringes on their
constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight
functions in the implementation of laws.
The national political party, Bayan Muna, likewise meets the
standing requirement as it obtained three seats in the House of
Representatives in the 2004 elections and is, therefore, entitled
to participate in the legislative process consonant with the
declared policy underlying the party list system of affording
citizens belonging to marginalized and underrepresented
sectors, organizations and parties who lack well-defined political
constituencies to contribute to the formulation and enactment
of legislation that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the
standing to file their petitions, passing on the standing of their
co-petitioners Courage and Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims
to be an organization of citizens, and the incumbent members of
the IBP Board of Governors and the IBP in behalf of its lawyer
members,50 invoke their constitutional right to information on
matters of public concern, asserting that the right to
information, curtailed and violated by E.O. 464, is essential to
the effective exercise of other constitutional rights51 and to the
maintenance of the balance of power among the three branches
of the government through the principle of checks and
balances.52
It is well-settled that when suing as a citizen, the interest of the
petitioner in assailing the constitutionality of laws, presidential
decrees, orders, and other regulations, must be direct and
personal. In Franciso v. House of Representatives,53 this Court
held that when the proceeding involves the assertion of a public
right, the mere fact that he is a citizen satisfies the requirement
of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with
legal standing in view of the transcendental issues raised in its
petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the
ground of transcendental importance, however, it must establish
(1) the character of the funds (that it is public) or other assets
involved in the case, (2) the presence of a clear case of disregard
of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government, and
(3) the lack of any party with a more direct and specific interest
in raising the questions being raised.54 The first and last
determinants not being present as no public funds or assets are
involved and petitioners in G.R. Nos. 169777 and 169659 have
direct and specific interests in the resolution of the controversy,
petitioner PDP-Laban is bereft of standing to file its petition. Its
allegation that E.O. 464 hampers its legislative agenda is vague
and uncertain, and at best is only a "generalized interest" which
it shares with the rest of the political parties. Concrete injury,
whether actual or threatened, is that indispensable element of a
dispute which serves in part to cast it in a form traditionally
capable of judicial resolution.55 In fine, PDP-Laban’s alleged
interest as a political party does not suffice to clothe it with legal
standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the
absence of the executive officials invited by the Senate to its
hearings after the issuance of E.O. 464, particularly those on the
NorthRail project and the wiretapping controversy.
Respondents counter that there is no case or controversy, there
being no showing that President Arroyo has actually withheld
her consent or prohibited the appearance of the invited
officials.56 These officials, they claim, merely communicated to
the Senate that they have not yet secured the consent of the
President, not that the President prohibited their attendance.57
Specifically with regard to the AFP officers who did not attend
the hearing on September 28, 2005, respondents claim that the
instruction not to attend without the President’s consent was
based on its role as Commander-in-Chief of the Armed Forces,
not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an
unfounded apprehension that the President will abuse its power
of preventing the appearance of officials before Congress, and
that such apprehension is not sufficient for challenging the
validity of E.O. 464.
The Court finds respondents’ assertion that the President has
not withheld her consent or prohibited the appearance of the
officials concerned immaterial in determining the existence of an
actual case or controversy insofar as E.O. 464 is concerned. For
E.O. 464 does not require either a deliberate withholding of
consent or an express prohibition issuing from the President in
order to bar officials from appearing before Congress.
As the implementation of the challenged order has already
resulted in the absence of officials invited to the hearings of
petitioner Senate of the Philippines, it would make no sense to
wait for any further event before considering the present case
ripe for adjudication. Indeed, it would be sheer abandonment of
duty if this Court would now refrain from passing on the
constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive
officials before Congress, deprives Congress of the information
in the possession of these officials. To resolve the question of
whether such withholding of information violates the
Constitution, consideration of the general power of Congress to
obtain information, otherwise known as the power of inquiry, is
in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section
21 of Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any
of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the
1973 Constitution except that, in the latter, it vests the power of
inquiry in the unicameral legislature established therein – the
Batasang Pambansa – and its committees.
The 1935 Constitution did not contain a similar provision.
Nonetheless, in Arnault v. Nazareno,58 a case decided in 1950
under that Constitution, the Court already recognized that the
power of inquiry is inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly
anomalous purchase of the Buenavista and Tambobong Estates
by the Rural Progress Administration. Arnault, who was
considered a leading witness in the controversy, was called to
testify thereon by the Senate. On account of his refusal to
answer the questions of the senators on an important point, he
was, by resolution of the Senate, detained for contempt.
Upholding the Senate’s power to punish Arnault for contempt,
this Court held:
Although there is no provision in the Constitution expressly
investing either House of Congress with power to make
investigations and exact testimony to the end that it may
exercise its legislative functions advisedly and effectively, such
power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry – with process to
enforce it – is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change;
and where the legislative body does not itself possess the
requisite information – which is not infrequently true – recourse
must be had to others who do possess it. Experience has shown
that mere requests for such information are often unavailing,
and also that information which is volunteered is not always
accurate or complete; so some means of compulsion is essential
to obtain what is needed.59 . . . (Emphasis and underscoring
supplied)
That this power of inquiry is broad enough to cover officials of
the executive branch may be deduced from the same case. The
power of inquiry, the Court therein ruled, is co-extensive with
the power to legislate.60 The matters which may be a proper
subject of legislation and those which may be a proper subject of
investigation are one. It follows that the operation of
government, being a legitimate subject for legislation, is a
proper subject for investigation.
Thus, the Court found that the Senate investigation of the
government transaction involved in Arnault was a proper
exercise of the power of inquiry. Besides being related to the
expenditure of public funds of which Congress is the guardian,
the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is
within the power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of
the executive branch, it would be incongruous to hold that the
power of inquiry does not extend to executive officials who are
the most familiar with and informed on executive operations.
As discussed in Arnault, the power of inquiry, "with process to
enforce it," is grounded on the necessity of information in the
legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise
legislation on that subject, by parity of reasoning, Congress has
the right to that information and the power to compel the
disclosure thereof.
As evidenced by the American experience during the so-called
"McCarthy era," however, the right of Congress to conduct
inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected
to judicial review pursuant to the Court’s certiorari powers
under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon
Committee,61 the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of
Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such a
result as occurred in Bengzon is to indicate in its invitations to
the public officials concerned, or to any person for that matter,
the possible needed statute which prompted the need for the
inquiry. Given such statement in its invitations, along with the
usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room
for speculation on the part of the person invited on whether the
inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that
proscribe the legislative power of inquiry. The provision requires
that the inquiry be done in accordance with the Senate or
House’s duly published rules of procedure, necessarily implying
the constitutional infirmity of an inquiry conducted without duly
published rules of procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such inquiries be
respected, an imposition that obligates Congress to adhere to
the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon
the proper suit filed by the persons affected, even if they belong
to the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a
clear pattern of abuse of the legislative power of inquiry might
be established, resulting in palpable violations of the rights
guaranteed to members of the executive department under the
Bill of Rights. In such instances, depending on the particulars of
each case, attempts by the Executive Branch to forestall these
abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still
recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of "executive privilege." Since
this term figures prominently in the challenged order, it being
mentioned in its provisions, its preambular clauses,62 and in its
very title, a discussion of executive privilege is crucial for
determining the constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It
has been used even prior to the promulgation of the 1986
Constitution.63 Being of American origin, it is best understood in
light of how it has been defined and used in the legal literature
of the United States.
Schwartz defines executive privilege as "the power of the
Government to withhold information from the public, the
courts, and the Congress."64 Similarly, Rozell defines it as "the
right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately
the public."65
Executive privilege is, nonetheless, not a clear or unitary
concept. 66 It has encompassed claims of varying kinds.67 Tribe,
in fact, comments that while it is customary to employ the
phrase "executive privilege," it may be more accurate to speak
of executive privileges "since presidential refusals to furnish
information may be actuated by any of at least three distinct
kinds of considerations, and may be asserted, with differing
degrees of success, in the context of either judicial or legislative
investigations."
One variety of the privilege, Tribe explains, is the state secrets
privilege invoked by U.S. Presidents, beginning with Washington,
on the ground that the information is of such nature that its
disclosure would subvert crucial military or diplomatic
objectives. Another variety is the informer’s privilege, or the
privilege of the Government not to disclose the identity of
persons who furnish information of violations of law to officers
charged with the enforcement of that law. Finally, a generic
privilege for internal deliberations has been said to attach to
intragovernmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated. 68
Tribe’s comment is supported by the ruling in In re Sealed Case,
thus:
Since the beginnings of our nation, executive officials have
claimed a variety of privileges to resist disclosure of information
the confidentiality of which they felt was crucial to fulfillment of
the unique role and responsibilities of the executive branch of
our government. Courts ruled early that the executive had a
right to withhold documents that might reveal military or state
secrets. The courts have also granted the executive a right to
withhold the identity of government informers in some
circumstances and a qualified right to withhold information
related to pending investigations. x x x"69 (Emphasis and
underscoring supplied)
The entry in Black’s Law Dictionary on "executive privilege" is
similarly instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation
of powers, exempts the executive from disclosure requirements
applicable to the ordinary citizen or organization where such
exemption is necessary to the discharge of highly important
executive responsibilities involved in maintaining governmental
operations, and extends not only to military and diplomatic
secrets but also to documents integral to an appropriate
exercise of the executive’ domestic decisional and policy making
functions, that is, those documents reflecting the frank
expression necessary in intra-governmental advisory and
deliberative communications.70 (Emphasis and underscoring
supplied)

That a type of information is recognized as privileged does not,
however, necessarily mean that it would be considered
privileged in all instances. For in determining the validity of a
claim of privilege, the question that must be asked is not only
whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be
honored in a given procedural setting.71
The leading case on executive privilege in the United States is
U.S. v. Nixon, 72 decided in 1974. In issue in that case was the
validity of President Nixon’s claim of executive privilege against a
subpoena issued by a district court requiring the production of
certain tapes and documents relating to the Watergate
investigations. The claim of privilege was based on the
President’s general interest in the confidentiality of his
conversations and correspondence. The U.S. Court held that
while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally
based to the extent that it relates to the effective discharge of a
President’s powers. The Court, nonetheless, rejected the
President’s claim of privilege, ruling that the privilege must be
balanced against the public interest in the fair administration of
criminal justice. Notably, the Court was careful to clarify that it
was not there addressing the issue of claims of privilege in a civil
litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege
against Congress are rare.73 Despite frequent assertion of the
privilege to deny information to Congress, beginning with
President Washington’s refusal to turn over treaty negotiation
records to the House of Representatives, the U.S. Supreme Court
has never adjudicated the issue.74 However, the U.S. Court of
Appeals for the District of Columbia Circuit, in a case decided
earlier in the same year as Nixon, recognized the President’s
privilege over his conversations against a congressional
subpoena.75 Anticipating the balancing approach adopted by
the U.S. Supreme Court in Nixon, the Court of Appeals weighed
the public interest protected by the claim of privilege against the
interest that would be served by disclosure to the Committee.
Ruling that the balance favored the President, the Court declined
to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez.77 Almonte used
the term in reference to the same privilege subject of Nixon. It
quoted the following portion of the Nixon decision which
explains the basis for the privilege:
"The expectation of a President to the confidentiality of his
conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, has all the
values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore
alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying
a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the
Ombudsman against the therein petitioners. It did not involve,
as expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are
certain types of information which the government may
withhold from the public, thus acknowledging, in substance if
not in name, that executive privilege may be claimed against
citizens’ demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction
recognizes the common law holding that there is a
"governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other national
security matters."80 The same case held that closed-door
Cabinet meetings are also a recognized limitation on the right to
information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled
that the right to information does not extend to matters
recognized as "privileged information under the separation of
powers,"82 by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door
Cabinet meetings. It also held that information on military and
diplomatic secrets and those affecting national security, and
information on investigations of crimes by law enforcement
agencies before the prosecution of the accused were exempted
from the right to information.
From the above discussion on the meaning and scope of
executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is
recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional
concept, a claim thereof may be valid or not depending on the
ground invoked to justify it and the context in which it is made.
Noticeably absent is any recognition that executive officials are
exempt from the duty to disclose information by the mere fact
of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials
covered by them to secure the consent of the President prior to
appearing before Congress. There are significant differences
between the two provisions, however, which constrain this
Court to discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not,
unlike Section 3, require a prior determination by any official
whether they are covered by E.O. 464. The President herself has,
through the challenged order, made the determination that they
are. Further, unlike also Section 3, the coverage of department
heads under Section 1 is not made to depend on the department
heads’ possession of any information which might be covered by
executive privilege. In fact, in marked contrast to Section 3 vis-à-
vis Section 2, there is no reference to executive privilege at all.
Rather, the required prior consent under Section 1 is grounded
on Article VI, Section 22 of the Constitution on what has been
referred to as the question hour.
SECTION 22. The heads of departments may upon their own
initiative, with the consent of the President, or upon the request
of either House, as the rules of each House shall provide, appear
before and be heard by such House on any matter pertaining to
their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of
Representatives at least three days before their scheduled
appearance. Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the
security of the State or the public interest so requires and the
President so states in writing, the appearance shall be conducted
in executive session.
Determining the validity of Section 1 thus requires an
examination of the meaning of Section 22 of Article VI. Section
22 which provides for the question hour must be interpreted vis-
à-vis Section 21 which provides for the power of either House of
Congress to "conduct inquiries in aid of legislation." As the
following excerpt of the deliberations of the Constitutional
Commission shows, the framers were aware that these two
provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now
Section 22 on the Question Hour] yesterday, I noticed that
members of the Cabinet cannot be compelled anymore to
appear before the House of Representatives or before the
Senate. I have a particular problem in this regard, Madam
President, because in our experience in the Regular Batasang
Pambansa – as the Gentleman himself has experienced in the
interim Batasang Pambansa – one of the most competent inputs
that we can put in our committee deliberations, either in aid of
legislation or in congressional investigations, is the testimonies
of Cabinet ministers. We usually invite them, but if they do not
come and it is a congressional investigation, we usually issue
subpoenas.
I want to be clarified on a statement made by Commissioner
Suarez when he said that the fact that the Cabinet ministers may
refuse to come to the House of Representatives or the Senate
[when requested under Section 22] does not mean that they
need not come when they are invited or subpoenaed by the
committee of either House when it comes to inquiries in aid of
legislation or congressional investigation. According to
Commissioner Suarez, that is allowed and their presence can be
had under Section 21. Does the gentleman confirm this, Madam
President?
MR. DAVIDE. We confirm that, Madam President, because
Section 20 refers only to what was originally the Question Hour,
whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be
summoned and if he refuses, he can be held in contempt of the
House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of
legislation and the question hour. While attendance was meant
to be discretionary in the question hour, it was compulsory in
inquiries in aid of legislation. The reference to Commissioner
Suarez bears noting, he being one of the proponents of the
amendment to make the appearance of department heads
discretionary in the question hour.
So clearly was this distinction conveyed to the members of the
Commission that the Committee on Style, precisely in
recognition of this distinction, later moved the provision on
question hour from its original position as Section 20 in the
original draft down to Section 31, far from the provision on
inquiries in aid of legislation. This gave rise to the following
exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the
Committee on Style] We now go, Mr. Presiding Officer, to the
Article on Legislative and may I request the chairperson of the
Legislative Department, Commissioner Davide, to give his
reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one
reaction to the Question Hour. I propose that instead of putting
it as Section 31, it should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr.
Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when
we sequenced this but we reasoned that in Section 21, which is
Legislative Inquiry, it is actually a power of Congress in terms of
its own lawmaking; whereas, a Question Hour is not actually a
power in terms of its own lawmaking power because in
Legislative Inquiry, it is in aid of legislation. And so we put
Question Hour as Section 31. I hope Commissioner Davide will
consider this.
MR. DAVIDE. The Question Hour is closely related with the
legislative power, and it is precisely as a complement to or a
supplement of the Legislative Inquiry. The appearance of the
members of Cabinet would be very, very essential not only in the
application of check and balance but also, in effect, in aid of
legislation.
MR. MAAMBONG. After conferring with the committee, we find
merit in the suggestion of Commissioner Davide. In other words,
we are accepting that and so this Section 31 would now become
Section 22. Would it be, Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations,
Commissioners Davide and Maambong proceeded from the
same assumption that these provisions pertained to two
different functions of the legislature. Both Commissioners
understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries
during the question hour. Commissioner Davide’s only concern
was that the two provisions on these distinct powers be placed
closely together, they being complementary to each other.
Neither Commissioner considered them as identical functions of
Congress.
The foregoing opinion was not the two Commissioners’ alone.
From the above-quoted exchange, Commissioner Maambong’s
committee – the Committee on Style – shared the view that the
two provisions reflected distinct functions of Congress.
Commissioner Davide, on the other hand, was speaking in his
capacity as Chairman of the Committee on the Legislative
Department. His views may thus be presumed as representing
that of his Committee.
In the context of a parliamentary system of government, the
"question hour" has a definite meaning. It is a period of
confrontation initiated by Parliament to hold the Prime Minister
and the other ministers accountable for their acts and the
operation of the government,85 corresponding to what is known
in Britain as the question period. There was a specific provision
for a question hour in the 1973 Constitution86 which made the
appearance of ministers mandatory. The same perfectly
conformed to the parliamentary system established by that
Constitution, where the ministers are also members of the
legislature and are directly accountable to it.
An essential feature of the parliamentary system of government
is the immediate accountability of the Prime Minister and the
Cabinet to the National Assembly. They shall be responsible to
the National Assembly for the program of government and shall
determine the guidelines of national policy. Unlike in the
presidential system where the tenure of office of all elected
officials cannot be terminated before their term expired, the
Prime Minister and the Cabinet remain in office only as long as
they enjoy the confidence of the National Assembly. The
moment this confidence is lost the Prime Minister and the
Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory
nature of such appearance during the question hour in the
present Constitution so as to conform more fully to a system of
separation of powers.88 To that extent, the question hour, as it
is presently understood in this jurisdiction, departs from the
question period of the parliamentary system. That department
heads may not be required to appear in a question hour does
not, however, mean that the legislature is rendered powerless to
elicit information from them in all circumstances. In fact, in light
of the absence of a mandatory question period, the need to
enforce Congress’ right to executive information in the
performance of its legislative function becomes more
imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the
subject under discussion, it is that the Congress has the right to
obtain information from any source – even from officials of
departments and agencies in the executive branch. In the United
States there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear separation
between the legislative and executive branches. It is this very
separation that makes the congressional right to obtain
information from the executive so essential, if the functions of
the Congress as the elected representatives of the people are
adequately to be carried out. The absence of close rapport
between the legislative and executive branches in this country,
comparable to those which exist under a parliamentary system,
and the nonexistence in the Congress of an institution such as
the British question period have perforce made reliance by the
Congress upon its right to obtain information from the executive
essential, if it is intelligently to perform its legislative tasks.
Unless the Congress possesses the right to obtain executive
information, its power of oversight of administration in a system
such as ours becomes a power devoid of most of its practical
content, since it depends for its effectiveness solely upon
information parceled out ex gratia by the executive.89
(Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and
complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically
relates to the power to conduct inquiries in aid of legislation, the
aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a
question hour, the objective of which is to obtain information in
pursuit of Congress’ oversight function.
When Congress merely seeks to be informed on how
department heads are implementing the statutes which it has
issued, its right to such information is not as imperative as that
of the President to whom, as Chief Executive, such department
heads must give a report of their performance as a matter of
duty. In such instances, Section 22, in keeping with the
separation of powers, states that Congress may only request
their appearance. Nonetheless, when the inquiry in which
Congress requires their appearance is "in aid of legislation"
under Section 21, the appearance is mandatory for the same
reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in
pursuit of legislation. This is consistent with the intent discerned
from the deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of
executive officials under Section 21 and the lack of it under
Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of Congress to legislate
by refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one executive official may be
exempted from this power — the President on whom executive
power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on her being the
highest official of the executive branch, and the due respect
accorded to a co-equal branch of government which is
sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also
exempt from this power of inquiry. Unlike the Presidency,
judicial power is vested in a collegial body; hence, each member
thereof is exempt on the basis not only of separation of powers
but also on the fiscal autonomy and the constitutional
independence of the judiciary. This point is not in dispute, as
even counsel for the Senate, Sen. Joker Arroyo, admitted it
during the oral argument upon interpellation of the Chief
Justice.
Having established the proper interpretation of Section 22,
Article VI of the Constitution, the Court now proceeds to pass on
the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article
VI of the Constitution and the absence of any reference to
inquiries in aid of legislation, must be construed as limited in its
application to appearances of department heads in the question
hour contemplated in the provision of said Section 22 of Article
VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way
that will render it constitutional.
The requirement then to secure presidential consent under
Section 1, limited as it is only to appearances in the question
hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department heads in the
question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of
department heads in inquiries in aid of legislation. Congress is
not bound in such instances to respect the refusal of the
department head to appear in such inquiry, unless a valid claim
of privilege is subsequently made, either by the President herself
or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated
in Section 2(b) to secure the consent of the President prior to
appearing before either house of Congress. The enumeration is
broad. It covers all senior officials of executive departments, all
officers of the AFP and the PNP, and all senior national security
officials who, in the judgment of the heads of offices designated
in the same section (i.e. department heads, Chief of Staff of the
AFP, Chief of the PNP, and the National Security Adviser), are
"covered by the executive privilege."
The enumeration also includes such other officers as may be
determined by the President. Given the title of Section 2 —
"Nature, Scope and Coverage of Executive Privilege" —, it is
evident that under the rule of ejusdem generis, the
determination by the President under this provision is intended
to be based on a similar finding of coverage under executive
privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually
states that executive privilege actually covers persons. Such is a
misuse of the doctrine. Executive privilege, as discussed above,
is properly invoked in relation to specific categories of
information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the
nature, scope and coverage of executive privilege, the reference
to persons being "covered by the executive privilege" may be
read as an abbreviated way of saying that the person is in
possession of information which is, in the judgment of the head
of office concerned, privileged as defined in Section 2(a). The
Court shall thus proceed on the assumption that this is the
intention of the challenged order.
Upon a determination by the designated head of office or by the
President that an official is "covered by the executive privilege,"
such official is subjected to the requirement that he first secure
the consent of the President prior to appearing before Congress.
This requirement effectively bars the appearance of the official
concerned unless the same is permitted by the President. The
proviso allowing the President to give its consent means nothing
more than that the President may reverse a prohibition which
already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the
determination by a head of office, authorized by the President
under E.O. 464, or by the President herself, that such official is in
possession of information that is covered by executive privilege.
This determination then becomes the basis for the official’s not
showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify
his failure to be present, such invocation must be construed as a
declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested
information is privileged, and that the President has not
reversed such determination. Such declaration, however, even
without mentioning the term "executive privilege," amounts to
an implied claim that the information is being withheld by the
executive branch, by authority of the President, on the basis of
executive privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive
Secretary Ermita to Senate President Drilon illustrates the
implied nature of the claim of privilege authorized by E.O. 464. It
reads:
In connection with the inquiry to be conducted by the
Committee of the Whole regarding the Northrail Project of the
North Luzon Railways Corporation on 29 September 2005 at
10:00 a.m., please be informed that officials of the Executive
Department invited to appear at the meeting will not be able to
attend the same without the consent of the President, pursuant
to Executive Order No. 464 (s. 2005), entitled "Ensuring
Observance Of The Principle Of Separation Of Powers,
Adherence To The Rule On Executive Privilege And Respect For
The Rights Of Public Officials Appearing In Legislative Inquiries In
Aid Of Legislation Under The Constitution, And For Other
Purposes". Said officials have not secured the required consent
from the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that
the matter on which these officials are being requested to be
resource persons falls under the recognized grounds of the
privilege to justify their absence. Nor does it expressly state that
in view of the lack of consent from the President under E.O. 464,
they cannot attend the hearing.
Significant premises in this letter, however, are left unstated,
deliberately or not. The letter assumes that the invited officials
are covered by E.O. 464. As explained earlier, however, to be
covered by the order means that a determination has been
made, by the designated head of office or the President, that the
invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the letter
that such determination has been made, the same must be
deemed implied. Respecting the statement that the invited
officials have not secured the consent of the President, it only
means that the President has not reversed the standing
prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to the
conclusion that the executive branch, either through the
President or the heads of offices authorized under E.O. 464, has
made a determination that the information required by the
Senate is privileged, and that, at the time of writing, there has
been no contrary pronouncement from the President. In fine, an
implied claim of privilege has been made by the executive.
While there is no Philippine case that directly addresses the
issue of whether executive privilege may be invoked against
Congress, it is gathered from Chavez v. PEA that certain
information in the possession of the executive may validly be
claimed as privileged even against Congress. Thus, the case
holds:
There is no claim by PEA that the information demanded by
petitioner is privileged information rooted in the separation of
powers. The information does not cover Presidential
conversations, correspondences, or discussions during closed-
door Cabinet meetings which, like internal-deliberations of the
Supreme Court and other collegiate courts, or executive sessions
of either house of Congress, are recognized as confidential. This
kind of information cannot be pried open by a co-equal branch
of government. A frank exchange of exploratory ideas and
assessments, free from the glare of publicity and pressure by
interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential,
Legislative and Judicial power. This is not the situation in the
instant case.91 (Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as
invalid by the mere fact that it sanctions claims of executive
privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is
valid.
While the validity of claims of privilege must be assessed on a
case to case basis, examining the ground invoked therefor and
the particular circumstances surrounding it, there is, in an
implied claim of privilege, a defect that renders it invalid per se.
By its very nature, and as demonstrated by the letter of
respondent Executive Secretary quoted above, the implied claim
authorized by Section 3 of E.O. 464 is not accompanied by any
specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets,
closed-door Cabinet meetings, etc.). While Section 2(a)
enumerates the types of information that are covered by the
privilege under the challenged order, Congress is left to
speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be
comprehensive, but a mere statement of what is included in the
phrase "confidential or classified information between the
President and the public officers covered by this executive
order."
Certainly, Congress has the right to know why the executive
considers the requested information privileged. It does not
suffice to merely declare that the President, or an authorized
head of office, has determined that it is so, and that the
President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested
information could be classified as privileged. That the message is
couched in terms that, on first impression, do not seem like a
claim of privilege only makes it more pernicious. It threatens to
make Congress doubly blind to the question of why the
executive branch is not providing it with the information that it
has requested.
A claim of privilege, being a claim of exemption from an
obligation to disclose information, must, therefore, be clearly
asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted
by it; it can neither be claimed nor waived by a private party. It is
not to be lightly invoked. There must be a formal claim of
privilege, lodged by the head of the department which has
control over the matter, after actual personal consideration by
that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet
do so without forcing a disclosure of the very thing the privilege
is designed to protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of
executive privilege, there is no way of determining whether it
falls under one of the traditional privileges, or whether, given
the circumstances in which it is made, it should be respected.93
These, in substance, were the same criteria in assessing the
claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the
Senate in Senate Select Committee on Presidential Campaign
Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential
harm resulting from disclosure impossible, thereby preventing
the Court from balancing such harm against plaintiffs’ needs to
determine whether to override any claims of privilege.96
(Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon
to perform this balancing operation. In stating its objection to
claimant’s interrogatories, government asserts, and nothing
more, that the disclosures sought by claimant would inhibit the
free expression of opinion that non-disclosure is designed to
protect. The government has not shown – nor even alleged –
that those who evaluated claimant’s product were involved in
internal policymaking, generally, or in this particular instance.
Privilege cannot be set up by an unsupported claim. The facts
upon which the privilege is based must be established. To find
these interrogatories objectionable, this Court would have to
assume that the evaluation and classification of claimant’s
products was a matter of internal policy formulation, an
assumption in which this Court is unwilling to indulge sua
sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes
that "an agency must provide ‘precise and certain’ reasons for
preserving the confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a
specific designation and description of the documents within its
scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a
court to analyze the claim short of disclosure of the very thing
sought to be protected. As the affidavit now stands, the Court
has little more than its sua sponte speculation with which to
weigh the applicability of the claim. An improperly asserted
claim of privilege is no claim of privilege. Therefore, despite the
fact that a claim was made by the proper executive as Reynolds
requires, the Court can not recognize the claim in the instant
case because it is legally insufficient to allow the Court to make a
just and reasonable determination as to its applicability. To
recognize such a broad claim in which the Defendant has given
no precise or compelling reasons to shield these documents
from outside scrutiny, would make a farce of the whole
procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover,
demands no less than a claim of privilege clearly stating the
grounds therefor. Apropos is the following ruling in McPhaul v.
U.S:102
We think the Court’s decision in United States v. Bryan, 339 U.S.
323, 70 S. Ct. 724, is highly relevant to these questions. For it is
as true here as it was there, that ‘if (petitioner) had legitimate
reasons for failing to produce the records of the association, a
decent respect for the House of Representatives, by whose
authority the subpoenas issued, would have required that (he)
state (his) reasons for noncompliance upon the return of the
writ. Such a statement would have given the Subcommittee an
opportunity to avoid the blocking of its inquiry by taking other
appropriate steps to obtain the records. ‘To deny the Committee
the opportunity to consider the objection or remedy is in itself a
contempt of its authority and an obstruction of its processes. His
failure to make any such statement was "a patent evasion of the
duty of one summoned to produce papers before a
congressional committee[, and] cannot be condoned."
(Emphasis and underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive
to state the reasons for the claim with such particularity as to
compel disclosure of the information which the privilege is
meant to protect.103 A useful analogy in determining the
requisite degree of particularity would be the privilege against
self-incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because
he declares that in so doing he would incriminate himself – his
say-so does not of itself establish the hazard of incrimination. It
is for the court to say whether his silence is justified, and to
require him to answer if ‘it clearly appears to the court that he is
mistaken.’ However, if the witness, upon interposing his claim,
were required to prove the hazard in the sense in which a claim
is usually required to be established in court, he would be
compelled to surrender the very protection which the privilege is
designed to guarantee. To sustain the privilege, it need only be
evident from the implications of the question, in the setting in
which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous
because injurious disclosure could result." x x x (Emphasis and
underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to
Section 2(b) is thus invalid per se. It is not asserted. It is merely
implied. Instead of providing precise and certain reasons for the
claim, it merely invokes E.O. 464, coupled with an
announcement that the President has not given her consent. It is
woefully insufficient for Congress to determine whether the
withholding of information is justified under the circumstances
of each case. It severely frustrates the power of inquiry of
Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be
invalidated.
No infirmity, however, can be imputed to Section 2(a) as it
merely provides guidelines, binding only on the heads of office
mentioned in Section 2(b), on what is covered by executive
privilege. It does not purport to be conclusive on the other
branches of government. It may thus be construed as a mere
expression of opinion by the President regarding the nature and
scope of executive privilege.
Petitioners, however, assert as another ground for invalidating
the challenged order the alleged unlawful delegation of
authority to the heads of offices in Section 2(b). Petitioner
Senate of the Philippines, in particular, cites the case of the
United States where, so it claims, only the President can assert
executive privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once
the head of office determines that a certain information is
privileged, such determination is presumed to bear the
President’s authority and has the effect of prohibiting the official
from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the
appearance of such official. These provisions thus allow the
President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the
exceptional nature of the privilege. Executive privilege, as
already discussed, is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the
unique role and responsibilities of the executive branch,105 or in
those instances where exemption from disclosure is necessary to
the discharge of highly important executive responsibilities.106
The doctrine of executive privilege is thus premised on the fact
that certain informations must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being,
by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of
such high degree as to outweigh the public interest in enforcing
that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the
Court finds it essential to limit to the President the power to
invoke the privilege. She may of course authorize the Executive
Secretary to invoke the privilege on her behalf, in which case the
Executive Secretary must state that the authority is "By order of
the President," which means that he personally consulted with
her. The privilege being an extraordinary power, it must be
wielded only by the highest official in the executive hierarchy. In
other words, the President may not authorize her subordinates
to exercise such power. There is even less reason to uphold such
authorization in the instant case where the authorization is not
explicit but by mere silence. Section 3, in relation to Section 2(b),
is further invalid on this score.
It follows, therefore, that when an official is being summoned by
Congress on a matter which, in his own judgment, might be
covered by executive privilege, he must be afforded reasonable
time to inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is necessary in
order to provide the President or the Executive Secretary with
fair opportunity to consider whether the matter indeed calls for
a claim of executive privilege. If, after the lapse of that
reasonable time, neither the President nor the Executive
Secretary invokes the privilege, Congress is no longer bound to
respect the failure of the official to appear before Congress and
may then opt to avail of the necessary legal means to compel his
appearance.
The Court notes that one of the expressed purposes for
requiring officials to secure the consent of the President under
Section 3 of E.O. 464 is to ensure "respect for the rights of public
officials appearing in inquiries in aid of legislation." That such
rights must indeed be respected by Congress is an echo from
Article VI Section 21 of the Constitution mandating that "[t]he
rights of persons appearing in or affected by such inquiries shall
be respected."
In light of the above discussion of Section 3, it is clear that it is
essentially an authorization for implied claims of executive
privilege, for which reason it must be invalidated. That such
authorization is partly motivated by the need to ensure respect
for such officials does not change the infirm nature of the
authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the
appearance of executive officials in the hearings conducted by it,
and not with the demands of citizens for information pursuant
to their right to information on matters of public concern.
Petitioners are not amiss in claiming, however, that what is
involved in the present controversy is not merely the legislative
power of inquiry, but the right of the people to information.
There are, it bears noting, clear distinctions between the right of
Congress to information which underlies the power of inquiry
and the right of the people to information on matters of public
concern. For one, the demand of a citizen for the production of
documents pursuant to his right to information does not have
the same obligatory force as a subpoena duces tecum issued by
Congress. Neither does the right to information grant a citizen
the power to exact testimony from government officials. These
powers belong only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by
the people, it does not follow, except in a highly qualified sense,
that in every exercise of its power of inquiry, the people are
exercising their right to information.
To the extent that investigations in aid of legislation are
generally conducted in public, however, any executive issuance
tending to unduly limit disclosures of information in such
investigations necessarily deprives the people of information
which, being presumed to be in aid of legislation, is presumed to
be a matter of public concern. The citizens are thereby denied
access to information which they can use in formulating their
own opinions on the matter before Congress — opinions which
they can then communicate to their representatives and other
government officials through the various legal means allowed by
their freedom of expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may
perceive and be responsive to the people’s will. Yet, this open
dialogue can be effective only to the extent that the citizenry is
informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues
and have access to information relating thereto can such bear
fruit.107 (Emphasis and underscoring supplied)
The impairment of the right of the people to information as a
consequence of E.O. 464 is, therefore, in the sense explained
above, just as direct as its violation of the legislature’s power of
inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it
does not follow that the same is exempt from the need for
publication. On the need for publishing even those statutes that
do not directly apply to people in general, Tañada v. Tuvera
states:
The term "laws" should refer to all laws and not only to those of
general application, for strictly speaking all laws relate to the
people in general albeit there are some that do not apply to
them directly. An example is a law granting citizenship to a
particular individual, like a relative of President Marcos who was
decreed instant naturalization. It surely cannot be said that such
a law does not affect the public although it unquestionably does
not apply directly to all the people. The subject of such law is a
matter of public interest which any member of the body politic
may question in the political forums or, if he is a proper party,
even in courts of justice.108 (Emphasis and underscoring
supplied)
Although the above statement was made in reference to
statutes, logic dictates that the challenged order must be
covered by the publication requirement. As explained above,
E.O. 464 has a direct effect on the right of the people to
information on matters of public concern. It is, therefore, a
matter of public interest which members of the body politic may
question before this Court. Due process thus requires that the
people should have been apprised of this issuance before it was
implemented.
Conclusion
Congress undoubtedly has a right to information from the
executive branch whenever it is sought in aid of legislation. If the
executive branch withholds such information on the ground that
it is privileged, it must so assert it and state the reason therefor
and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive
branch to evade congressional requests for information without
need of clearly asserting a right to do so and/or proffering its
reasons therefor. By the mere expedient of invoking said
provisions, the power of Congress to conduct inquiries in aid of
legislation is frustrated. That is impermissible. For
[w]hat republican theory did accomplish…was to reverse the old
presumption in favor of secrecy, based on the divine right of
kings and nobles, and replace it with a presumption in favor of
publicity, based on the doctrine of popular sovereignty.
(Underscoring supplied)109
Resort to any means then by which officials of the executive
branch could refuse to divulge information cannot be presumed
valid. Otherwise, we shall not have merely nullified the power of
our legislature to inquire into the operations of government, but
we shall have given up something of much greater value – our
right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b)
and 3 of Executive Order No. 464 (series of 2005), "Ensuring
Observance of the Principle of Separation of Powers, Adherence
to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing
in Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes," are declared VOID.
Sections 1 and 2(a) are, however, VALID.
SO ORDERED.

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 facie case 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 the Undersecretary of Justice sustaining the City
Fiscal's finding of a prima facie case against petitioners. A second
motion for reconsideration filed by petitioner Beltran was
denied by the 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.

G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD
LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER
R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO
ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL
ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE,
Respondents.
x-------------------------------------x
G.R. No. 171409 May 3, 2006
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC.,
Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO,
TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA,
SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO
ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J.
VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B.
MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE
ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA,
FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL,
IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL
LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J.
CRUZ, JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY,
DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO
LOMIBAO, CHIEF PNP, Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON
ELMER C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS – KILUSANG MAYO
UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL
PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, EMILIA P. DAPULANG, MARTIN
CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO,
THE HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA,
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL,
ARTURO LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN.
GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL,
FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF,
AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY
AS PNP CHIEF, Respondents.
x-------------------------------------x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS
PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO,
IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY
AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES
(AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather
than rigid formula are necessary.1 Superior strength – the use of
force – cannot make wrongs into rights. In this regard, the courts
should be vigilant in safeguarding the constitutional rights of the
citizens, specifically their liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is
thus most relevant. He said: "In cases involving liberty, the scales
of justice should weigh heavily against government and in favor
of the poor, the oppressed, the marginalized, the dispossessed
and the weak." Laws and actions that restrict fundamental rights
come to the courts "with a heavy presumption against their
constitutional validity."2
These seven (7) consolidated petitions for certiorari and
prohibition allege that in issuing Presidential Proclamation No.
1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President
Gloria Macapagal-Arroyo committed grave abuse of discretion.
Petitioners contend that respondent officials of the
Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very
freedom guaranteed and protected by the Constitution. Hence,
such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently
modern problem. How does the Constitution of a free people
combine the degree of liberty, without which, law becomes
tyranny, with the degree of law, without which, liberty becomes
license?3
On February 24, 2006, as the nation celebrated the 20th
Anniversary of the Edsa People Power I, President Arroyo issued
PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the
Armed Forces of the Philippines, by virtue of the powers vested
upon me by Section 18, Article 7 of the Philippine Constitution
which states that: "The President. . . whenever it becomes
necessary, . . . may call out (the) armed forces to prevent or
suppress. . .rebellion. . .," and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of
the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;
and as provided in Section 17, Article 12 of the Constitution do
hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme
Left represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists – the historical enemies of
the democratic Philippine State – who are now in a tactical
alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly constituted
Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring
down the President;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State –
by obstructing governance including hindering the growth of the
economy and sabotaging the people’s confidence in government
and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the
extreme Left and extreme Right the opening to intensify their
avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the
State the primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute 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 Montaño, former head of the
Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.
Attempts were made to arrest Anakpawis Representative Satur
Ocampo, Representative Rafael Mariano, Bayan Muna
Representative Teodoro Casiño and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was arrested at
the PAL Ticket Office in Davao City. Later, he was turned over to
the custody of the House of Representatives where the "Batasan
5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the
rights of Representatives Beltran, Satur Ocampo, et al., are not
being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring
that the state of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the
constitutionality of PP 1017 and G.O. No. 5 were filed with this
Court against the above-named respondents. Three (3) of these
petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed
PP 1017 on the grounds that (1) it encroaches on the emergency
powers of Congress; (2) itis a subterfuge to avoid the
constitutional requirements for the imposition of martial law;
and (3) it violates the constitutional guarantees of freedom of
the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and
Tribune Publishing Co., Inc. challenged the CIDG’s act of raiding
the Daily Tribune offices as a clear case of "censorship" or "prior
restraint." They also claimed that the term "emergency" refers
only to tsunami, typhoon, hurricane and similar occurrences,
hence, there is "absolutely no emergency" that warrants the
issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis
Joseph G. Escudero, and twenty one (21) other members of the
House of Representatives, including Representatives Satur
Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
Virador. They asserted that PP 1017 and G.O. No. 5 constitute
"usurpation of legislative powers"; "violation of freedom of
expression" and "a declaration of martial law." They alleged that
President Arroyo "gravely abused her discretion in calling out
the armed forces without clear and verifiable factual basis of the
possibility of lawless violence and a showing that there is
necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their
members averred that PP 1017 and G.O. No. 5 are
unconstitutional because (1) they arrogate unto President
Arroyo the power to enact laws and decrees; (2) their issuance
was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to
redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc.
(ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional
because they violate (a) Section 415 of Article II, (b) Sections
1,16 2,17 and 418 of Article III, (c) Section 2319 of Article VI, and
(d) Section 1720 of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al.,
alleged that PP 1017 is an "arbitrary and unlawful exercise by
the President of her Martial Law powers." And assuming that PP
1017 is not really a declaration of Martial Law, petitioners
argued that "it amounts to an exercise by the President of
emergency powers without congressional approval." In addition,
petitioners asserted that PP 1017 "goes beyond the nature and
function of a proclamation as defined under the Revised
Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda
maintained that PP 1017 and G.O. No. 5 are "unconstitutional
for being violative of the freedom of expression, including its
cognate rights such as freedom of the press and the right to
access to information on matters of public concern, all
guaranteed under Article III, Section 4 of the 1987 Constitution."
In this regard, she stated that these issuances prevented her
from fully prosecuting her election protest pending before the
Presidential Electoral Tribunal.
In respondents’ Consolidated Comment, the Solicitor General
countered that: first, the petitions should be dismissed for being
moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and
171489 (Cadiz et al.) have no legal standing; third, it is not
necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis;
and fifth, PP 1017 does not violate the people’s right to free
expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and
heard the parties on the above interlocking issues which may be
summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot
and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and
171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP
1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this
country is the concept of judicial review enunciated in Marbury
v. Madison.21 This concept rests on the extraordinary simple
foundation --
The Constitution is the supreme law. It was ordained by the
people, the ultimate source of all political authority. It confers
limited powers on the national government. x x x If the
government consciously or unconsciously oversteps these
limitations there must be some authority competent to hold it in
control, to thwart its unconstitutional attempt, and thus to
vindicate and preserve inviolate the will of the people as
expressed in the Constitution. This power the courts exercise.
This is the beginning and the end of the theory of judicial
review.22
But the power of judicial review does not repose upon the
courts a "self-starting capacity."23 Courts may exercise such
power only when the following requisites are present: first,
there must be an actual case or controversy; second, petitioners
have to raise a question of constitutionality; third, the
constitutional question must be raised at the earliest
opportunity; and fourth, the decision of the constitutional
question must be necessary to the determination of the case
itself.24
Respondents maintain that the first and second requisites are
absent, hence, we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an
opposite legal claims susceptible of judicial resolution. It is
"definite and concrete, touching the legal relations of parties
having adverse legal interest;" a real and substantial controversy
admitting of specific relief.25 The Solicitor General refutes the
existence of such actual case or controversy, contending that the
present petitions were rendered "moot and academic" by
President Arroyo’s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events,26 so
that a declaration thereon would be of no practical use or
value.27 Generally, courts decline jurisdiction over such case28
or dismiss it on ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did
not render the present petitions moot and academic. During the
eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing
it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they
justify these alleged illegal acts? These are the vital issues that
must be resolved in the present petitions. It must be stressed
that "an unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal
contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that
can automatically dissuade the courts in resolving a case. Courts
will decide cases, otherwise moot and academic, if: first, there is
a grave violation of the Constitution;31 second, the exceptional
character of the situation and the paramount public interest is
involved;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. Jordan41 held that "the right of a citizen
and a taxpayer to maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed
with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex Parte Levitt,42
later reaffirmed 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 Works47 and Anti-Chinese League of the
Philippines v. Felix.48
However, being a mere procedural technicality, the requirement
of locus standi may be waived by the Court in the exercise of its
discretion. This was done in the 1949 Emergency Powers Cases,
Araneta v. Dinglasan,49 where the "transcendental importance"
of the cases prompted the Court to act liberally. Such liberality
was neither a rarity nor accidental. In Aquino v. Comelec,50 this
Court resolved to pass upon the issues raised due to the "far-
reaching implications" of the petition notwithstanding its
categorical statement that petitioner therein had no personality
to file the suit. Indeed, there is a chain of cases where this liberal
policy has been observed, allowing ordinary citizens, members
of Congress, and civic organizations to prosecute actions
involving the constitutionality or validity of laws, regulations and
rulings.51
Thus, the Court has adopted a rule that even where the
petitioners have failed to show direct injury, they have been
allowed to sue under the principle of "transcendental
importance." Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled
that the enforcement of the constitutional right to information
and the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with
locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the
Court held that "given the transcendental importance of the
issues involved, the Court may relax the standing requirements
and allow the suit to prosper despite the lack of direct injury to
the parties seeking judicial review" of the Visiting Forces
Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent
a showing that "Balikatan 02-01" involves the exercise of
Congress’ taxing or spending powers, it reiterated its ruling in
Bagong Alyansang Makabayan v. Zamora,55that in cases of
transcendental importance, the cases must be settled promptly
and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the
cases decided by this Court. Taxpayers, voters, concerned
citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement
of public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be
settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the
Court’s attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of
Kilosbayan as a people’s organization does not give it the
requisite personality to question the validity of the on-line
lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent
any allegation that public funds are being misused. Nor can it
sue as a concerned citizen as it does not allege any specific injury
it has suffered.
In Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Comelec,57 the Court reiterated the "direct
injury" test with respect to concerned citizens’ cases involving
constitutional issues. It held that "there must be a showing that
the citizen personally suffered some actual or threatened injury
arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners,
Laban ng Demokratikong Pilipino (LDP), is not a real party-in-
interest as it had not demonstrated any injury to itself or to its
leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only
the petitioners who are members of Congress have standing to
sue, as they claim that the President’s declaration of a state of
rebellion is a usurpation of the emergency powers of Congress,
thus impairing their legislative powers. As to petitioners
Sanlakas, Partido Manggagawa, and Social Justice Society, the
Court declared them to be devoid of standing, equating them
with the LDP in Lacson.
Now, the application of the above principles to the present
petitions.
The locus standi of petitioners in G.R. No. 171396, particularly
David and Llamas, is beyond doubt. The same holds true with
petitioners in G.R. No. 171409, Cacho-Olivares and Tribune
Publishing Co. Inc. They alleged "direct injury" resulting from
"illegal arrest" and "unlawful search" committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General
does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there
was usurpation of legislative powers. They also raised the issue
of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used.
Moreover, it is in the interest of justice that those affected by PP
1017 can be represented by their Congressmen in bringing to
the attention of the Court the alleged violations of their basic
rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in
Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Tañada v. Tuvera,64 that when the issue
concerns a public right, it is sufficient that the petitioner is a
citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient
to give it legal standing. Organizations may be granted standing
to assert the rights of their members.65 We take judicial notice
of the announcement by the Office of the President banning all
rallies and canceling all permits for public assemblies following
the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national
officers of the Integrated Bar of the Philippines (IBP) have no
legal standing, having failed to allege any direct or potential
injury which the IBP as an institution or its members may suffer
as a consequence of the issuance of PP No. 1017 and G.O. No. 5.
In Integrated Bar of the Philippines v. Zamora,66 the Court held
that the mere invocation by the IBP of its duty to preserve the
rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too
general an interest which is shared by other groups and the
whole citizenry. However, in view of the transcendental
importance of the issue, this Court declares that petitioner have
locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a
taxpayer to file the instant petition as there are no allegations of
illegal disbursement of public funds. The fact that she is a former
Senator is of no consequence. She can no longer sue as a
legislator on the allegation that her prerogatives as a lawmaker
have been impaired by PP 1017 and G.O. No. 5. Her claim that
she is a media personality will not likewise aid her because there
was no showing that the enforcement of these issuances
prevented her from pursuing her occupation. Her submission
that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not
sufficiently shown that PP 1017 will affect the proceedings or
result of her case. But considering once more the transcendental
importance of the issue involved, this Court may relax the
standing rules.
It must always be borne in mind that the question of locus standi
is but corollary to the bigger question of proper exercise of
judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the
validity of PP No. 1017 and G.O. No. 5 is a judicial question which
is of paramount importance to the Filipino people. To
paraphrase Justice Laurel, the whole of Philippine society now
waits with bated breath the ruling of this Court on this very
critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the
standing requirements for the petitioners in the "PP 1017
cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as
respondent. Settled is the doctrine that the President, during his
tenure of office or actual incumbency,67 may not be sued in any
civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office
of the President, the Head of State, if he can be dragged into
court litigations while serving as such. Furthermore, it is
important that he be freed from any form of harassment,
hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the
discharge of the many great and important duties imposed upon
him by the Constitution necessarily impairs the operation of the
Government. However, this does not mean that the President is
not accountable to anyone. Like any other official, he remains
accountable to the people68 but he may be removed from office
only in the mode provided by law and that is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it
was not "necessary" for President Arroyo to issue such
Proclamation.
The issue of whether the Court may review the factual bases of
the President’s exercise of his Commander-in-Chief power has
reached its distilled point - from the indulgent days of Barcelon
v. Baker70 and Montenegro v. Castaneda71 to the volatile era of
Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v.
Enrile.74 The tug-of-war always cuts across the line defining
"political questions," particularly those questions "in regard to
which full discretionary authority has been delegated to the
legislative or executive branch of the government."75 Barcelon
and Montenegro were in unison in declaring that the authority
to decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the courts.
Lansang took the opposite view. There, the members of the
Court were unanimous in the conviction that the Court has the
authority to inquire into the existence of factual bases in order
to determine their constitutional sufficiency. From the principle
of separation of powers, it shifted the focus to the system of
checks and balances, "under which the President is supreme, x x
x only if and when he acts within the sphere allotted to him by
the Basic Law, and the authority to determine whether or not he
has so acted is vested in the Judicial Department, which in this
respect, is, in turn, constitutionally supreme."76 In 1973, the
unanimous Court of Lansang was divided in Aquino v. Enrile.77
There, the Court was almost evenly divided on the issue of
whether the validity of the imposition of Martial Law is a political
or justiciable question.78 Then came Garcia-Padilla v. Enrile
which greatly diluted Lansang. It declared that there is a need to
re-examine the latter case, ratiocinating that "in times of war or
national emergency, the President must be given absolute
control for the very life of the nation and the government is in
great peril. The President, it intoned, is answerable only to his
conscience, the People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent
case most pertinent to these cases at bar -- echoed a principle
similar to Lansang. While the Court considered the President’s
"calling-out" power as a discretionary power solely vested in his
wisdom, it stressed that "this does not prevent an examination
of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion."This ruling is mainly a
result of the Court’s reliance on Section 1, Article VIII of 1987
Constitution which fortifies the authority of the courts to
determine in an appropriate action the validity of the acts of the
political departments. Under the new definition of judicial
power, the courts are authorized not only "to settle actual
controversies involving rights which are legally demandable and
enforceable," but also "to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government." The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the
discretion of the political departments of the government.81 It
speaks of judicial prerogative not only in terms of power but also
of duty.82
As to how the Court may inquire into the President’s exercise of
power, Lansang adopted the test that "judicial inquiry can go no
further than to satisfy the Court not that the President’s decision
is correct," but that "the President did not act arbitrarily." Thus,
the standard laid down is not correctness, but arbitrariness.83 In
Integrated Bar of the Philippines, this Court further ruled that "it
is incumbent upon the petitioner to show that the President’s
decision is totally bereft of factual basis" and that if he fails, by
way of proof, to support his assertion, then "this Court cannot
undertake an independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the
calling-out power, by issuing PP 1017, is totally bereft of factual
basis. A reading of the Solicitor General’s Consolidated Comment
and Memorandum shows a detailed narration of the events
leading to the issuance of PP 1017, with supporting reports
forming part of the records. Mentioned are the escape of the
Magdalo Group, their audacious threat of the Magdalo D-Day,
the defections in the military, particularly in the Philippine
Marines, and the reproving statements from the communist
leaders. There was also the Minutes of the Intelligence Report
and Security Group of the Philippine Army showing the growing
alliance between the NPA and the military. Petitioners presented
nothing to refute such events. Thus, absent any contrary
allegations, the Court is convinced that the President was
justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President
Arroyo was not expected to simply fold her arms and do nothing
to prevent or suppress what she believed was lawless violence,
invasion or rebellion. However, the exercise of such power or
duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the
President in times of emergency. A glimpse at the various
political theories relating to this subject provides an adequate
backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government,
called upon the English doctrine of prerogative to cope with the
problem of emergency. In times of danger to the nation, positive
law enacted by the legislature might be inadequate or even a
fatal obstacle to the promptness of action necessary to avert
catastrophe. In these situations, the Crown retained a
prerogative "power to act according to discretion for the public
good, without the proscription of the law and sometimes even
against it."84 But Locke recognized that this moral restraint
might not suffice to avoid abuse of prerogative powers. Who
shall judge the need for resorting to the prerogative and how
may its abuse be avoided? Here, Locke readily admitted defeat,
suggesting that "the people have no other remedy in this, as in
all other cases where they have no judge on earth, but to appeal
to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary
suspension of democratic processes of government in time of
emergency. According to him:
The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them
disastrous and make them bring about, at a time of crisis, the
ruin of the State…
It is wrong therefore to wish to make political institutions as
strong as to render it impossible to suspend their operation.
Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws
are an obstacle to their preservation, the method is to nominate
a supreme lawyer, who shall silence all the laws and suspend for
a moment the sovereign authority. In such a case, there is no
doubt about the general will, and it clear that the people’s first
intention is that the State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or
"supreme magistracy" as he termed it. For him, it would more
likely be cheapened by "indiscreet use." He was unwilling to rely
upon an "appeal to heaven." Instead, he relied upon a tenure of
office of prescribed duration to avoid perpetuation of the
dictatorship.87
John Stuart Mill concluded his ardent defense of representative
government: "I am far from condemning, in cases of extreme
necessity, the assumption of absolute power in the form of a
temporary dictatorship."88
Nicollo Machiavelli’s view of emergency powers, as one element
in the whole scheme of limited government, furnished an ironic
contrast to the Lockean theory of prerogative. He recognized
and attempted to bridge this chasm in democratic political
theory, thus:
Now, in a well-ordered society, it should never be necessary to
resort to extra –constitutional measures; for although they may
for a time be beneficial, yet the precedent is pernicious, for if the
practice is once established for good objects, they will in a little
while be disregarded under that pretext but for evil purposes.
Thus, no republic will ever be perfect if she has not by law
provided for everything, having a remedy for every emergency
and fixed rules for applying it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to
incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and
controls in time of national danger. He attempted forthrightly to
meet the problem of combining a capacious reserve of power
and speed and vigor in its application in time of emergency, with
effective constitutional restraints.90
Contemporary political theorists, addressing themselves to the
problem of response to emergency by constitutional
democracies, have employed the doctrine of constitutional
dictatorship.91 Frederick M. Watkins saw "no reason why
absolutism should not be used as a means for the defense of
liberal institutions," provided it "serves to protect established
institutions from the danger of permanent injury in a period of
temporary emergency and is followed by a prompt return to the
previous forms of political life."92 He recognized the two (2) key
elements of the problem of emergency governance, as well as all
constitutional governance: increasing administrative powers of
the executive, while at the same time "imposing limitation upon
that power."93 Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of success
of such a dictatorship: "The period of dictatorship must be
relatively short…Dictatorship should always be strictly legitimate
in character…Final authority to determine the need for
dictatorship in any given case must never rest with the dictator
himself…"94 and the objective of such an emergency
dictatorship should be "strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of
Watkins.95 "It is a problem of concentrating power – in a
government where power has consciously been divided – to
cope with… situations of unprecedented magnitude and gravity.
There must be a broad grant of powers, subject to equally strong
limitations as to who shall exercise such powers, when, for how
long, and to what end."96 Friedrich, too, offered criteria for
judging the adequacy of any of scheme of emergency powers, to
wit: "The emergency executive must be appointed by
constitutional means – i.e., he must be legitimate; he should not
enjoy power to determine the existence of an emergency;
emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be
the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the
employment of emergency powers in Great Britain, France,
Weimar, Germany and the United States, reverted to a
description of a scheme of "constitutional dictatorship" as
solution to the vexing problems presented by emergency.98 Like
Watkins and Friedrich, he stated a priori the conditions of
success of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its
constitutional order…
2) …the decision to institute a constitutional dictatorship should
never be in the hands of the man or men who will constitute the
dictator…
3) No government should initiate a constitutional dictatorship
without making specific provisions for its termination…
4) …all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right
invaded, no regular procedure altered any more than is
absolutely necessary for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a
constitutional dictatorship should never be permanent in
character or effect…
7) The dictatorship should be carried on by persons
representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action
taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like
the decision to institute one should never be in the hands of the
man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted…
11) …the termination of the crisis must be followed by a
complete return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional
dictatorship…99
Rossiter accorded to legislature a far greater role in the
oversight exercise of emergency powers than did Watkins. He
would secure to Congress final responsibility for declaring the
existence or termination of an emergency, and he places great
faith in the effectiveness of congressional investigating
committees.100
Scott and Cotter, in analyzing the above contemporary theories
in light of recent experience, were one in saying that, "the
suggestion that democracies surrender the control of
government to an authoritarian ruler in time of grave danger to
the nation is not based upon sound constitutional theory." To
appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder
realistic analysis. It matters not whether the term "dictator" is
used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering
emergency powers. However used, "constitutional dictatorship"
cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the
"concept of constitutionalism" articulated by Charles H.
McIlwain:
A concept of constitutionalism which is less misleading in the
analysis of problems of emergency powers, and which is
consistent with the findings of this study, is that formulated by
Charles H. McIlwain. While it does not by any means necessarily
exclude some indeterminate limitations upon the substantive
powers of government, full emphasis is placed upon procedural
limitations, and political responsibility. McIlwain clearly
recognized the need to repose adequate power in government.
And in discussing the meaning of constitutionalism, he insisted
that the historical and proper test of constitutionalism was the
existence of adequate processes for keeping government
responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon
separation of powers and substantive limitations on
governmental power. He found that the really effective checks
on despotism have consisted not in the weakening of
government but, but rather in the limiting of it; between which
there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak"
government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for which
all lovers of liberty must yet fight are the legal limits to arbitrary
power and a complete political responsibility of government to
the governed.101
In the final analysis, the various approaches to emergency of the
above political theorists –- from Lock’s "theory of prerogative,"
to Watkins’ doctrine of "constitutional dictatorship" and,
eventually, to McIlwain’s "principle of constitutionalism" ---
ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of
discretionary power to the Chief Executive, while insuring that
such powers will be exercised with a sense of political
responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from
the fetters of a repressive regime, the 1986 Constitutional
Commission, in drafting the 1987 Constitution, endeavored to
create a government in the concept of Justice Jackson’s
"balanced power structure."102 Executive, legislative, and
judicial powers are dispersed to the President, the Congress, and
the Supreme Court, respectively. Each is supreme within its own
sphere. But none has the monopoly of power in times of
emergency. Each branch is given a role to serve as limitation or
check upon the other. This system does not weaken the
President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain
amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on
both unprotected and protected rights under Section 4, Article III
of the Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is
uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool
developed for testing "on their faces" statutes 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.
And third, a facial challenge on the ground of overbreadth is the
most difficult challenge to mount successfully, since the
challenger must establish that there can be no instance when
the assailed law may be valid. Here, petitioners did not even
attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the
ground of vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness
doctrine" which holds that "a law is facially invalid if men of
common intelligence must necessarily guess at its meaning and
differ as to its application."110 It is subject to the same
principles governing overbreadth doctrine. For one, it is also an
analytical tool for testing "on their faces" statutes in free speech
cases. And like overbreadth, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible
applications. Again, petitioners did not even attempt to show
that PP 1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand
the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three
important provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII
… do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well any act of
insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon
my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do
hereby declare a State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power.
In Sanlakas v. Executive Secretary,111 this Court, through Mr.
Justice Dante O. Tinga, held that Section 18, Article VII of the
Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part
thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of
the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours
following such proclamation or suspension, convene in
accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual bases of the
proclamation of martial law or the suspension of the privilege of
the writ or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
During the suspension of the privilege of the writ, any person
thus arrested or detained shall be judicially charged within three
days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of
graduated powers. From the most to the least benign, these are:
the calling-out power, the power to suspend the privilege of the
writ of habeas corpus, and the power to declare Martial Law.
Citing Integrated Bar of the Philippines v. Zamora,112 the Court
ruled that the only criterion for the exercise of the calling-out
power is that "whenever it becomes necessary," the President
may call the armed forces "to prevent or suppress lawless
violence, invasion or rebellion." Are these conditions present in
the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Office’s vast
intelligence network, she is in the best position to determine the
actual condition of the country.
Under the calling-out power, the President may summon the
armed forces to aid him in suppressing lawless violence, invasion
and rebellion. This involves ordinary police action. But every act
that goes beyond the President’s calling-out power is considered
illegal or ultra vires. For this reason, a President must be careful
in the exercise of his powers. He cannot invoke a greater power
when he wishes to act under a lesser power. There lies the
wisdom of our Constitution, the greater the power, the greater
are the limitations.
It is pertinent to state, however, that there is a distinction
between the President’s authority to declare a "state of
rebellion" (in Sanlakas) and the authority to proclaim a state of
national emergency. While President Arroyo’s authority to
declare a "state of rebellion" emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section
4, Chapter 2, Book II of the Revised Administrative Code of 1987,
which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or
declaring a status or condition of public moment or interest,
upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.
President Arroyo’s declaration of a "state of rebellion" was
merely an act declaring a status or condition of public moment
or interest, a declaration allowed under Section 4 cited above.
Such declaration, in the words 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 in any way render
more difficult the restoration of order and the enforcement of
law."113
In his "Statement before the Senate Committee on Justice" on
March 13, 2006, Mr. Justice Vicente V. Mendoza,114 an
authority in constitutional law, said that of the three powers of
the President as Commander-in-Chief, the power to declare
Martial Law poses the most severe threat to civil liberties. It is a
strong medicine which should not be resorted to lightly. It
cannot be used to stifle or persecute critics of the government. It
is placed in the keeping of the President for the purpose of
enabling him to secure the people from harm and to restore
order so that they can enjoy their individual freedoms. In fact,
Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the
privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of
Martial Law. It is no more than a call by the President to the
armed forces to prevent or suppress lawless violence. As such, it
cannot be used to justify acts that only under a valid declaration
of Martial Law can be done. Its use for any other purpose is a
perversion of its nature and scope, and any act done contrary to
its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and
seizures without judicial warrants; (b) ban on public assemblies;
(c) take-over of news media and agencies and press censorship;
and (d) issuance of Presidential Decrees, are powers which can
be exercised by the President as Commander-in-Chief only
where there is a valid declaration of Martial Law or suspension
of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a
declaration of Martial Law. It is merely an exercise of President
Arroyo’s calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to
ensure that the laws be faithfully executed. This is based on
Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed.
As the Executive in whom the executive power is vested,115 the
primary function of the President is to enforce the laws as well
as to formulate policies to be embodied in existing laws. He sees
to it that all laws are enforced by the officials and employees of
his department. Before assuming office, he is required to take an
oath or affirmation to the effect that as President of the
Philippines, he will, among others, "execute its laws."116 In the
exercise of such function, the President, if needed, may employ
the powers attached to his office as the Commander-in-Chief of
all the armed forces of the country,117 including the Philippine
National Police118 under the Department of Interior and Local
Government.119
Petitioners, especially Representatives Francis Joseph G.
Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza
Maza, and Josel Virador argue that PP 1017 is unconstitutional
as it arrogated upon President Arroyo the power to enact laws
and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress.
They assail the clause "to enforce obedience to all the laws and
to all decrees, orders and regulations promulgated by me
personally or upon my direction."
\
Petitioners’ contention is understandable. A reading of PP 1017
operative clause shows that it was lifted120 from Former
President Marcos’ Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article
VII, Section 10, Paragraph (2) of the Constitution, do hereby
place the entire Philippines as defined in Article 1, Section 1 of
the Constitution under martial law and, in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of
the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos
legislative power. Its enabling clause states: "to enforce
obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the
other hand, the enabling clause of PP 1017 issued by President
Arroyo is: to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon
my direction."
Is it within the domain of President Arroyo to promulgate
"decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and
decrees x x x promulgated by me personally or upon my
direction."
The President is granted an Ordinance Power under Chapter 2,
Book III of Executive Order No. 292 (Administrative Code of
1987). She may issue any of the following:
Sec. 2. Executive Orders. — Acts of the President providing for
rules of a general or permanent character in implementation or
execution of constitutional or statutory powers shall be
promulgated in executive orders.
Sec. 3. Administrative Orders. — Acts of the President which
relate to particular aspect of governmental operations in
pursuance of his duties as administrative head shall be
promulgated in administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or
declaring a status or condition of public moment or interest,
upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. — Acts of the President on
matters of administrative detail or of subordinate or temporary
interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on
matters relating to internal administration, which the President
desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government,
for information or compliance, shall be embodied in
memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines shall be issued as general or special
orders.
President Arroyo’s ordinance power is limited to the foregoing
issuances. She cannot issue decrees similar to those issued by
Former President Marcos under PP 1081. Presidential Decrees
are laws which are of the same category and binding force as
statutes because they were issued by the President in the
exercise of his legislative power during the period of Martial Law
under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional
insofar as it grants President Arroyo the authority to promulgate
"decrees." Legislative power is peculiarly within the province of
the Legislature. Section 1, Article VI categorically states that
"[t]he legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of
rebellion nor a state of emergency can justify President Arroyo’s
exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws
through the military?
As this Court stated earlier, President Arroyo has no authority to
enact decrees. It follows that these decrees are void and,
therefore, cannot be enforced. With respect to "laws," she
cannot call the military to enforce or implement certain laws,
such as customs laws, laws governing family and property
relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent
to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees,
orders, and regulations promulgated by me personally or upon
my direction; and as provided in Section 17, Article XII of the
Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the
state of national emergency under PP 1017, can call the military
not only to enforce obedience "to all the laws and to all decrees
x x x" but also to act pursuant to the provision of Section 17,
Article XII which reads:
Sec. 17. In times of national emergency, when the public interest
so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or
business affected with public interest.
What could be the reason of President Arroyo in invoking the
above provision when she issued PP 1017?
The answer is simple. During the existence of the state of
national emergency, PP 1017 purports to grant the President,
without any authority or delegation from Congress, to take over
or direct the operation of any privately-owned public utility or
business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a
product of the "martial law" thinking of the 1971 Constitutional
Convention.122 In effect at the time of its approval was
President Marcos’ Letter of Instruction No. 2 dated September
22, 1972 instructing the Secretary of National Defense to take
over "the management, control and operation of the Manila
Electric Company, the Philippine Long Distance Telephone
Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila
(and) Filipinas Orient Airways . . . for the successful prosecution
by the Government of its effort to contain, solve and end the
present national emergency."
Petitioners, particularly the members of the House of
Representatives, claim that President Arroyo’s inclusion of
Section 17, Article XII in PP 1017 is an encroachment on the
legislature’s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority
to declare "a state of national emergency" and 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
xxxxxx
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."
In G.R. No. 171396, petitioners David and Llamas alleged that, on
February 24, 2006, they were arrested without warrants on their
way to EDSA to celebrate the 20th Anniversary of People Power
I. The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune
Publishing Co., Inc. claimed that on February 25, 2006, the CIDG
operatives "raided and ransacked without warrant" their office.
Three policemen were assigned to guard their office as a
possible "source of destabilization." Again, the basis was PP
1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al.
alleged that their members were "turned away and dispersed"
when they went to EDSA and later, to Ayala Avenue, to celebrate
the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said
petitioners shows that they resulted from 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 misabused135
and may afford an opportunity for abuse in the manner of
application.136 The validity of a statute or ordinance is to be
determined from its general purpose and its efficiency to
accomplish the end desired, not from its effects in a particular
case.137 PP 1017 is merely an invocation of the President’s
calling-out power. Its general purpose is to command the AFP to
suppress all forms of lawless violence, invasion or rebellion. It
had accomplished the end desired which prompted President
Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing
the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizens’ constitutional rights.
Now, may this Court adjudge a law or ordinance
unconstitutional on the ground that its implementor committed
illegal acts? The answer is no. The criterion by which the validity
of the statute or ordinance is to be measured is the essential
basis for the exercise of power, and not a mere incidental result
arising from its exertion.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 efficient administration 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 Account144 submitted by petitioner David, certain
facts are established: first, he was arrested without warrant;
second, the PNP operatives arrested him on the basis of PP
1017; third, he was brought at Camp Karingal, Quezon City
where he was fingerprinted, photographed and booked like a
criminal suspect; fourth,he was treated brusquely by policemen
who "held his head and tried to push him" inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa
Bilang No. 880145 and Inciting to Sedition; sixth, he was
detained for seven (7) hours; and seventh,he was eventually
released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure
provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or
a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense.
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed
it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies
petitioner David’s warrantless arrest. During the inquest for the
charges of inciting to sedition and violation of BP 880, all that
the arresting officers could invoke was their observation that
some rallyists were wearing t-shirts with the invective "Oust
Gloria Now" and their erroneous assumption that petitioner
David was the leader of the rally.146 Consequently, the Inquest
Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not
wearing the subject t-shirt and even if he was wearing it, such
fact is insufficient to charge him with inciting to sedition.
Further, he also stated that there is insufficient evidence for the
charge of violation of BP 880 as it was not even known whether
petitioner David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that
not only was their right against warrantless arrest violated, but
also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably
to assemble and petition the government for redress of
grievances.
"Assembly" means a right on the part of the citizens to meet
peaceably for consultation in respect to public affairs. It is a
necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of
expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a
substantive evil that Congress has a right to prevent. In other
words, like other rights embraced in the freedom of expression,
the right to assemble is not subject to previous restraint or
censorship. It may not be conditioned upon the prior issuance of
a permit or authorization from the government authorities
except, of course, if the assembly is intended to be held in a
public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were
arrested while they were exercising their right to peaceful
assembly. They were not committing any crime, neither was
there a showing of a clear and present danger that warranted
the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and 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 Malacañang’s directive canceling all
permits previously issued by local government units. This is
arbitrary. The wholesale cancellation of all permits to rally is a
blatant disregard of the principle that "freedom of assembly is
not to be limited, much less denied, except on a showing of a
clear and present danger of a substantive evil that the State has
a right to prevent."149 Tolerance is the rule and limitation is the
exception. Only upon a showing that an assembly presents a
clear and present danger that the State may deny the citizens’
right to exercise it. Indeed, respondents failed to show or
convince the Court that the rallyists committed acts amounting
to lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and
unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies
and rallies is lodged with the local government units. They have
the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear
and present danger. Here, petitioners were not even notified
and heard on the revocation of their permits.150 The first time
they learned of it was at the time of the dispersal. Such absence
of notice is a fatal defect. When a person’s right is restricted by
government action, it behooves a democratic government to see
to it that the restriction is fair, reasonable, and according to
procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet
of freedom of speech i.e., the freedom of the press. Petitioners’
narration of facts, which the Solicitor General failed to refute,
established the following: first, 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 occupant thereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of
sufficient age and discretion residing in the same locality. And
Section 9 states that the warrant must direct that it be served in
the daytime, unless the property is on the person or in the place
ordered to be searched, in which case a direction may be
inserted that it be served at any time of the day or night. All
these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners’ freedom of the
press. The best gauge of a free and democratic society rests in
the degree of freedom enjoyed by its media. In the Burgos v.
Chief of Staff152 this Court held that --
As heretofore stated, the premises searched were the business
and printing offices of the "Metropolitan Mail" and the "We
Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the
further result that the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free,
alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and
sealed like the "Metropolitan Mail" and "We Forum"
newspapers in the above case, yet it cannot be denied that the
CIDG operatives exceeded their enforcement duties. The search
and seizure of materials for publication, the stationing of
policemen in the vicinity of the The Daily Tribune offices, and the
arrogant warning of government officials to media, are plain
censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if
allowed to do so, and no more and no less than what he is
permitted to say on pain of punishment should he be so rash as
to disobey.153 Undoubtedly, the The Daily Tribune was
subjected to these arbitrary intrusions because of its anti-
government sentiments. This Court cannot tolerate the blatant
disregard of a constitutional right even if it involves the most
defiant of our citizens. Freedom to comment on public affairs is
essential to the vitality of a representative democracy. It is the
duty of the courts to be watchful for the constitutional rights of
the citizen, and against any stealthy encroachments thereon.
The motto should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General
admitted that the search of the Tribune’s offices and the seizure
of its materials for publication and other papers are illegal; and
that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the
policemen, when inspected the Tribune for the purpose of
gathering evidence and you admitted that the policemen were
able to get the clippings. Is that not in admission of the
admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally
seized, I think and I know, Your Honor, and these are
inadmissible for any purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily
Tribune; all you have to do is to get those past issues. So why do
you have to go there at 1 o’clock in the morning and without any
search warrant? Did they become suddenly part of the evidence
of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my
instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not
based on any law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there
is nothing in 1017 which says that the police could go and
inspect and gather clippings from Daily Tribune or any other
newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know
if it is premature to say this, we do not condone this. If the
people who have been injured by this would want to sue them,
they can sue and there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the
police were, according to the Solicitor General, illegal and cannot
be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your
theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed
illegal or unlawful acts committed on the occasion of 1017, as I
said, it cannot be condoned. You cannot blame the President for,
as you said, a misapplication of the law. These are acts of the
police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and "should result in no
constitutional or statutory breaches if applied according to their
letter."
The Court has passed upon the constitutionality of these
issuances. Its ratiocination has been exhaustively presented. At
this point, suffice it to reiterate that PP 1017 is limited to the
calling out by the President of the military to prevent or
suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the military
and the police committed acts which violate the citizens’ rights
under the Constitution, this Court has to declare such acts
unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganiban’s
concurring opinion, attached hereto, is considered an integral
part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a
supervening event – would have normally rendered this case
moot and academic. However, while PP 1017 was still operative,
illegal acts were committed allegedly in pursuance thereof.
Besides, there is no guarantee that PP 1017, or one similar to it,
may not again be issued. Already, there have been media
reports on April 30, 2006 that allegedly PP 1017 would be
reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties
should not be "evaded;" they must now be resolved to prevent
future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional
insofar as it constitutes a call by the President for the AFP to
prevent or suppress lawless violence. The proclamation is
sustained by Section 18, Article VII of the Constitution and the
relevant jurisprudence discussed earlier. However, PP 1017’s
extraneous provisions giving the President express or implied
power (1) to issue decrees; (2) to direct the AFP to enforce
obedience to all 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 clear that (1) the warrantless arrest of
petitioners Randolf S. David and Ronald Llamas; (2) the dispersal
of the rallies and warrantless arrest of the KMU and NAFLU-KMU
members; (3) the imposition of standards on media or any prior
restraint on the press; and (4) the warrantless search of the
Tribune offices and the whimsical seizures of some articles for
publication and other materials, are not authorized by the
Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot
impose any civil, criminal or administrative sanctions on the
individual police officers concerned. They have not been
individually identified and given their day in court. The civil The warrantless arrest of Randolf S. David and Ronald Llamas;
complaints or causes of action and/or relevant criminal the dispersal and warrantless arrest of the KMU and NAFLU-
Informations have not been presented before this Court. KMU members during their rallies, in the absence of proof that
Elementary due process bars this Court from making any specific these petitioners were committing acts constituting lawless
pronouncement of civil, criminal or administrative liabilities. violence, invasion or rebellion and violating BP 880; the
imposition of standards on media or any form of prior restraint
It is well to remember that military power is a means to an end on the press, as well as the warrantless search of the Tribune
and substantive civil rights are ends in themselves. How to give offices and whimsical seizure of its articles for publication and
the military the power it needs to protect the Republic without other materials, are declared UNCONSTITUTIONAL.
unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state.During emergency, No costs.
governmental action may vary in breadth and intensity from
normal times, yet they should not be arbitrary as to unduly SO ORDERED.
restrain our people’s liberty.
Perhaps, the vital lesson that we must learn from the theorists
who studied the various competing political philosophies is that,
it is possible to grant government the authority to cope with
crises without surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the
governed.158
WHEREFORE, the Petitions are partly granted. The Court rules
that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call
by President Gloria Macapagal-Arroyo on the AFP to prevent or
suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless
violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP
1017 declaring national emergency under Section 17, Article VII
of the Constitution is CONSTITUTIONAL, but such declaration
does not authorize the President to take over privately-owned
public utility or business affected with public interest without
prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by
which the AFP and the PNP should implement PP 1017, i.e.
whatever is "necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence." Considering that
"acts of terrorism" have not yet been defined and made
punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.

G.R. No. 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.
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 ten (10) million
Filipinos voted for the petitioner believing he would rescue them
from life's 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 Governor, 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 exposẻ 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 exposẻ 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 Services6 and later asked for petitioner's
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 Impeachment11 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 Fuentebella.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 Tañada, 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
Flaminiano, 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 petitioner's 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 11-1017 the senator-judges ruled against the
opening of the second envelope 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
petitioner's 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 people's solidarity in demanding petitioner's
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 envelope.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 Malacañang'' 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 Malacañang
Palace.29 He issued the following press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock 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 Malacañang 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 to
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 20.23 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 the 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 Resolve 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 of Vice President Gloria Macapagal-
Arroyo as President of the Philippines, at noon of January 20,
2001.1âwphi1.nêt
This resolution is without prejudice to the disposition of any
justiciable case that may be filed by a proper party."
Respondent Arroyo appointed members of her Cabinet as well
as ambassadors and special envoys.34 Recognition of
respondent Arroyo's government by foreign governments swiftly
followed. On January 23, in a reception or vin d' honneur at
Malacañang, 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 nation's 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 Osmena voted
"yes" with reservations, citing as reason therefor the pending
challenge on the legitimacy of respondent Arroyo's presidency
before the Supreme Court. Senators Teresa Aquino-Oreta and
Robert Barbers were absent.44 The House of Representatives
also approved Senator Guingona's nomination in Resolution No.
178.45 Senator Guingona, Jr. 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
Arroyo's 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 class, and 54% among the E's or very poor class.50
After his fall from the pedestal of power, the petitioner's 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 Panganiban52 recused themselves
on motion of petitioner's 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 question but its exact latitude still splits the best of legal minds.
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 is one of 'political questions', not of 'political cases'."
Whether or not the cases
At bar involve a political question
Private respondents54 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
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 of 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 or Baker v. Carr,56 viz:
"x x x Prominent 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 non-
judicial 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 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 question's presence. The doctrine of which we treat
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, not legality
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 not's" 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 cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government
of respondent Arroyo, ergo, they present a political question. A
more cerebral reading of the cited cases will 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 Constitution63 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." In 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 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 a 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 197368 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 people's 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 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 similar 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 875 of Article VII,
and the allocation of governmental powers under section 1176
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,
respondent's in vocation of the doctrine of political question 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 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 act as President until the 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 Public.
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
government 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 show that petitioner did not write
any formal letter of resignation before he evacuated
Malacañang 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 act 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 exposẻ of Governor Singson. The Senate Blue Ribbon
Committee investigated. The more detailed revelations of
petitioner's 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, petitioner's 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 people's
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 the morning of
January 19, petitioner's loyal advisers were worried about the
swelling of the crowd at EDSA, hence, they decided to create 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 AFP's 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 not 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 be 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 (let's 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 petitioner's 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:
"x x x
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 don't want any more of this – it's too painful. I'm
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:
"Opposition's deal
7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's
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 to day, 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 authority effective immediately.
4. The Armed Forced 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 guarantee 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 sitting
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 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.
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 couldn't you wait? What about the agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and academic na?'
And General Reyes answers: ' Oo nga, I delete na natin, sir (yes,
we're deleting the 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 provisions 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 President's personal staff is rushing to pack as many
of the Estrada family's personal possessions as they can.
During lunch, Ronnie Puno mentions that the president needs to
release a final statement before leaving Malacañang.
The statement reads: At twelve o'clock 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 Malacañang 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 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 Malacañang. In the
press release containing his final statement, (1) he
acknowledged the oath-taking of the respondent as President of
the Republic albeit with 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 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. Petitioner's
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 petitioner's valedictory, his final act of farewell. His
presidency is now in the part tense.
It is, however, urged that the petitioner did not resign but only
took a temporary leave 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, may 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 bearing.
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 as a later act. If,
however, it was prepared after the press released, still, it
commands scant legal significance. Petitioner's 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
reputation by the people. There is another reason why this Court
cannot given any legal significance to petitioner's 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, criminals 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
form 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 form 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 President's immunity should extend after
his tenure.
Senate Bill No. 571, which was substantially similar 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 petitioner's 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 petitioner's 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 transmits 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:
Petitioner, on January 20, 2001, sent the above letter claiming
inability to the Senate President and Speaker of the House;
Unaware of the letter, respondent Arroyo took her oath of office
as President on January 20, 2001 at about 12:30 p.m.;
Despite receipt of the letter, the House of Representatives
passed on January 24, 2001 House Resolution No. 175;96
On the same date, the House of the Representatives passed
House Resolution No. 17697 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
NATION'S GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the people's 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 surrending 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 Nation's 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. 17898 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-
ARROYO'S 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 petitioner's 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 resolve
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 and overcome the nation's challenges." 99
On February 7, the Senate also passed Senate Resolution No.
82100 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL
ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR.
AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is 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, 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 statemanship, 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. 83101 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
on 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 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 petitioner's 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
Tañada v. Cuenco,102 we hold that this Court cannot exercise its
judicial power or this is an issue "in regard to which full
discretionary authority has been delegated to the Legislative xxx
branch of the government." Or to use the language in Baker vs.
Carr,103 there is a "textually demonstrable or a lack of judicially
discoverable and manageable standards for resolving it." Clearly,
the Court cannot pass upon petitioner's claim of inability to
discharge the power 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 petitioner's contentions, a revisit of our legal
history 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
Crosfield,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
n remedy, but must submit in silence. On the contrary, it means,
simply, that the governors-general, like the judges if 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 mater 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 than it can a member
of the Philippine Commission of 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
exercised 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 judgement, that is, the judicial
faculty, in determining whether he had authority to act or not. In
other words, 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 s 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, be 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 "xxx. 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 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 King's Men: The Law of
Privilege As a Defense To Actions For Damages,"106 petitioner's
learned counsel, former Dean of the UP College of Law, Atty.
Pacificao Agabin, brightened 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
form 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 them 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 vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the Committee's 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 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 litigation's, as the President-in-exile in Hawaii
is now facing litigation's 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 think the Commissioner for the clarifications."
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 judgement 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 Re: Saturnino Bermudez111
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 on the case of Lecaroz
vs. Sandiganbayan112 and related cases113 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 alleged 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 conditions. 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 trespasser.114
Indeed, 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 Nixon's associates were facing charges of
conspiracy to obstruct Justice and other offenses, which were
committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972
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. Jones117 where it held that the US President's
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 "the
State shall maintain honesty and integrity in the public service
and take positive and effective measures against graft and
corruptio."119 it ordained that "public officers and employees
must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with
patriotism and justice, and lead modest lives."120 It set the rule
that 'the 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, latches 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 "investigate 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 petitioner's
claim that a non-sitting president enjoys immunity from suit for
criminal acts committed during his incumbency.
V
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 file the criminal cases 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 appellant's 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 rule that the right of an accused to a fair trial
is not incompatible to a free press. To be sure, responsible
reporting enhances accused's right to a fair trial for, as well
pointed out, a responsible press has always been regarded as
the criminal field xxx. 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 there impartially. xxx xxx xxx. Our
judges are learned in the law and trained to disregard off-court
evidence and on-camera performances of parties to 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 a bar, the records do not show that
the trial judge developed actual bias against appellants 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 of change even
by evidence presented during the trial. Appellant has the burden
to prove this actual bias and he has not discharged the burden.'
We expounded further on this doctrine in the subsequent case
of Webb vs. Hon. Raul de 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. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, it was
xxx
The historical evidence of the evolution of the criminal trial in
Anglo-American justice demonstrates conclusively that at the
time this Nation's 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 society's 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 Nation's system of
justice, Cf., e,g., Levine v. United States, 362 US 610, 4 L Ed 2d
989, 80 S Ct 1038.
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
freedom 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 the
draftsmen deliberately linked it. 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.
Even though the Constitution contains no provision which be 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 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.1âwphi1.nêt
The records show that petitioner has instead charged
respondent Ombudsman himself with bias. To quote petitioner's
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
petitioner133 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 investigation 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 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
findings 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 man's progress from the cave to
civilization. Let us not throw away that key just to pander to
some people's 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.
[G.R. Nos. 146710-15. April 3, 2001.]
JOSEPH E. ESTRADA, Petitioner, v. 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., Respondents.
[G.R. No. 146738. April 3, 2001.]
JOSEPH E. ESTRADA, Petitioner, v. GLORIA MACAPAGAL-
ARROYO, Respondent.
RESOLUTION
PUNO, J.:
For resolution are petitioner’s Motion for Reconsideration in
G.R. Nos. 146710-15 and Omnibus Motion in G.R. No. 146738 of
the Court’s Decision of March 2, 2001.
In G.R. Nos. 146710-15, petitioner raises the following
grounds:jgc:chanrobles.com.ph
"I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS
OF ART. XI, SECTION 3 (7) OF THE CONSTITUTION AND THE
SETTLED JURISPRUDENCE THEREON.chanrob1es virtua1 1aw
1ibrary
II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW,
FOR THIS RULING WOULD VIOLATE THE DOUBLE JEOPARDY
CLAUSE OF THE CONSTITUTION, CONSIDERING THAT PETITIONER
WAS ACQUITTED IN THE IMPEACHMENT PROCEEDINGS.
III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO
ABSOLUTE IMMUNITY FROM SUIT.
IV. IT HELD THAT PETITIONER’S DUE PROCESS RIGHTS TO A
FAIR TRIAL HAVE NOT BEEN PREJUDICED BY PRE-TRIAL
PUBLICITY.
V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO
WARRANT THE COURT TO ENJOIN THE PRELIMINARY
INVESTIGATION OF THE INCUMBENT OMBUDSMAN, PETITIONER
HAVING FAILED TO PROVE THE IMPAIRED CAPACITY OF THE
OMBUDSMAN TO RENDER A BIASED FREE DECISION."cralaw
virtua1aw library
In G.R. No. 146738, petitioner raises and argues the following
issues:chanrob1es virtual 1aw library
1. WHETHER PETITIONER RESIGNED OR SHOULD BE
CONSIDERED RESIGNED AS OF JANUARY 20, 2001;
2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR
BEING VIOLATIVE OF THE FOLLOWING RULES ON EVIDENCE:
HEARSAY, BEST EVIDENCE, AUTHENTICATION, ADMISSIONS AND
RES INTER ALIOS ACTA;
3. WHETHER RELIANCE ON NEWSPAPER ACCOUNTS IS
VIOLATIVE OF THE HEARSAY RULE;
4. WHETHER CONGRESS POST FACTO CAN DECIDE
PETITIONER’S INABILITY TO GOVERN CONSIDERING SECTION 11,
ARTICLE VII OF THE CONSTITUTION; and
5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED
PETITIONER’S RIGHT TO FAIR TRIAL.
We find the contentions of petitioner bereft of merit.
I under the name "Jose Velarde" ; (17) the prosecutors’ walkout
Prejudicial Publicity on the Court
Petitioner insists he is the victim of prejudicial publicity. Among
others, he assails the Decision for adverting to newspaper
accounts of the events and occurrences to reach the conclusion
that he has resigned. In our Decision, we used the totality test to
arrive at the conclusion that petitioner has resigned. We
referred to and analyzed events that were prior,
contemporaneous and posterior to the oath-taking of
respondent Arroyo as president. All these events are facts which
are well-established and cannot be refuted. Thus, we adverted
to prior events that built up the irresistible pressure for the
petitioner to resign. These are: (1) the exposé of Governor Luis
"Chavit" Singson on October 4, 2000; (2) the "I accuse" speech of
then Senator Teofisto Guingona in the Senate; (3) the joint
investigation of the speech of Senator Guingona by the Blue
Ribbon Committee and the Committee on Justice; (4) the
investigation of the Singson exposé by the House Committee on
Public Order and Security; (5) the move to impeach the
petitioner in the House of Representatives; (6) the Pastoral
Letter of Archbishop Jaime Cardinal Sin demanding petitioner’s
resignation; (7) a similar demand by the Catholic Bishops
Conference; (8) the similar demands for petitioner’s resignation
by former Presidents Corazon C. Aquino and Fidel V. Ramos; (9)
the resignation of respondent Arroyo as Secretary of the DSWD
and her call for petitioner to resign; (10) the resignation of the
members of petitioner’s Council of Senior Economic Advisers
and of Secretary Mar Roxas III from the Department of Trade
and Industry; (11) the defection of then Senate President
Franklin Drilon and then Speaker of the House of
Representatives Manuel Villar and forty seven (47)
representatives from petitioner’s Lapiang Masang Pilipino; (12)
the transmission of the Articles of Impeachment by Speaker
Villar to the Senate; (13) the unseating of Senator Drilon as
Senate President and of Representative Villar as Speaker of the
House; (14) the impeachment trial of the petitioner; (15) the
testimonies of Clarissa Ocampo and former Finance Secretary
Edgardo Espiritu in the impeachment trial; (16) the 11-10 vote of
the senator-judges denying the prosecutor’s motion to open the
2nd envelope which allegedly contained evidence showing that
petitioner held a P3.3 billion deposit in a secret bank account
and resignation; (18) the indefinite postponement of the
impeachment proceedings to give a chance to the House of
Representatives to resolve the issue of resignation of their
prosecutors; (19) the rally in the EDSA Shrine and its
intensification in various parts of the country; (20) the
withdrawal of support of then Secretary of National Defense
Orlando Mercado and the then Chief-of-Staff General Angelo
Reyes together with the chiefs of all the armed services; (21) the
same withdrawal of support made by the then Director General
of the PNP; General Panfilo Lacson, and the major service
commanders; (22) the stream of resignations by Cabinet
secretaries, undersecretaries, assistant secretaries and bureau
chiefs; (23) petitioner’s agreement to hold a snap election and
opening of the controversial second envelope. All these prior
events are facts which are within judicial notice by this Court.
There was no need to cite their news accounts. The reference by
the Court to certain newspapers reporting them as they
happened does not make them inadmissible evidence for being
hearsay. The news account only buttressed these facts as facts.
For all his loud protestations, petitioner has not singled out any
of these facts as false.
We now come to some events of January 20, 2001
contemporaneous to the oath taking of respondent Arroyo. We
used the Angara Diary to decipher the intent to resign on the
part of the petitioner. Let it be emphasized that it is not unusual
for courts to distill a person’s subjective intent from the
evidence before them. Everyday, courts ascertain intent in
criminal cases, in civil law cases involving last will and
testaments, in commercial cases involving contracts and in other
similar cases. As will be discussed below, the use of the Angara
Diary is not prohibited by the hearsay rule. Petitioner may
disagree with some of the inferences arrived at by the Court
from the facts narrated in the Diary but that does not make the
Diary inadmissible as evidence.
We did not stop with the contemporaneous events but
proceeded to examine some events posterior to the oath-taking
of respondent Arroyo. Specifically, we analyzed the all important
press release of the petitioner containing his final statement
which was issued after the oath-taking of respondent Arroyo as
president. After analyzing its content, we ruled that petitioner’s
issuance of the press release and his abandonment of
Malacañang Palace confirmed his resignation. 1 These are overt
acts which leave no doubt to the Court that the petitioner has
resigned.
In light of this finding that petitioner has resigned before 12
o’clock noon of January 20, 2001, the claim that the office of the
President was not vacant when respondent Arroyo took her oath
of office at half past noon at the same day has no leg to stand
on.
We also reject the contention that petitioner’s resignation was
due to duress and an involuntary resignation is no resignation at
all.
". . . [I]t has been said that, in determining whether a given
resignation is voluntarily tendered, the element of voluntariness
is vitiated only when the resignation is submitted under duress
brought on by government action. The three-part test for such
duress has been stated as involving the following elements: (1)
whether one side involuntarily accepted the other’s terms; (2)
whether circumstances permitted no other alternative; and (3)
whether such circumstances were the result of coercive acts of
the opposite side. The view has also been expressed that a
resignation may be found involuntary if on the totality of the
circumstances it appears that the employer’s conduct in
requesting resignation effectively deprived the employer of free
choice in the matter. Factors to be considered, under this test,
are: (1) whether the employee was given some alternative to
resignation; (2) whether the employee understood the nature of
the choice he or she was given; (3) whether the employee was
given a reasonable time in which to choose; and (4) whether he
or she was permitted to select the effective date of resignation.
In applying this totality of the circumstances test, the
assessment whether real alternatives were offered must be
gauged by an objective standard rather than by the employee’s
purely subjective evaluation; that the employee may perceive
his or her only option to be resignation — for example, because
of concerns about his or her reputation — is irrelevant. Similarly,
the mere fact that the choice is between comparably unpleasant
alternative — for example, resignation or facing disciplinary
charges — does not of itself establish that a resignation was
induced by duress or coercion, and was therefore involuntary.
This is so even where the only alternative to resignation is facing
possible termination for cause, unless the employer actually
lacked good cause to believe that grounds for termination
existed. In this regard it has also been said that a resignation
resulting from a choice between resigning or facing proceedings
for dismissal is not tantamount to discharge by coercion without
procedural view if the employee is given sufficient time and
opportunity for deliberation of the choice posed. Furthermore, a
resignation by an officer charged with misconduct is not given
under duress, though the appropriate authority has already
determined that the officer’s alternative is termination, where
such authority has the legal authority to terminate the officer’s
employment under the particular circumstances, since it is not
duress to threaten to do what one has the legal right to do, or to
threaten to take any measure authorized by law and the
circumstances of the case." 2
In the cases at bar, petitioner had several options available to
him other than resignation. He proposed to the holding of snap
elections. He transmitted to the Congress a written declaration
of temporary inability. He could not claim he was forced to
resign because immediately before he left Malacañang, he asked
Secretary Angara: "Ed, aalis na ba ako?" which implies that he
still has a choice of whether or not to leave.chanrob1es virtua1
1aw 1ibrary
To be sure, pressure was exerted for the petitioner to resign. But
it is difficult to believe that the pressure completely vitiated the
voluntariness of the petitioner’s resignation. The Malacañang
ground was then fully protected by the Presidential Security
Guard armed with tanks and high-powered weapons. The then
Chief of Staff, General Angelo Reyes, and other military officers
were in Malacañang to assure that no harm would befall the
petitioner as he left the Palace. Indeed, no harm, not even a
scratch, was suffered by the petitioner, the members of his
family and his Cabinet who stuck it out with him in his last hours.
Petitioner’s entourage was even able to detour safely to the
Municipal Hall of San Juan and bade goodbye to his followers
before finally going to his residence in Polk Street, Greenhills.
The only incident before the petitioner left the Palace was the
stone throwing between a small group of pro and anti Erap
rallyists which resulted in minor injuries to a few of them.
Certainly, there were no tanks that rumbled through the Palace,
no attack planes that flew over the presidential residence, no
shooting, no large scale violence, except verbal violence, to
justify the conclusion that petitioner was coerced to resign.
II
Evidentiary
Issues
Petitioner devotes a large part of his arguments on the alleged
improper use by this Court of the Angara Diary. It is urged that
the use of the Angara Diary to determine the state of mind of
the petitioner on the issue of his resignation violates the rule
against the admission of hearsay evidence.
We are unpersuaded. To begin with, the Angara Diary is not an
out of court statement. The Angara Diary is part of the pleadings
in the cases of bar. Petitioner cannot complain he was not
furnished a copy of the Angara Diary. Nor can he feign surprise
on its use. To be sure, the said Diary was frequently referred to
by the parties in their pleadings. 3 The three parts of the Diary
published in the PDI from February 4-6, 2001 were attached as
Annexes A-C, respectively, of the Memorandum of private
respondents Romeo T. Capulong, Et Al., dated February 20,
2001. The second and third parts of the Diary were earlier also
attached as Annexes 12 and 13 of the Comment of private
respondents Capulong, Et Al., dated February 12, 2001. In fact,
petitioner even cited in his Second Supplemental Reply
Memorandum both the second part of the diary, published on
February 5, 2001, 4 and the third part, published on February 6,
2001. 5 It was also extensively used by Secretary of Justice
Hernando Perez in his oral arguments. Thus, petitioner had all
the opportunity to contest the use of the Diary but
unfortunately failed to do so.
Even assuming arguendo that the Angara Diary was an out of
court statement, still its use is not covered by the hearsay rule. 6
Evidence is called hearsay when its probative force depends, in
whole or in part, on the competency and credibility of some
persons other than the witness by whom it is sought to produce
it. 7 There are three reasons for excluding hearsay evidence: (1)
absence of cross-examination; (2) absence of demeanor
evidence, and (3) absence of the oath. 8 Not all hearsay
evidence, however, is inadmissible as evidence. Over the years, a
huge body of hearsay evidence has been admitted by courts due
to their relevance, trustworthiness and necessity. 9 The
emergence of these exceptions and their wide spread
acceptance is well-explained by Weinstein, Mansfield, Abrams
and Berger as follows:jgc:chanrobles.com.ph
"x x x
On the other hand, we all make decisions in our everyday lives
on the basis of other persons’ accounts of what happened, and
verdicts are usually sustained and affirmed even if they are
based on hearsay erroneously admitted, or admitted because no
objection was made. See Shepp v. Uehlinger, 775 F 2d 452, 454-
455 (1st Cir. 1985) (hearsay evidence alone can support a
verdict). Although volumes have been written suggesting ways
to revise the hearsay rule, no one advocates a rule that would
bar all hearsay evidence. Indeed, the decided historical trend has
been to exclude categories of highly probative statements from
the definition of hearsay (sections 2 and 3, infra), and to develop
more class exceptions to the hearsay rule (sections 4-11, infra).
Furthermore, many states have added to their rules the residual,
or catch-all, exceptions first pioneered by the Federal Rules
which authorize the admission of hearsay that does not satisfy a
class exception, provided it is adequately trustworthy and
probative (section 12, infra).
Moreover, some commentators believe that the hearsay rule
should be abolished altogether instead of being loosened. See,
e.g., Note, The Theoretical Foundation of the Hearsay Rules, 93
Harv. L. Rev. 1786, 1804-1805, 1815 (1980) (footnotes
omitted):chanrob1es virtual 1aw library
The Federal Rules of Evidence provide that ‘[a]lthough relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.’ Under this
structure, exclusion is justified by fears of how the jury will be
influenced by the evidence. However, it is not traditional to think
of hearsay as merely a subdivision of this structure, and the
Federal Rules do not conceive of hearsay in that manner.
Prejudice refers to the jury’s use of evidence for inferences other
than those for which the evidence is legally relevant; by
contract, the rule against hearsay questions the jury’s ability to
evaluate the strength of a legitimate inference to be drawn from
the evidence. For example, were a judge to exclude testimony
because a witness was particularly smooth or convincing, there
would be no doubt as to the usurpation of the jury’s function.
Thus, unlike prejudices recognized by the evidence rules, such as
those stemming from racial or religious biases or from the
introduction of photographs of a victim’s final state, the
exclusion of hearsay on the basis of misperception strikes at the
root of the jury’s function by usurping its power to process quite
ordinary evidence, the type of information routinely
encountered by jurors in their everyday lives.
x x x
Since virtually all criteria seeking to distinguish between good
and bad hearsay are either incoherent, inconsistent, or
indeterminate, the only alternative to a general rule of
admission would be an absolute rule of exclusion, which is surely
inferior. More important, the assumptions necessary to justify a
rule against hearsay . . . seem insupportable and, in any event,
are inconsistent with accepted notions of the function of the
jury. Therefore, the hearsay rules should be abolished.
Some support for this view can be found in the limited empirical
research now available — which is, however, derived from
simulations — that suggests that admitting hearsay has little
effect on trial outcomes because jurors discount the value of
hearsay evidence. See Rakos & Landsman, Researching the
Hearsay Rule: Emerging Findings, General Issues, and Future
Directions, 76 Minn.L.Rev. 655 (1992); Miene, Park, & Borgidas,
Jury Decision Making and the Evaluation of Hearsay Evidence, 76
Minn.L.Rev. 683 (1992); Kovera, Park & Penrod, Jurors’
Perceptions of Eyewitness and Hearsay Evidence, 76 Minn.L.Rev.
703 (1992); Landsman & Rakos, Research Essay: A Preliminary
Empirical Enquiry Concerning the prohibition of Hearsay
Evidence in American Courts, 15 Law & Psychol.Rev. 65 (1991).
Others, even if they concede that restrictions on hearsay have
some utility, question whether the benefits outweigh the
cost:chanrob1es virtual 1aw library
The cost of maintaining the rule is not just a function of its
contribution to justice. It also includes the time spent on
litigating the rule. And of course this is not just a cost voluntarily
borne by the parties, for in out system virtually all the cost of the
court — salaries, administrative costs, and capital costs — are
borne by the public. As expensive as litigation is for the parties,
it is supported by an enormous public subsidy. Each time a
hearsay question is litigated, the public pays. The rule imposes
other costs as well. Enormous time is spent teaching and writing
about the hearsay rule, which are both costly enterprises. In
some law schools, students spend over half their time in
evidence classes learning the intricacies of the hearsay rule, and
. . . enormous academic resources are expended on the rule.
Allen, Commentary on Professor Friendman’s Article: The
Evolution of the Hearsay Rule to a Rule of Admission, 76
Minn.L.Rev. 797, 800 [1992] (but would abolish rule only in civil
cases). See also Friedman, Toward a Partial Economic, Game —
Theoretic Analysis of Hearsay, 76 Minn.L.Rev. 723 (1992)." 10
A complete analysis of any hearsay problem requires that we
further determine whether the hearsay evidence is one
exempted from the rules of exclusion. A more circumspect
examination of our rules of exclusion will show that they do not
cover admissions of a party and the Angara Diary belongs to this
class. Section 26 of Rule 130 provides that "the act, declaration
or omission of a party as to a relevant fact may be given in
evidence against him." 11 It has long been settled that these
admissions are admissible even if they are hearsay. Retired
Justice Oscar Herrera of the Court of Appeals cites the various
authorities who explain why admissions are not covered by the
hearsay rule: 12
"Wigmore, after pointing out that the party’s declaration has
generally the probative value of any other person’s assertion,
argued that it had a special value when offered against the
party. In that circumstance, the admission discredits the party’s
statement with the present claim asserted in pleadings and
testimony, much like a witness impeached by contradictory
statements. Moreover, he continued, admissions pass the
gauntlet of the hearsay rule, which requires that extrajudicial
assertions be excluded if there was no opportunity for the
opponent to cross-examine because it is the opponent’s own
declaration, and ‘he does not need to cross-examine himself .’
Wigmore then added that the Hearsay Rules is satisfied since the
party now as opponent has the full opportunity to put himself on
the stand and explain his former assertion. (Wigmore on
Evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec. 154,
McCormick)
According to Morgan: ‘The admissibility of an admission made
by the party himself rests not upon any notion that the
circumstances in which it was made furnish the trier means of
evaluating it fairly, but upon the adversary theory of litigation. A
party can hardly object that he had no opportunity to cross-
examine himself or that he is unworthy of credence save when
speaking under sanction of an oath.’
A man’s acts, conduct, and declaration, wherever made, if
voluntary, are admissible against him, for the reason that it is
fair to presume that they correspond with the truth, and it is his
fault if they do not. (U. S . v. Ching Po, 23 Phil. 578, 583)."cralaw
virtua1aw library
The Angara Diary contains direct statements of petitioner which
can be categorized as admissions of a party: his proposal for a
snap presidential election where he would not be a candidate;
his statement that he only wanted the five-day period promised
by Chief of Staff Angelo Reyes; his statements that he would
leave by Monday if the second envelope would be opened by
Monday and "Pagod na pagod na ako. Ayoko na, masyado nang
masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am
very tired. I don’t want any more of this — it’s too painful. I’m
tired of the red tape, the bureaucracy, the intrigue). I just want
to clear my name, then I will go." We noted that days before,
petitioner has repeatedly declared that he would not resign
despite the growing clamor for his resignation. The reason for
the meltdown is obvious — his will not to resign has wilted.
It is, however, argued that the Angara Diary is not the diary of
the petitioner, hence, non-binding on him. The argument
overlooks the doctrine of adoptive admission. An adoptive
admission is a party’s reaction to a statement or action by
another person when it is reasonable to treat the party’s
reaction as an admission of something stated or implied by the
other person. 13 Jones explains that the "basis for admissibility
of admissions made vicariously is that arising from the
ratification or adoption by the party of the statements which the
other person had made." 14 To use the blunt language of
Mueller and Kirkpatrick, this process of attribution is not mumbo
jumbo but common sense." 15 In the Angara Diary, the options
of the petitioner started to dwindle when the armed forces
withdrew its support from him as President and commander-in-
chief. Thus, Executive Secretary Angara had to ask Senate
President Pimentel to advise petitioner to consider the option of
"dignified exit or resignation." Petitioner did not object to the
suggested option but simply said he could never leave the
country. Petitioner’s silence on this and other related
suggestions can be taken as an admission by him. 16
Petitioner further contends that the use of the Angara Diary
against him violated the rule on res inter alios acta. The rule is
expressed in section 28 of Rule 130 of the Rules of Court, viz:
"The rights of a party cannot be prejudiced by an act,
declaration, or omission of another, except as hereinafter
provided."cralaw virtua1aw library
Again, petitioner errs in his contention. The res inter alios acta
rule has several exceptions. One of them is provided in section
29 of Rule 130 with respect to admissions by a co-partner or
agent.
Executive Secretary Angara as such was an alter ego of the
petitioner. He was the Little President. Indeed, he was
authorized by the petitioner to act for him in the critical hours
and days before he abandoned Malacañang Palace. Thus,
according to the Angara Diary, the petitioner told Secretary
Angara: "Mula umpisa pa lang ng kampanya, Ed, ikaw na lang
pinakikinggan ko. At hanggang sa huli, ikaw pa rin." (Since the
start of the campaign, Ed, you have been the only one I’ve
listened to. And now at the end, you still are.)" 17 This
statement of full trust was made by the petitioner after
Secretary Angara briefed him about the progress of the first
negotiation. True to this trust, the petitioner had to ask
Secretary Angara if he would already leave Malacañang after
taking their final lunch on January 20, 2001 at about 1:00 p.m.
The Angara Diary quotes the petitioner as saying to Secretary
Angara: "Ed, kailangan ko na bang umalis? (Do I have to leave
now?)" 18 Secretary Angara told him to go and he did. Petitioner
cannot deny that Secretary Angara headed his team of
negotiators that met with the team of the respondent Arroyo to
discuss the peaceful and orderly transfer of power after his
relinquishment of the powers of the presidency. The Diary
shows that petitioner was always briefed by Secretary Angara on
the progress of their negotiations. Secretary Angara acted for
and in behalf of the petitioner in the crucial days before
respondent Arroyo took her oath as President. Consequently,
petitioner is bound by the acts and declarations of Secretary
Angara.
Under our rules of evidence, admissions of an agent (Secretary
Angara) are binding on the principal (petitioner). 19 Jones very
well explains the reasons for the rule, viz: "What is done, by
agent, is done by the principal through him, as through a mere
instrument. So, whatever is said by an agent, either in making a
contract for his principal, or at the time and accompanying the
performance of any act within the scope of his authority, having
relation to, and connected with, and in the course of the
particular contract or transaction in which he is then engaged, or
in the language of the old writers, dum fervet opus is, in legal
effect, said by his principal and admissible in evidence against
such principal." 20
Moreover, the ban on hearsay evidence does not cover
independently relevant statements. These are statements which
are relevant independently of whether they are true or not. They
belong to two (2) classes: (1) those statements which are the
very facts in issue, and (2) those statements which are
circumstantial evidence of the facts in issue. The second class
includes the following: 21
a. Statement of a person showing his state of mind, that
is, his mental condition, knowledge, belief, intention, ill will and
other emotions;
b. Statements of a person which show his physical
condition, as illness and the like;
c. Statement of a person from which an inference may be
made as to the state of mind of another, that is, the knowledge,
belief, motive, good or bad faith, etc. of the latter;
d. Statements which may identify the date, place and
person in question; and
e. Statements showing the lack of credibility of a
witness.chanrob1es virtua1 1aw 1ibrary
Again, Jones tells us why these independently relevant
statements are not covered by the prohibition against hearsay
evidence: 22
" §1088. Mental State or Condition — Proof of Knowledge. —
There are a number of common issues, forming a general class,
in proof of which hearsay is so obviously necessary that it is not
customary to refer to its admissibility as by virtue of any
exception to the general exclusionary rule. Admissibility, in such
cases, is as of course. For example, where any mental state or
condition is in issue, such as motive, malice, knowledge, intent,
assent or dissent, unless direct testimony of the particular
person is to be taken as conclusive of his state of mind, the only
method of proof available is testimony of others to the acts or
statements of such person. Where his acts or statements are
against his interest, they are plainly admissible within the rules
hereinabove announced as to admissions against interest. And
even where not against interest, if they are so closely connected
with the event or transaction in issue as to constitute once of
the very facts in controversy, they become admissible of
necessity."cralaw virtua1aw library
As aforediscussed, the Angara Diary contains statements of the
petitioner which reflect his state of mind and are circumstantial
evidence of his intent to resign. It also contains statements of
Secretary Angara from which we can reasonably deduce
petitioner’s intent to resign. They are admissible and they are
not covered by the rule on hearsay. This has long been a quiet
area of our law on evidence and petitioner’s attempt to foment
a belated tempest cannot receive our imprimatur.
Petitioner also contends that the rules on authentication of
private writings and best evidence were violated in our Decision,
viz:jgc:chanrobles.com.ph
"The use of the Angara Diary palpably breached several
hornbook rules of evidence, such as the rule on authentication
of private writings . . .
x x x be produced in court, without bad faith on the part of the
A. Rule on Proof of Private Writings Violated
The rule governing private documents as evidence was violated.
The law provides that before any private writing offered as
authentic is received in evidence, its due execution and
authenticity must be proved either: a) by anyone who saw the
document executed or written, or b) by evidence of the
genuineness of the signature or handwriting of the maker.
x x x (d)
B. Best Evidence Rule Infringed
Clearly, the newspaper reproduction is not the best evidence of
the Angara diary. It is secondary evidence, of dubious
authenticity. It was however used by this Honorable Court
without proof of the unavailability of the original or duplicate
original of the diary. The "Best Evidence Rules" should have been
applied since the contents of the diary are the subject of inquiry.
The rule is that, except in four (4) specific instances," [w]hen the
subject of inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself." 23
Petitioner’s contention is without merit. In regard to the Best
Evidence rule, the Rules of Court provides in sections 2 to 4 of
Rule 130, as follows:jgc:chanrobles.com.ph
"SECTION 2. Documentary evidence. — Documents as
evidence consist of writings or any material containing letters,
words, numbers, figures or other modes of written expressions
offered as proof of their contents.
SECTION 3. Original document must be produced; exceptions. —
When the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document
itself, except in the following cases:chanrob1es virtual 1aw
library
(a) When the original has been lost or destroyed, or cannot
offeror;
(b) When the original is in the custody or under the control
of the party against whom the evidence is offered, and the latter
fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or
other documents which cannot be examined in court without
great loss of time and the fact sought to be established from
them is only the general result of the whole; and
When the original is a public record in the custody of a
public officer or is recorded in a public office.

SECTION 4. Original of document. — (a) The original of a
document is one the contents of which are the subject of
inquiry.
(b) When a document is in two or more copies executed at
or about the same time, with identical contents, all such copies
are equally regarded as originals.
(c) When an entry is repeated in the regular course of
business, one being copied from another at or near the time of
the transaction, all the entries are likewise equally regarded as
originals."cralaw virtua1aw library
It is true that the Court relied not upon the original but only a
copy of the Angara Diary as published in the Philippine Daily
Inquirer on February 4-6, 2001. In doing so, the Court, did not,
however, violate the best evidence rule. Wigmore, in his book on
evidence, states that:jgc:chanrobles.com.ph
"Production of the original may be dispensed with, in the trial
court’s discretion, whenever in the case in hand the opponent
does not bona fide dispute the contents of the document and no
other useful purpose will be served by requiring production. 24
x x x
"In several Canadian provinces, the principle of unavailability has
been abandoned, for certain documents in which ordinarily no
real dispute arose. This measure is a sensible and progressive
one and deserved universal adoption (post, sec. 1233). Its
essential feature is that a copy may be used unconditionally, if
the opponent has been given an opportunity to inspect it."
(Emphasis supplied)
Francisco’s opinion is of the same tenor,
viz:jgc:chanrobles.com.ph
"Generally speaking, an objection by the party against whom
secondary evidence is sought to be introduced is essential to
bring the best evidence rule into application; and frequently,
where secondary evidence has been admitted, the rule of
exclusion might have successfully been invoked if proper and
timely objection has been taken. No general rule as to the form
or mode of objecting to the admission of secondary evidence is
set forth. Suffice it to say here that the objection should be
made in proper season — that is, whenever it appears that there
is better evidence than that which is offered and before the
secondary evidence has been admitted. The objection itself
should be sufficiently definite to present a tangible question for
the court’s consideration."25cralaw:red
He adds:jgc:chanrobles.com.ph
"Secondary evidence of the content of the writing will be
received in evidence if no objection is made to its reception." 26
In regard to the authentication of private writings, the Rules of
Court provides in section 20 of Rule 132,
viz:jgc:chanrobles.com.ph
"SECTION 20. Proof of private document. — Before any
private document offered as authentic is received in evidence,
its due execution and authenticity must be proved
either:chanrob1es virtual 1aw library
(a) By anyone who saw the document executed or written;
or
(b) By evidence of the genuineness of the signature or
handwriting of the maker.
Any other private document need only be identified as that
which it is claimed to be."cralaw virtua1aw library
On the rule of authentication of private writings, Francisco states
that:jgc:chanrobles.com.ph
"A proper foundation must be laid for the admission of
documentary evidence; that is, the identity and authenticity of
the document must be reasonably established as a pre-requisite
to its admission. (Rouw v. Arts, 174 Ark. 79, 294 S.W. 993, 52
A.L.R. 1263, and others) However, a party who does not deny
the genuineness of a proffered instrument may not object that it
was not properly identified before it was admitted in evidence.
(Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R.
835)." 27
Petitioner cites the case of State Prosecutors v. Muro, 28 which
frowned on reliance by courts on newspaper accounts. In that
case, Judge Muro was dismissed from the service for relying on a
newspaper account in dismissing eleven (11) cases against Mrs.
Imelda Romualdez Marcos. There is a significant difference,
however, between the Muro case and the cases at bar. In the
Muro case, Judge Muro dismissed the cases against Mrs. Marcos
on the basis of a newspaper account without affording the
prosecution "the basic opportunity to be heard on the matter by
way of a written comment or on oral argument . . . (this is) not
only a blatant denial of elementary due process to the
Government but is palpably indicative of bad faith and
partiality." In the instant cases, however, the petitioner had an
opportunity to object to the admissibility of the Angara Diary
when he filed his Memorandum dated February 20, 2001, Reply
Memorandum dated February 22, 2001, Supplemental
Memorandum dated February 23, 2001, and Second
Supplemental Memorandum dated February 24, 2001. He was
therefore not denied due process. In the words of Wigmore,
supra, petitioner had" been given an opportunity to inspect" the
Angara Diary but did not object to its admissibility. It is already
too late in the day to raise his objections in an Omnibus Motion,
after the Angara Diary has been used as evidence and a decision
rendered partly on the basis thereof.
III
Temporary Inability
Petitioner argues that the Court misinterpreted the meaning of
section 11, Article VII, of the Constitution in that Congress can
only decide the issue of inability when there is a variance of
opinion between a majority of the Cabinet and the President.
The situation presents itself when majority of the Cabinet
determines that the President is unable to govern; later, the
President informs Congress that his inability has ceased but is
contradicted by a majority of the members of the Cabinet. It is
also urged that the President’s judgment that he is unable to
govern temporarily which is thereafter communicated to the
Speaker of the House and the President of the Senate is the
political question which this Court cannot review.
We cannot sustain the petitioner. Lest petitioner forgets, he
himself made the submission in G.R. No. 146738 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." 29 We
sustained this submission and held that by its many acts,
Congress has already determined and dismissed the claim of
alleged temporary inability to govern proffered by petitioner. If
petitioner now feels aggrieved by the manner Congress
exercised its power, it is incumbent upon him to seek redress
from Congress itself. The power is conceded by the petitioner to
be with Congress and its alleged erroneous exercise cannot be
corrected by this Court. The recognition of respondent Arroyo as
our de jure president made by Congress is unquestionably a
political judgment. It is significant that House Resolution No. 176
cited as the bases of its judgment such factors as the" people’s
loss of confidence on the ability of former President Joseph
Ejercito Estrada to effectively govern" and the "members of the
international community had extended their recognition of Her
Excellency, Gloria Macapagal-Arroyo as President of the Republic
of the Philippines" and it has a constitutional duty "of fealty to
the supreme will of the people . . ." This political judgment may
be right or wrong but Congress is answerable only to the people
for its judgment. Its wisdom is fit to be debated before the
tribunal of the people and not before a court of justice. Needless
to state, the doctrine of separation of power constitutes an
insuperable bar against this Court’s interposition of its power of
judicial review to review the judgment of Congress rejecting
petitioner’s claim that he is still the President, albeit on leave
and that respondent Arroyo is merely an acting President.
Petitioner attempts to extricate himself from his submission that
Congress has the ultimate authority to determine his inability to
govern, and whose determination is a political question by now
arguing that whether one is a de jure or de facto President is a
judicial question. Petitioner’s change of theory, ill disguised as it
is, does not at all impress. The cases at bar do not present the
general issue of whether the respondent Arroyo is the de jure or
a de facto President. Specific issues were raised to the Court for
resolution and we ruled on an issue by issue basis. On the issue
of resignation under section 8, Article VII of the Constitution, we
held that the issue is legal and ruled that petitioner has resigned
from office before respondent Arroyo took her oath as
President. On the issue of inability to govern under section 11,
Article VII of the Constitution, we held that Congress has the
ultimate authority to determine the question as opined by the
petitioner himself and that the determination of Congress is a
political judgment which this Court cannot review. Petitioner
cannot blur these specific rulings by the generalization that
whether one is a de jure or de facto President is a judicial
question.
Petitioner now appears to fault Congress for its various acts
expressed thru resolutions which brushed off his temporary
inability to govern and President-on-leave argument. He asserts
that these acts of Congress should not be accorded any legal
significance because: (1) they are post facto and (2) a declaration
of presidential incapacity cannot be implied.
We disagree. There is nothing in section 11 of Article VII of the
Constitution which states that the declaration by Congress of the
President’s inability must always be a priori or before the Vice-
President assumes the presidency. In the cases at bar, special
consideration should be given to the fact that the events which
led to the resignation of the petitioner happened at express
speed and culminated on a Saturday. Congress was then not in
session and had no reasonable opportunity to act a priori on
petitioner’s letter claiming inability to govern. To be sure,
however, the petitioner cannot strictly maintain that the
President of the Senate, the Honorable Aquilino Pimentel, Jr.
and the then Speaker of the House of Representatives, the
Honorable Arnulfo P. Fuentebella, recognized respondent Arroyo
as the "constitutional successor to the presidency" post facto.
Petitioner himself states that his letter alleging his inability to
govern was "received by the Office of the Speaker on January 20,
2001 at 8:30 A.M. and the Office of the Senate at 9 P.M. of the
same day." 30 Respondent took her oath of office a few minutes
past 12 o’clock in the afternoon of January 20. Before the oath-
taking, Senate President Pimentel, Jr. and Speaker Fuentebella
had prepared a Joint Statement which states: 31chanrob1es
virtua1 1aw 1ibrary
"Joint Statement of Support and Recognition from the Senate
President and the Speaker of the House of Representatives
We, the elected leaders of the Senate and the House of
Representatives, are called upon to address the constitutional
crisis affecting the authority of the President to effectively
govern our distressed nation. We understand that the Supreme
Court at that time is issuing an en banc resolution recognizing
this political reality. While we may differ on the means to effect
a change of leadership, we however, cannot be indifferent and
must act resolutely. Thus, in line with our sworn duty to
represent our people and in pursuit of our goals for peace and
prosperity to all, we, the Senate President and the Speaker of
the House of Representatives, hereby declare our support and
recognition to the constitutional successor to the Presidency.
We similarly call on all sectors to close ranks despite our political
differences. May God Bless our nation in this period of new
beginnings.
Mabuhay ang Pilipinas at ang mamamayang Pilipino.
(Sgd.) AQUILINO PIMENTEL, JR.
Senate President
(Sgd.) ARNULFO P. FUENTEBELLA
Speaker of the House of Representatives"
This a priori recognition by the President of the Senate and the
Speaker of the House of Representatives of respondent Arroyo
as the "constitutional successor to the presidency" was followed
post facto by various resolutions of the Senate and the House, in
effect, confirming this recognition. Thus, Resolution No. 176
expressed." . . 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 nation’s goal
under the Constitution. 32 Resolution No. 82 of the Senate and
Resolution No. 178 of the House of Representatives both
confirmed the nomination of then Senator Teofisto Guingona,
Jr., as Vice-President. 33 It also passed Resolution No. 83
declaring the impeachment court functus officio. 34 Both Houses
sent bills to respondent Arroyo to be signed by her into law as
President of the Philippines. 35 These acts of Congress, a priori
and post facto, cannot be dismissed as merely implied
recognition of respondent Arroyo, as the president of the
Republic. Petitioner’s insistence that respondent Arroyo is just a
de facto President because said acts of Congress." . . are mere
circumstances of acquiescence calculated to induce people to
submit to respondent’s exercise of the powers of the
presidency" 36 is a guesswork far divorced from reality to
deserve further discussion.
Similarly way off the mark is petitioner’s point that "while the
Constitution has made Congress the national board of
canvassers for presidential and vice-presidential elections, this
Honorable Court nonetheless remains the sole judge in
presidential and vice presidential contests. 37 He thus postulates
that "such constitutional provision 38 is indicative of the desire
of the sovereign people to keep out of the hands of Congress
questions as to the legality of a person’s claim to the presidential
office." 39 Suffice to state that the inference is illogical. Indeed,
there is no room to resort to inference. The Constitution clearly
sets out the structure on how vacancies and election contest in
the office of the President shall be decided. Thus, section 7 of
Article VII covers the instance when (a) the President-elect fails
to qualify, (b) if a President shall not have been chosen and (c) if
at the beginning of the term of the President, the President-elect
shall have died or shall have become permanently disabled.
Section 8 of Article VII covers the situation of the death,
permanent disability, removal from office or resignation of the
President. Section 11 of Article VII covers the case where the
President transmits 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. In each case, the Constitution specifies the body that will
resolve the issues that may arise from the contingency. In case
of election contest, section 4, Article VII provides that the
contests shall be resolved by this Court sitting en banc. In case of
resignation of the President, it is not disputed that this Court has
jurisdiction to decide the issue. In case of inability to govern,
section 11 of Article VII gives the Congress the power to adjudge
the issue and petitioner himself submitted this thesis which was
shared by this Court. In light of these clear provisions of the
Constitution, it is inappropriate, to say the least, for petitioner to
make inferences that simply distort their meanings.
IV
Impeachment and Absolute Immunity
Petitioner contends that this Court disregarded section 3 (7) of
Article XI of the Constitution which
provides:jgc:chanrobles.com.ph
"(7) Judgment in cases of impeachment shall not extend
further than removal from office and disqualification to hold any
office under the Republic of the Philippines, but the party
convicted should nevertheless be liable and subject to
prosecution, trial and punishment according to law."cralaw
virtua1aw library
Petitioner reiterates the argument that he must be first
convicted in the impeachment proceedings before he could be
criminally prosecuted. A plain reading of the provision will not
yield this conclusion. The provision conveys two uncomplicated
ideas: first, it tells us that judgment in impeachment cases has a
limited reach . . . i.e., it cannot extend further than removal from
office and disqualification to hold any office under the Republic
of the Philippines, and second, it tells us the consequence of the
limited reach of a judgment in impeachment proceedings
considering its nature, i.e., that the party convicted shall still be
liable and subject to prosecution, trial and punishment according
to law. No amount of manipulation will justify petitioner’s non
sequitur submission that the provision requires that his
conviction in the impeachment proceedings is a condition sine
qua non to his prosecution, trial and punishment for the
offenses he ins now facing before the respondent Ombudsman.
Petitioner contends that the private and public prosecutors’
walk out from the impeachment proceedings "should be
considered failure to prosecute on the part of the public and
private prosecutors, and the termination of the case by the
Senate is equivalent to acquittal." 40 He explains "failure to
prosecute" as the "failure of the prosecution to prove the case,
hence dismissal on such grounds is a dismissal on the merits." 41
He then concludes that "dismissal of a case for failure to
prosecute amounts to an acquittal for purposes of applying the
rule against double jeopardy." 42
Without ruling on the nature of impeachment proceedings, we
reject petitioner’s submission.
The records will show that the prosecutors walked out in the
January 16, 2001 hearing of the impeachment cases when by a
vote of 11-10, the Senator-judges refused to open the second
envelope allegedly containing the P3.3 billion deposit of the
petitioner in a secret bank account under the name "Jose
Velarde." The next day, January 17, the public prosecutors
submitted a letter to the Speaker of the House tendering their
resignation. They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal. Senator Raul Roco
immediately moved for the indefinite suspension of the
impeachment proceedings until the House of Representatives
shall have resolved the resignation of the public prosecutors.
The Roco motion was then granted by Chief Justice Davide, Jr.
Before the House could resolve the issue of resignation of its
prosecutors or on January 20, 2001, petitioner relinquished the
presidency and respondent Arroyo took her oath as President of
the Republic. Thus, on February 7, 2001, the Senate passed
Resolution No. 83 declaring that the impeachment court is
functus officio.
Prescinding from these facts, petitioner cannot invoke double
jeopardy. Double jeopardy attaches only: (1) upon a valid
complaint; (2) before a competent court; (3) after arraignment;
(4) when a valid plea has been entered; and (5) when the
defendant was acquitted or convicted or the case was dismissed
or otherwise terminated without the express consent of the
accused. 43 Assuming arguendo that the first four requisites of
double jeopardy were complied with, petitioner failed to satisfy
the fifth requisite for he was not acquitted nor was the
impeachment proceeding dismissed without his express
consent. Petitioner’s claim of double jeopardy cannot be
predicated on prior conviction for he was not convicted by the
impeachment court. At best, his claim of previous acquittal may
be scrutinized in light of a violation of his right to speedy trial,
which amounts to a failure to prosecute. As Bernas points out, a
failure to prosecute, which is what happens when the accused is
not given a speedy trial, means failure of the prosecution to
prove the case. Hence, dismissal on such grounds is a dismissal
on the merits. 44
This Court held in Esmeña v. Pogoy 45 ,
viz:jgc:chanrobles.com.ph
"If the defendant wants to exercise his constitutional right to a
speedy trial, he should ask, not for the dismissal, but for the trial
of the case. After the prosecution’s motion for postponement of
the trial is denied and upon order of the court the fiscal does not
or cannot produce his evidence and, consequently fails to prove
the defendant’s guilt, the court upon defendant’s motion shall
dismiss the case, such dismissal amounting to an acquittal of the
defendant."cralaw virtua1aw library
In a more recent case, this Court held:jgc:chanrobles.com.ph
"It is true that in an unbroken line of cases, we have held that
the dismissal of cases on the ground of failure to prosecute is
equivalent to an acquittal that would bar further prosecution of
the accused for the same offense. It must be stressed, however,
that these dismissals were predicated on the clear right of the
accused to speedy trial. These cases are not applicable to the
petition at bench considering that the right of the private
respondents to speedy trial has not been violated by the State.
For this reason, private respondents cannot invoke their right
against double jeopardy." 46
Petitioner did not move for the dismissal of the impeachment
case against him. Even assuming arguendo that there was a
move for its dismissal, not every invocation of an accused’s right
to speedy trial is meritorious. While the Court accords due
importance to an accused’s right to a speedy trial and adheres to
a policy of speedy administration of justice, this right cannot be
invoked loosely. Unjustified postponements which prolong the
trial for an unreasonable length of time are what offend the
right of the accused to speedy trial. 47 The following provisions
of the Revised Rules of Criminal Procedure are
apropos:jgc:chanrobles.com.ph
"Rule 115, Section 1(h). Rights of accused at the trial. — In all
criminal prosecutions, the accused shall be entitled to the
following rights:chanrob1es virtual 1aw library
(h) To have speedy, impartial and public trial."cralaw
virtua1aw library
"Rule 119, Section 2. Continuous trial until terminated;
postponements. — Trial once commenced shall continue from
day to day as far as practicable until terminated. It may be
postponed for a reasonable length of time for good cause.
The court shall, after consultation with the prosecutor and
defense counsel, set the case for continuous trial on a weekly or
other short-term trial calendar at the earliest possible time so as
to ensure speedy trial. In no case shall the entire trial period
exceed one hundred eighty (180) days from the first day of trial,
except as otherwise authorized by the Supreme Court."cralaw
virtua1aw library
Petitioner therefore failed to show that the postponement of
the impeachment proceedings was unjustified, much less that it
was for an unreasonable length of time. Recalling the facts, on
January 17, 2001, the impeachment proceeding was suspended
until the House of Representatives shall have resolved the issue
on the resignation of the public prosecutors. This was justified
and understandable for an impeachment proceeding without a
panel of prosecutors is a mockery of the impeachment process.
However, three (3) days from the suspension or January 20,
2001, petitioner’s resignation supervened. With the sudden turn
of events, the impeachment court became functus officio and
the proceedings were therefore terminated. By no stretch of the
imagination can the four-day period from the time the
impeachment proceeding was suspended to the day petitioner
resigned, constitute an unreasonable period of delay violative of
the right of the accused to speedy trial.
Nor can the claim of double jeopardy be grounded on the
dismissal or termination of the case without the express consent
of the accused. We reiterate that the impeachment proceeding
was closed only after the petitioner had resigned from the
presidency, thereby rendering the impeachment court functus
officio. By resigning from the presidency, petitioner more than
consented to the termination of the impeachment case against
him, for he brought about the termination of the impeachment
proceedings. We have consistently ruled that when the dismissal
or termination of the case is made at the instance of the
accused, there is no double jeopardy. 48
Petitioner stubbornly clings to the contention that he is entitled
to absolute immunity from suit. His arguments are merely
recycled and we need not prolong the longevity of the debate on
the subject. In our Decision, we exhaustively traced the origin of
executive immunity in our jurisdiction and its bends and turns up
to the present time. We held that given the intent of the 1987
Constitution to breathe life to the policy that a public office is a
public trust, the petitioner, as a non-sitting President, cannot
claim executive immunity for his alleged criminal acts committed
while a sitting President. Petitioner’s rehashed arguments
including their thinly disguised new spins are based on the
rejected contention that he is still President, albeit, a President
on leave. His stance that his immunity covers his entire term of
office or until June 30, 2004 disregards the reality that he has
relinquished the presidency and there is now a new de jure
President.chanrobles.com : virtual law library
Petitioner goes a step further and avers that even a non-sitting
President enjoys immunity from suit during he term of office. He
buttresses his position with the deliberations of the
Constitutional Commission, viz:jgc:chanrobles.com.ph
"Mr. Suarez. Thank you.
The last question is with reference to the Committee’s 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:chanrob1es virtual 1aw library
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:chanrob1es virtual 1aw library
So there is no need to express it here.
Fr. Bernas:chanrob1es virtual 1aw library
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:chanrob1es virtual 1aw library
On the understanding, I will not press for any more query,
madam President.
I thank the Commissioner for the clarification." 49
Petitioner, however, fails to distinguish between term and
tenure. The term means the time during which the officer may
claim to hold the office as of right, and fixes the interval after
which the several incumbents shall succeed one another. The
tenure represents the term during which the incumbent actually
holds office. The tenure may be shorter than the term for
reasons within or beyond the power of the incumbent. 50 From
the deliberations, the intent of the framers is clear that the
immunity of the president from suit is concurrent only with his
tenure and not his term.
Indeed, petitioner’s stubborn stance cannot but bolster the
belief that the cases at bar were filed not really for petitioner to
reclaim the presidency but just to take advantage of the
immunity attached to the presidency and thus, derail the
investigation of the criminal cases pending against him in the
Office of the Ombudsman.
V prejudicial publicity. We again stress that the issue before us is
Prejudicial Publicity on the Ombudsman
Petitioner hangs tough on his submission that his due process
rights to a fair trial have been prejudiced by pre-trial publicity. In
our Decision, we held that there is not enough evidence to
sustain petitioner’s claim of prejudicial publicity. Unconvinced,
petitioner alleges that the vivid narration of events in our
Decision itself proves the pervasiveness of the prejudicial
publicity. He then posits the thesis that "doubtless, the national
fixation with the probable guilt of petitioner fueled by the hate
campaign launched by some high circulation newspaper and by
the bully pulpit of priests and bishops left indelible impression
on all sectors of the citizenry and all regions, so harsh and so
pervasive that the prosecution and the judiciary can no longer
assure petitioner a sporting chance." 51 To be sure, petitioner
engages in exaggeration when he alleges that "all sectors of the
citizenry and all regions: have been irrevocably influenced by
this barrage of prejudicial publicity. This exaggeration collides
with petitioner’s claim that he still enjoys the support of the
majority of our people, especially the masses.
Petitioner pleads that we apply the doctrine of res ipsa loquitur
(the thing or the transaction speaks for itself) to support his
argument. Under the res ipsa loquitur rule in its broad sense, the
fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption
of negligence, or make out a plaintiff’s prima facie case, and
present a question of fact for defendant to meet with an
explanation. 52 It is not a rule of substantive law but more a
procedural rule. Its mere invocation does not exempt the
plaintiff with the requirement of proof to prove negligence. It
merely allows the plaintiff to present along with the proof of the
accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption o negligence and
to thereby place on the defendant the burden of going forward
with the proof. 53
We hold that it is inappropriate to apply the rule on res ipsa
loquitur, a rule usually applied only in tort cases, to the cases at
bar. Indeed, there is no court in the whole world that has
applied the res ipsa loquitur rule to resolve the issue of
whether the alleged pervasive publicity of the cases against the
petitioner has prejudiced the minds of the members of the panel
of investigators. We reiterate the test we laid down in People v.
Teehankee, 54 to resolve this issue, viz:jgc:chanrobles.com.ph
"We cannot sustain appellant’s 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 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 accused’s 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 . . .. 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 fiction 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 test they lost their impartiality . . .. 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 of change even
by evidence presented during the trial. Appellant has the burden
to prove this actual bias and he has not discharged the
burden."cralaw virtua1aw library
Petitioner keeps on pounding on the adverse publicity against
him but fails to prove how the impartiality of the panel of
investigators from the Office of the Ombudsman has been
infected by it. As we held before and we hold it again, petitioner
has completely failed to adduce any proof of actual prejudice
developed by the members of the Panel of Investigators. This
fact must be established by clear and convincing evidence and
cannot be left to loose surmises and conjectures. In fact,
petitioner did not even identify the members of the Panel of
Investigators. We cannot replace this test of actual prejudice
with the rule of res ipsa loquitur as suggested by the petitioner.
The latter rule assumes that an injury (i.e., prejudicial publicity)
has been suffered and then shifts the burden to the panel of
investigators to prove that the impartiality of its members has
been affected by said publicity. Such a rule will overturn our case
law that pervasive publicity is not per se prejudicial to the right
of an accused to fair trial. The cases are not wanting where an
accused has been acquitted despite pervasive publicity. 55 For
this reason, we continue to hold that it is not enough for
petitioner to conjure possibility of prejudice but must prove
actual prejudice on the part of his investigators for the Court to
sustain his plea. It is plain that petitioner has failed to do so.
Petitioner again suggests that the Court should order a 2-month
cooling off period to allow passions to subside and hopefully the
alleged prejudicial publicity against him would die down. We
regret not to acquiesce to the proposal. There is no assurance
that the so called 2-month cooling off period will achieve its
purpose. The investigation of the petitioner is a natural media
event. It is the first time in our history that a President will be
investigated by the Office of the Ombudsman for alleged
commission of heinous crimes while a sitting President. His
investigation will even be monitored by the foreign press all over
the world in view of its legal and historic significance. In other
words, petitioner cannot avoid the kleiglight of publicity. But
what is important for the petitioner is that his constitutional
rights are not violated in the process of investigation. For this
reason, we have warned the respondent Ombudsman in our
Decision to conduct petitioner’s preliminary investigation in a
circus-free atmosphere. Petitioner is represented by brilliant
legal minds who can protect his rights as an accused.
VI
Recusation
Finally, petitioner prays that "the members of this Honorable
Court who went to EDSA put on record who they were and
consider recusing or inhibiting themselves, particularly those
who had ex-parte contacts with those exerting pressure on this
Honorable Court, as mentioned in our Motion of March 9, 2001,
given the need for the cold neutrality of impartial judges." 56
We hold that the prayer lacks merit. There is no ground to
inhibit the twelve (12) members of the Court who merely
accepted the invitation of the respondent Arroyo to attend her
oath taking. As mere spectators of a historic even, said members
of the Court did not prejudge the legal basis of the claim of
respondent Arroyo to the presidency at the time she took her
oath. Indeed, the Court in its en banc resolution on January 22,
2001, the first working day after respondent Arroyo took her
oath as President, held in Administrative Matter No. 01-1-05 SC,
to wit:jgc:chanrobles.com.ph
"A.M. No. 01-1-05-SC — In re: Request for 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 may be filed by a proper party." chanrob1es
virtua1 1aw 1ibrary
The above resolution was unanimously passed by the 15
members of the Court. It should be clear from the resolution
that the Court did not treat the letter of respondent Arroyo to
be administered the oath by Chief Justice Davide, Jr. as a case
but as an administrative matter. If it were considered as a case,
then petitioner has reason to fear that the Court has
predetermined the legitimacy of the claim of respondent Arroyo
to the presidency. To dispel the erroneous notion, the Court
precisely treated the letter as an administrative matter and
emphasized that it was "without prejudice to the disposition of
any justiciable case that may be filed by a proper party." In
further clarification, the Court on February 20, 2001 issued
another resolution to inform the parties and the public that it." .
. 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."
Thus there is no reason for petitioner to request for the said
twelve (12) justices to recuse themselves. To be sure, a motion
to inhibit filed by a party after losing his case is suspect and is
regarded with general disfavor.
Moreover, to disqualify any of the members of the Court,
particularly a majority of them, is nothing short of pro tanto
depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of
his judicial power. And if that judge is the one designated by the
Constitution to exercise the jurisdiction of his court, as is the
case with the Justices of this Court, the deprivation of his or their
judicial power is equivalent to the deprivation of the judicial
power of the court itself. It affects the very heart of judicial
independence. 57 The proposed mass disqualification, if
sanctioned and ordered, would leave the Court no alternative
but to abandon a duty which it cannot lawfully discharge if shorn
of the participation of its entire membership of Justices. 58
IN VIEW WHEREOF, petitioner’s Motion for Reconsideration in
G.R. Nos. 146710-15 and his Omnibus Motion in G.R. No. 146738
are DENIED for lack of merit.
SO ORDERED.
Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes and
De Leon, Jr., JJ., concur.
Davide, Jr., C.J., took no part; for reasons given in open forum
and in the extended explanation.
Kapunan, J., concurs in the result but strongly reiterates
separate opinion in the main case.
Panganiban, J., took no part; see my "Extended Explanation of
Inhibition" prom. on. March 8, 2001.

Ynares-Santiago, J., concur in the result but maintain separate
opinion in the main decision.
Sandoval-Gutierrez, J., I concur in the result subject to my
separate opinion in the main decision.
Separate Opinions
VITUG, J., concurring:chanrob1es virtual 1aw library
By a vote of 13-0, the Supreme Court, in its decision
promulgated on 02 March 2001, confirmed the legitimacy of the
Arroyo government.
The motion for reconsideration submitted by Mr. Joseph E.
Estrada seeks to have a more circumspect statement of the facts
and conclusions given by the Court on the ascendancy of Mme.
Gloria Macapagal-Arroyo to the highest post of the land. It is
basically argued that minute details and hairline distinctions
would show that the departure from Malacañang of the former
President could not have possibly fallen under any of the
circumstances of vacancy enumerated in the Constitution so as
to legally allow the takeover of the office by the now incumbent.
All the other material allegations really wrangle on this point.
There, truly, might never be a definitive consensus, let alone
unanimity, on the fine and valid issues heretofore submitted by
petitioner. To dissect the events into miniscule parts for
microscopic scrutiny, however, could in the end be just begging
the question. The varying versions of the events and their
differing interpretations notwithstanding, one circumstance still
remained clear, and it was that a convergence and confluence of
events, sparked by a civilian dissent which set into motion a
domino effect on the government itself, plagued the presidency.
The things that occurred were no longer to be yet in dispute but
were matters of fact. Contra factum non valet
argumentum.chanrob1es virtua1 1aw 1ibrary
At little past noon on 20 January 2001, then incumbent Vice-
President Gloria Macapagal-Arroyo would take her oath of office
to become the 14th President of the Republic of the Philippines.
She would take over the reins of government for the remaining
tenure of her predecessor, President Joseph Ejercito Estrada, still
then the incumbent. Mr. Estrada had by then practically lost
effective control of the government. Within hours after a
controversial Senate decision that ended abruptly the
impeachment proceedings against Mr. Estrada, an irate people
came in force to the site of the previous uprising in 1986 — EDSA
that toppled the 20-year rule of former President Ferdinand E.
Marcos — and this time demanded the immediate ouster of Mr.
Estrada. Shortly thereafter, civic leaders and government
personalities, including most of the cabinet members, and still
later the military establishment and the national police, joined
cause with the mass of people.
When the formal oath-taking finally came, Mme. Gloria
Macapagal-Arroyo officially assumed the Office of the President,
and Mr. Estrada forthwith ceased to govern. The alarming unrest
and turmoil ended with the assumption of the new leadership.
The tenor of the oath actually taken by Mme. Macapagal-Arroyo
and the farewell message of Mr. Estrada to the nation upon his
leaving the seat of power rested the reality. Intentio mea
imponet nomen operi meo.
The primordial question that emerged was no longer whether
the transfer of power had, in fact, occurred — it did — or
whether it was ideal or bereft of equanimity but whether the
change was within Constitutional parameters — the 1987
Constitution its letter, intent and spirit — or was revolutionary in
character. To be sure, the debate will persist on end. For,
indeed, the events were such that it would have well been one
or the other. It was a critical close call. The indications would
seem that much also depended, by good margin, on how the
powerholders would have wanted it to be at the time. The
circumstances that prevailed would have likely allowed them to
declare a revolutionary government, to dismantle the old, and to
have a new one installed, thereby effectively abrogating the
Constitution until yet another if minded. Respondent could have,
so enjoying a show of overwhelming civilian and military support
as she did, forever silenced any legal challenge to her leadership
by choosing a previously-tested path trodden by then President
Corazon C. Aquino fifteen years before — declaring a
revolutionary government, doing away with the constitution and
railroading all extant democratic institutions and, once
ensconced in power, rule by decree. The large group of people,
already then impatient after a four-day vigil at EDSA and later at
Mendiola, could have given in to the popular passions and
impulses that prevailed, stormed Malacañang gates, bodily
removed petitioner from office and, in his place, sworn in
respondent, or any other person or group not so dictated by the
Charter as the successor.
It was fortunate that the play of events had it otherwise, more
likely by design than not, and the Constitution was saved,
personas transposed. The succession by Mme. Macapagal-
Arroyo resulted neither in the rupture nor in the abrogation of
the legal order. The ascension to power was by the duly-elected
Vice-President of the Republic. The Armed Forces of the
Philippines and the Philippine National Police felt that they were
so acting only in obedience to their mandate as the protector of
the people. The constitutionally-established government
structure, embracing various offices under the executive branch,
the judiciary, the legislature, the constitutional commissions and
still other entities, including the local governments, remained
intact and functioning. Immediate stability was achieved,
violence was averted, and the country was spared from possible
catastrophe.
If, as Mr. Estrada would so have it, the takeover of the
Presidency could not be constitutionally justified, then,
unavoidably, one would have to hold that the Arroyo
government, already and firmly in control then and now, would
be nothing else but revolutionary. And, if it were, the principal
points brought up in the petitioners for and in behalf of Mr.
Estrada, predicated on constitutional grounds, would then be
left bare as there would, in the first place, be no Constitution to
speak of . The invocation alone of the jurisdiction of this Court
would itself be without solid foundation absent its charter.
To go back then to the basic question, in either way it is
addressed, whether affirmatively or negatively, the dismissal of
the subject petitions, earlier decreed by the Court, will have to
be sustained.
But the EDSA II phenomenon must not end there. We might ask
ourselves — have we, as a people, really shown to the world
enough political maturity? Or have we now found ourselves
trapped and strangled in an epidemic of political instability? Or,
is perhaps our culture or psyche, as a nation, after all,
incompatible with the kind of democracy we have plucked from
Western soil? EDSA II will be more than just an exercise of
people prerogative; it will also be a time for reflection and re-
examination of values and commitments. It is frightening to
think that the sensitive cord of the social fiber that binds us all as
one people might so unwittingly be struck and severed. Such a
damage would be irreparable.
MENDOZA, J., concurring:chanrob1es virtual 1aw library
For the reasons given in my concurring opinion in these cases, I
am of the opinion that, having lost the public trust and the
support of his own cabinet, the military and the national police,
petitioner Joseph Ejercito Estrada became permanently disabled
from continuing as President of the Philippines and that
respondent Gloria Macapagal-Arroyo, being then the Vice-
President, legally succeeded to the presidency pursuant to Art.
VII, §8 of the Constitution.
My concern in this separate opinion is with petitioner’s claim in
G.R. Nos. 146710-15 that he must be deemed acquitted of the
charges against him because the Senate impeachment
proceedings against him were terminated not at his instance,
and, consequently, he cannot be prosecuted again for the same
offense(s) without violating his right not to be placed in double
jeopardy.chanrob1es virtua1 1aw 1ibrary
Petitioner cites Art. XI, §3(7) of the Constitution which provides
that —
Judgment in cases of impeachment shall not extend further than
removal from office and disqualification to hold any office under
the Republic of the Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution, trial and
punishment according to law.
Petitioner argues that the purpose of the provision allowing
subsequent prosecution and trial of a party convicted in an
impeachment trial is precisely to preclude a plea of double
jeopardy by the accused in the event he is convicted in the
impeachment trial.
Petitioner’s contention cannot be sustained. In the first place,
the impeachment proceedings against petitioner were
terminated for being functus officio, since the primary purpose
of impeachment is the removal of the respondent therein from
office and his disqualification to hold any other office under the
government.
In the second place, the proviso that an impeached and
convicted public official would "nevertheless" be subject to
criminal prosecution serves to qualify the clause that "judgment
in cases of impeachment shall not extend further than removal
from office and disqualification to hold any office under the
Republic of the Philippines." In other words, the public official
convicted in an impeachment trial is nevertheless subject to
criminal prosecution because the penalty which can be meted
out on him cannot exceed removal from office and
disqualification to hold office in the future. Consequently, where
as in this case, the impeachment proceedings did not result in
petitioner’s conviction, there can be no objection to his
subsequent trial and conviction in a criminal case. The rule that
an impeachable officer cannot be criminally prosecuted for the
same offenses which constitute grounds for impeachment
presupposes his continuance in office. 1 As Professor Tribe has
written:chanrob1es virtual 1aw library
. . . [I]t should also be possible for an official to be acquitted by
the Senate in an impeachment trial but subsequently convicted
of the same underlying acts in a federal court. The Senate’s
acquittal, after all, could well represent a determination merely
that the charged offenses were not impeachable, or that the
nation would be harmed more than protected by pronouncing
the official guilty. 2
Hence, the moment he is no longer in office because of his
removal, resignation, or permanent disability, there can be no
bar to his criminal prosecution in the courts.
Indeed, tested by the ordinary rules of criminal procedure, since
petitioner was neither convicted nor acquitted in the
impeachment proceedings, nor the case against him dismissed
without his consent, his prosecution in the Sandiganbayan for
the same offense for which he was impeached cannot be barred.
3
For these reasons, I concur in the denial of the motions for
reconsideration filed on behalf of petitioner in these
cases.chanrob1es virtua1 1aw 1ibrary