Constitutional Law 1 Cases (D)
Republic of the Philippines We see no profit and necessity in again discussing and considering the
SUPREME COURT
Manila
EN BANC
G.R. No. L-6355-56 August 31, 1953
PASTOR M. ENDENCIA and FERNANDO JUGO, plaintiffs-appellees,
vs.
SATURNINO DAVID, as Collector of Internal Revenue, defendant-
appellant.
Office of the Solicitor General Juan R. Liwag and Solicitor Jose P. Alejandro
for appellant.
Manuel O. Chan for appellees.
MONTEMAYOR, J.:
This is a joint appeal from the decision of the Court of First Instance of
Manila declaring section 13 of Republic Act No. 590 unconstitutional,
and ordering the appellant Saturnino David as Collector of Internal
Revenue to re-fund to Justice Pastor M. Endencia the sum of P1,744.45,
representing the income tax collected on his salary as Associate Justice
of the Court of Appeals in 1951, and to Justice Fernando Jugo the amount
of P2,345.46, representing the income tax collected on his salary from
January 1,1950 to October 19, 1950, as Presiding Justice of the Court of
Appeals, and from October 20, 1950 to December 31,1950, as Associate
Justice of the Supreme Court, without special pronouncement as to costs.
Because of the similarity of the two cases, involving as they do the same
question of law, they were jointly submitted for determination in the
lower court. Judge Higinio B. Macadaeg presiding, in a rather exhaustive
and well considered decision found and held that under the doctrine laid
down by this Court in the case of Perfecto vs. Meer, 85 Phil., 552, the
collection of income taxes from the salaries of Justice Jugo and Justice
Endencia was a diminution of their compensation and therefore was in
violation of the Constitution of the Philippines, and so ordered the
refund of said taxes.
proposition and the arguments pro and cons involved in the case of
Perfecto vs. Meer, supra, which are raised, brought up and presented
here. In that case, we have held despite the ruling enunciated by the
United States Federal Supreme Court in the case of O 'Malley vs.
Woodrought 307 U. S., 277, that taxing the salary of a judicial officer in
the Philippines is a diminution of such salary and so violates the
Constitution. We shall now confine our-selves to a discussion and
determination of the remaining question of whether or not Republic Act
No. 590, particularly section 13, can justify and legalize the collection of
income tax on the salary of judicial officers.
According to the brief of the Solicitor General on behalf of appellant
Collector of Internal Revenue, our decision in the case of Perfecto vs.
Meer, supra, was not received favorably by Congress, because
immediately after its promulgation, Congress enacted Republic Act No.
590. To bring home his point, the Solicitor General reproduced what he
considers the pertinent discussion in the Lower House of House Bill No.
1127 which became Republic Act No. 590.
For purposes of reference, we are reproducing section 9, Article VIII of
our Constitution:.
SEC. 9. The members of the Supreme Court and all judges of
inferior courts shall hold office during good behavior, until they
reach the age of seventy years, or become incapacitated to
discharge the duties of their office. They shall receive such
compensation as may be fixed by law, which shall not be
diminished during their continuance in office. Until the Congress
shall provide otherwise, the Chief Justice of the Supreme Court
shall receive an annual compensation of sixteen thousand pesos,
and each Associate Justice, fifteen thousand pesos.
As already stated construing and applying the above constitutional
provision, we held in the Perfecto case that judicial officers are exempt
from the payment of income tax on their salaries, because the collection
thereof by the Government was a decrease or diminution of their
salaries during their continuance in office, a thing which is expressly
prohibited by the Constitution. Thereafter, according to the Solicitor
General, because Congress did not favorably receive the decision in the
Perfecto case, Congress promulgated Republic Act No. 590, if not to
1

counteract the ruling in that decision, at least now to authorize and
legalize the collection of income tax on the salaries of judicial officers.
We quote section 13 of Republic Act No. 590:
SEC 13. No salary wherever received by any public officer of the
Republic of the Philippines shall be considered as exempt from
the income tax, payment of which is hereby declared not to be
dimunition of his compensation fixed by the Constitution or by
law.
So we have this situation. The Supreme Court in a decision interpreting
the Constitution, particularly section 9, Article VIII, has held that judicial
officers are exempt from payment of income tax on their salaries,
because the collection thereof was a diminution of such salaries,
specifically prohibited by the Constitution. Now comes the Legislature
and in section 13, Republic Act No. 590, says that "no salary wherever
received by any public officer of the Republic (naturally including a
judicial officer) shall be considered as exempt from the income tax," and
proceeds to declare that payment of said income tax is not a diminution
of his compensation. Can the Legislature validly do this? May the
Legislature lawfully declare the collection of income tax on the salary of
a public official, specially a judicial officer, not a decrease of his salary,
after the Supreme Court has found and decided otherwise? To determine
this question, we shall have to go back to the fundamental principles
regarding separation of powers.
Under our system of constitutional government, the Legislative
department is assigned the power to make and enact laws. The
Executive department is charged with the execution of carrying out of
the provisions of said laws. But the interpretation and application of said
laws belong exclusively to the Judicial department. And this authority to
interpret and apply the laws extends to the Constitution. Before the
courts can determine whether a law is constitutional or not, it will have
to interpret and ascertain the meaning not only of said law, but also of
the pertinent portion of the Constitution in order to decide whether
there is a conflict between the two, because if there is, then the law will
have to give way and has to be declared invalid and unconstitutional.
Defining and interpreting the law is a judicial function and the
legislative branch may not limit or restrict the power granted to
Constitutional Law 1 Cases (D)
the courts by the Constitution. (Bandy vs. Mickelson et al., 44N.
W., 2nd 341, 342.)
When it is clear that a statute transgresses the authority vested
in the legislature by the Constitution, it is the duty of the courts
to declare the act unconstitutional because they cannot shrink
from it without violating their oaths of office. This duty of the
courts to maintain the Constitution as the fundamental law of the
state is imperative and unceasing; and, as Chief Justice Marshall
said, whenever a statute is in violation of the fundamental law,
the courts must so adjudge and thereby give effect to the
Constitution. Any other course would lead to the destruction of
the Constitution. Since the question as to the constitutionality of
a statute is a judicial matter, the courts will not decline the
exercise of jurisdiction upon the suggestion that action might be
taken by political agencies in disregard of the judgment of the
judicial tribunals. (11 Am. Jur., 714-715.)
Under the American system of constitutional government, among
the most important functions in trusted to the judiciary are the
interpreting of Constitutions and, as a closely connected power,
the determination of whether laws and acts of the legislature are
or are not contrary to the provisions of the Federal and State
Constitutions. (11 Am. Jur., 905.).
By legislative fiat as enunciated in section 13, Republic Act NO. 590,
Congress says that taxing the salary of a judicial officer is not a decrease
of compensation. This is a clear example of interpretation or
ascertainment of the meaning of the phrase "which shall not be
diminished during their continuance in office," found in section 9, Article
VIII of the Constitution, referring to the salaries of judicial officers. This
act of interpreting the Constitution or any part thereof by the Legislature
is an invasion of the well-defined and established province and
jurisdiction of the Judiciary.
The rule is recognized elsewhere that the legislature cannot pass
any declaratory act, or act declaratory of what the law was
before its passage, so as to give it any binding weight with the
courts. A legislative definition of a word as used in a statute is
not conclusive of its meaning as used elsewhere; otherwise, the
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legislature would be usurping a judicial function in defining a
term. (11 Am. Jur., 914, emphasis supplied)
The legislature cannot, upon passing a law which violates a
constitutional provision, validate it so as to prevent an attack
thereon in the courts, by a declaration that it shall be so construed
as not to violate the constitutional inhibition. (11 Am. Jur., 919,
emphasis supplied)
We have already said that the Legislature under our form of government
is assigned the task and the power to make and enact laws, but not to
interpret them. This is more true with regard to the interpretation of the
basic law, the Constitution, which is not within the sphere of the
Legislative department. If the Legislature may declare what a law means,
or what a specific portion of the Constitution means, especially after the
courts have in actual case ascertain its meaning by interpretation and
applied it in a decision, this would surely cause confusion and instability
in judicial processes and court decisions. Under such a system, a final
court determination of a case based on a judicial interpretation of the
law of the Constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or of the Constitution
by the Legislative department. That would be neither wise nor desirable,
besides being clearly violative of the fundamental, principles of our
constitutional system of government, particularly those governing the
separation of powers.
So much for the constitutional aspect of the case. Considering the
practical side thereof, we believe that the collection of income tax on a
salary is an actual and evident diminution thereof. Under the old system
where the in-come tax was paid at the end of the year or sometime
thereafter, the decrease may not be so apparent and clear. All that the
official who had previously received his full salary was called upon to do,
was to fulfill his obligation and to exercise his privilege of paying his
income tax on his salary. His salary fixed by law was received by him in
the amount of said tax comes from his other sources of income, he may
not fully realize the fact that his salary had been decreased in the
amount of said income tax. But under the present system of withholding
the income tax at the source, where the full amount of the income tax
corresponding to his salary is computed in advance and divided into
equal portions corresponding to the number of pay-days during the year
and actually deducted from his salary corresponding to each payday,
Constitutional Law 1 Cases (D)
said official actually does not receive his salary in full, because the
income tax is deducted therefrom every payday, that is to say, twice a
month. Let us take the case of Justice Endencia. As Associate Justice of
the Court of Appeals, his salary is fixed at p12,000 a year, that is to say,
he should receive P1,000 a month or P500 every payday, — fifteenth and
end of month. In the present case, the amount collected by the Collector
of Internal Revenue on said salary is P1,744.45 for one year. Divided by
twelve (months) we shall have P145.37 a month. And further dividing it
by two paydays will bring it down to P72.685, which is the income tax
deducted form the collected on his salary each half month. So, if Justice
Endencia's salary as a judicial officer were not exempt from payment of
the income tax, instead of receiving P500 every payday, he would be
actually receiving P427.31 only, and instead of receiving P12,000 a year,
he would be receiving but P10,255.55. Is it not therefor clear that every
payday, his salary is actually decreased by P72.685 and every year is
decreased by P1,744.45?
Reading the discussion in the lower House in connection with House Bill
No. 1127, which became Republic Act No. 590, it would seem that one of
the main reasons behind the enactment of the law was the feeling among
certain legislators that members of the Supreme Court should not enjoy
any exemption and that as citizens, out of patriotism and love for their
country, they should pay income tax on their salaries. It might be stated
in this connection that the exemption is not enjoyed by the members of
the Supreme Court alone but also by all judicial officers including
Justices of the Court of Appeals and judges of inferior courts. The
exemption also extends to other constitutional officers, like the
President of the Republic, the Auditor General, the members of the
Commission on Elections, and possibly members of the Board of Tax
Appeals, commissioners of the Public Service Commission, and judges of
the Court of Industrial Relations. Compares to the number of all these
officials, that of the Supreme Court Justices is relatively insignificant.
There are more than 990 other judicial officers enjoying the exemption,
including 15 Justices of the Court of Appeals, about 107 Judges of First
Instance, 38 Municipal Judges and about 830 Justices of the Peace. The
reason behind the exemption in the Constitution, as interpreted by the
United States Federal Supreme Court and this Court, is to preserve the
independence of the Judiciary, not only of this High Tribunal but of the
other courts, whose present membership number more than 990 judicial
officials.
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The exemption was not primarily intended to benefit judicial officers,
but was grounded on public policy. As said by Justice Van Devanter of
the United States Supreme Court in the case of Evans vs. Gore (253 U. S.,
245):
The primary purpose of the prohibition against diminution was
not to benefit the judges, but, like the clause in respect of tenure,
to attract good and competent men to the bench and to promote
that independence of action and judgment which is essential to
the maintenance of the guaranties, limitations and pervading
principles of the Constitution and to the administration of justice
without respect to person and with equal concern for the poor
and the rich. Such being its purpose, it is to be construed, not as a
private grant, but as a limitation imposed in the public interest;
in other words, not restrictively, but in accord with its spirit and
the principle on which it proceeds.
Having in mind the limited number of judicial officers in the Philippines
enjoying this exemption, especially when the great bulk thereof are
justices of the peace, many of them receiving as low as P200 a month,
and considering further the other exemptions allowed by the income tax
law, such as P3,000 for a married person and P600 for each dependent,
the amount of national revenue to be derived from income tax on the
salaries of judicial officers, were if not for the constitutional exemption,
could not be large or substantial. But even if it were otherwise, it should
not affect, much less outweigh the purpose and the considerations that
prompted the establishment of the constitutional exemption. In the same
case of Evans vs. Gore, supra, the Federal Supreme Court declared "that
they (fathers of the Constitution) regarded the independence of the
judges as far as greater importance than any revenue that could come
from taxing their salaries.
When a judicial officer assumed office, he does not exactly ask for
exemption from payment of income tax on his salary, as a privilege . It is
already attached to his office, provided and secured by the fundamental
law, not primarily for his benefit, but based on public interest, to secure
and preserve his independence of judicial thought and action. When we
come to the members of the Supreme Court, this excemption to them is
relatively of short duration. Because of the limited membership in this
High Tribunal, eleven, and due to the high standards of experience,
practice and training required, one generally enters its portals and
Constitutional Law 1 Cases (D)
comes to join its membership quite late in life, on the aver-age, around
his sixtieth year, and being required to retire at seventy, assuming that
he does not die or become incapacitated earlier, naturally he is not in a
position to receive the benefit of exemption for long. It is rather to the
justices of the peace that the exemption can give more benefit. They are
relatively more numerous, and because of the meager salary they
receive, they can less afford to pay the income tax on it and its
diminution by the amount of the income tax if paid would be real,
substantial and onerous.
Considering exemption in the abstract, there is nothing unusual or
abhorrent in it, as long as it is based on public policy or public interest.
While all other citizens are subject to arrest when charged with the
commission of a crime, members of the Senate and House of
Representatives except in cases of treason, felony and breach of the
peace are exempt from arrest, during their attendance in the session of
the Legislature; and while all other citizens are generally liable for any
speech, remark or statement, oral or written, tending to cause the
dishonor, discredit or contempt of a natural or juridical person or to
blacken the memory of one who is dead, Senators and Congressmen in
making such statements during their sessions are extended immunity
and exemption.
And as to tax exemption, there are not a few citizens who enjoy this
exemption. Persons, natural and juridical, are exempt from taxes on their
lands, buildings and improvements thereon when used exclusively for
educational purposes, even if they derive income therefrom. (Art. VI, Sec.
22 [3].) Holders of government bonds are exempted from the payment of
taxes on the income or interest they receive therefrom (sec. 29 (b) [4],
National Internal Revenue Code as amended by Republic Act No. 566).
Payments or income received by any person residing in the Philippines
under the laws of the United States administered by the United States
Veterans Administration are exempt from taxation. (Republic Act No.
360). Funds received by officers and enlisted men of the Philippine Army
who served in the Armed Forces of the United States, allowances earned
by virtue of such services corresponding to the taxable years 1942 to
1945, inclusive, are exempted from income tax. (Republic Act No. 210).
The payment of wages and allowances of officers and enlisted men of the
Army Forces of the Philippines sent to Korea are also exempted from
taxation. (Republic Act No. 35). In other words, for reasons of public
policy and public interest, a citizen may justifiably by constitutional
4
 Constitutional Law 1 Cases (D)

provision or statute be exempted from his ordinary obligation of paying transgression of the fundamental principle underlying the separation of
taxes on his income. Under the same public policy and perhaps for the powers.
same it not higher considerations, the framers of the Constitution
deemed it wise and necessary to exempt judicial officers from paying
taxes on their salaries so as not to decrease their compensation, thereby
insuring the independence of the Judiciary. PARAS, C.J., concurring and dissenting:

In conclusion we reiterate the doctrine laid down in the case of Perfecto I dissent for the same reasons stated in the dissenting opinion of Mr.
vs. Meer, supra, to the effect that the collection of income tax on the Justice Ozaeta in Perfecto vs. Meer, 85 Phil., 552, in which I concurred.
salary of a judicial officer is a diminution thereof and so violates the But I disagree with the majority in ruling that no legislation may provide
Constitution. We further hold that the interpretation and application of that it be held valid although against a provision of the Constitution.
the Constitution and of statutes is within the exclusive province and
jurisdiction of the Judicial department, and that in enacting a law, the
Legislature may not legally provide therein that it be interpreted in such
a way that it may not violate a Constitutional prohibition, thereby tying
the hands of the courts in their task of later interpreting said statute,
specially when the interpretation sought and provided in said statute
runs counter to a previous interpretation already given in a case by the
highest court of the land.

In the views of the foregoing considerations, the decision appealed from

is hereby affirmed, with no pronouncement as to costs.

Pablo, Bengzon, Padilla, Tuason, Reyes, and Labrador, JJ., concur.

Separate Opinions

BAUTISTA ANGELO, J., concurring:

Without expressing any opinion on the doctrine laid down by this Court
in the case of Perfecto vs. Meer, G. R. No. L-2314, in view of the part I had
in that case as former Solicitor General, I wish however to state that I
concur in the opinion of the majority to the effect that section 13,
Republic Act No. 590, in so far as it provides that taxing of the salary of a
judicial officer shall be considered "not to be a diminution of his
compensation fixed by the Constitution or by law", constitutes an
invasion of the province and jurisdiction of the judiciary. In this sense, I
am of the opinion that said section is null and void, it being a

5

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127685 July 23, 1998
BLAS F. OPLE, petitioner,
vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA,
CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA,
CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF
THE NATIONAL COMPUTER CENTER and CHAIRMAN OF THE
COMMISSION ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F.
Ople to prevent the shrinking of the right to privacy, which the revered
Mr. Justice Brandeis considered as "the most comprehensive of rights
and the right most valued by civilized men." 1 Petitioner Ople prays that
we invalidate Administrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference System" on two
important constitutional grounds, viz: one, it is a usurpation of the
power of Congress to legislate, and two, it impermissibly intrudes on our
citizenry's protected zone of privacy. We grant the petition for the rights
sought to be vindicated by the petitioner need stronger barriers against
further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos On December 12,
1996 and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
Constitutional Law 1 Cases (D)
WHEREAS, there is a need to provide Filipino citizens
and foreign residents with the facility to conveniently
transact business with basic service and social security
providers and other government instrumentalities;
WHEREAS, this will require a computerized system to
properly and efficiently identify persons seeking basic
services on social security and reduce, if not totally
eradicate fraudulent transactions and
misrepresentations;
WHEREAS, a concerted and collaborative effort among
the various basic services and social security providing
agencies and other government intrumentalities is
required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the
Republic of the Philippines, by virtue of the powers
vested in me by law, do hereby direct the following:
Sec. 1. Establishment of a National Compoterized
Identification Reference System. A decentralized
Identification Reference System among the key basic
services and social security providers is hereby
established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-
Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the
implementation of the System is hereby created, chaired
by the Executive Secretary, with the following as
members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local
Government
Secretary, Department of Health
6

Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center (NCC)
is hereby designated as secretariat to the IACC and as
such shall provide administrative and technical support
to the IACC.
Sec. 4. Linkage Among Agencies. The Population
Reference Number (PRN) generated by the NSO shall
serve as the common reference number to establish a
linkage among concerned agencies. The IACC Secretariat
shall coordinate with the different Social Security and
Services Agencies to establish the standards in the use of
Biometrics Technology and in computer application
designs of their respective systems.
Sec. 5. Conduct of Information Dissemination Campaign.
The Office of the Press Secretary, in coordination with
the National Statistics Office, the GSIS and SSS as lead
agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign
to educate and raise public awareness on the importance
and use of the PRN and the Social Security Identification
Reference.
Sec. 6. Funding. The funds necessary for the
implementation of the system shall be sourced from the
respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and
SSS shall submit regular reports to the Office of the
President through the IACC, on the status of
implementation of this undertaking.
Constitutional Law 1 Cases (D)
Sec. 8. Effectivity. This Administrative Order shall take
effect immediately.
DONE in the City of Manila, this 12th day of December in
the year of Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of general circulation on
January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner
filed the instant petition against respondents, then Executive Secretary
Ruben Torres and the heads of the government agencies, who as
members of the Inter-Agency Coordinating Committee, are charged with
the implementation of A.O. No. 308. On April 8, 1997, we issued a
temporary restraining order enjoining its implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A NATIONAL
COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM
REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O.
NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL
USURPATION OF THE LEGISLATIVE POWERS OF THE
CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE
PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO.
308 IS AN UNCONSTITUTIONAL USURPATION OF THE
EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE
PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY
LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL
VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE
CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE
AS WOULD WARRANT A JUDICIAL REVIEW;
7

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE
EXECUTIVE AND ADMINISTRATIVE POWERS OF THE
PRESIDENT WITHOUT ENCROACHING ON THE
LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION
OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE
SOURCED FROM THE BUDGETS OF THE CONCERNED
AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S
INTEREST IN PRIVACY. 3
We now resolve.
I particularly, violates their right to privacy.
As is usual in constitutional litigation, respondents raise the threshold
issues relating to the standing to sue of the petitioner and the
justiciability of the case at bar. More specifically, respondents aver that
petitioner has no legal interest to uphold and that the implementing
rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople
is a distinguished member of our Senate. As a Senator, petitioner is
possessed of the requisite standing to bring suit raising the issue that the
issuance of A.O. No. 308 is a usurpation of legislative power. 4 As
taxpayer and member of the Government Service Insurance System
(GSIS), petitioner can also impugn the legality of the misalignment of
public funds and the misuse of GSIS funds to implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is not affected by the
fact that the implementing rules of A.O. No. 308 have yet to be
promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as
infirmed on its face. His action is not premature for the rules yet to be
promulgated cannot cure its fatal defects. Moreover, the respondents
themselves have started the implementation of A.O. No. 308 without
waiting for the rules. As early as January 19, 1997, respondent Social
Security System (SSS) caused the publication of a notice to bid for the
manufacture of the National Identification (ID) card. 6 Respondent
Executive Secretary Torres has publicly announced that representatives
Constitutional Law 1 Cases (D)
from the GSIS and the SSS have completed the guidelines for the national
identification system. 7 All signals from the respondents show their
unswerving will to implement A.O. No. 308 and we need not wait for the
formality of the rules to pass judgment on its constitutionality. In this
light, the dissenters insistence that we tighten the rule on standing is not
a commendable stance as its result would be to throttle an important
constitutional principle and a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308 is
not a mere administrative order but a law and hence, beyond the power
of the President to issue. He alleges that A.O. No. 308 establishes a
system of identification that is all-encompassing in scope, affects the life
and liberty of every Filipino citizen and foreign resident, and more
Petitioner's sedulous concern for the Executive not to trespass on the
lawmaking domain of Congress is understandable. The blurring of the
demarcation line between the power of the Legislature to make laws and
the power of the Executive to execute laws will disturb their delicate
balance of power and cannot be allowed. Hence, the exercise by one
branch of government of power belonging to another will be given a
stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not indistinct.
Legislative power is "the authority, under the Constitution, to make laws,
and to alter and repeal them." 8 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. 9 The grant of legislative
power to Congress is broad, general and comprehensive. 10 The
legislative body possesses plenary power for all purposes of civil
government. 11 Any power, deemed to be legislative by usage and
tradition, is necessarily possessed by Congress, unless the Constitution
has lodged it elsewhere. 12 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. 13
While Congress is vested with the power to enact laws, the President
executes the laws. 14 The executive power is vested in the Presidents. 15
It is generally defined as the power to enforce and administer the laws.
8

16 It is the power of carrying the laws into practical operation and
enforcing their due observance. 17
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.
18 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.19 Corollary to the power of control, the
President also has the duty of supervising the 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. 20
Administrative power is concerned with the work of applying policies
and enforcing orders as determined by proper governmental organs. 21
It enables the President to fix a uniform standard of administrative
efficiency and check the official conduct of his agents. 22 To this end, he
can issue administrative orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a
subject that is not appropriate to be covered by an administrative order.
An administrative order is:
Sec. 3. Administrative Orders. — Acts of the President
which relate to particular aspects of governmental
operation in pursuance of his duties as administrative
head shall be promulgated in administrative orders. 23
An administrative order is an ordinance issued by the President
which relates to specific aspects in the administrative operation
of government. It must be in harmony with the law and should
be for the sole purpose of implementing the law and carrying out
the legislative policy. 24 We reject the argument that A.O. No.
308 implements the legislative policy of the Administrative Code
of 1987. The Code is a general law and "incorporates in a unified
document the major structural, functional and procedural
principles of governance." 25 and "embodies changes in
administrative structure and procedures designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I
Constitutional Law 1 Cases (D)
deals with Sovereignty and General Administration, Book II with
the Distribution of Powers of the three branches of Government,
Book III on the Office of the President, Book IV on the Executive
Branch, Book V on Constitutional Commissions, Book VI on
National Government Budgeting, and Book VII on Administrative
Procedure. These Books contain provisions on the organization,
powers and general administration of the executive, legislative
and judicial branches of government, the organization and
administration of departments, bureaus and offices under the
executive branch, the organization and functions of the
Constitutional Commissions and other constitutional bodies, the
rules on the national government budget, as well as guideline for
the exercise by administrative agencies of quasi-legislative and
quasi-judicial powers. The Code covers both the internal
administration of government, i.e, internal organization,
personnel and recruitment, supervision and discipline, and the
effects of the functions performed by administrative officials on
private individuals or parties outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely implements
the Administrative Code of 1987. It establishes for the first time a
National Computerized Identification Reference System. Such a System
requires a delicate adjustment of various contending state policies — the
primacy of national security, the extent of privacy interest against
dossier-gathering by government, the choice of policies, etc. Indeed, the
dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the
all-important freedom of thought. As said administrative order redefines
the parameters of some basic rights of our citizenry vis-a-vis the State as
well as the line that separates the administrative power of the President
to make rules and the legislative power of Congress, it ought to be
evident that it deals with a subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a
law because it confers no right, imposes no duty, affords no proctection,
and creates no office. Under A.O. No. 308, a citizen cannot transact
business with government agencies delivering basic services to the
people without the contemplated identification card. No citizen will
refuse to get this identification card for no one can avoid dealing with
government. It is thus clear as daylight that without the ID, a citizen will
have difficulty exercising his rights and enjoying his privileges. Given
9

this reality, the contention that A.O. No. 308 gives no right and imposes
no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the
limits of administrative legislation and consequently erodes the plenary
power of Congress to make laws. This is contrary to the established
approach defining the traditional limits of administrative legislation. As
well stated by Fisher: ". . . Many regulations however, bear directly on
the public. It is here that administrative legislation must he restricted in
its scope and application. Regulations are not supposed to be a
substitute for the general policy-making that Congress enacts in the form
of a public law. Although administrative regulations are entitled to
respect, the authority to prescribe rules and regulations is not an
independent source of power to make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law,
still it cannot pass constitutional muster as an administrative legislation
because facially it violates the right to privacy. The essence of privacy is
the "right to be let alone." 29 In the 1965 case of Griswold v. Connecticut,
30 the United States Supreme Court gave more substance to the right of
privacy when it ruled that the right has a constitutional foundation. It
held that there is a right of privacy which can be found within the
penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, 31
viz:
Specific guarantees in the Bill of Rights have penumbras
formed by emanations from these guarantees that help
give them life and substance . . . various guarantees
create zones of privacy. The right of association
contained in the penumbra of the First Amendment is
one, as we have seen. The Third Amendment in its
prohibition against the quartering of soldiers "in any
house" in time of peace without the consent of the owner
is another facet of that privacy. The Fourth Amendment
explicitly affirms the ''right of the people to be secure in
their persons, houses and effects, against unreasonable
searches and seizures." The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to create a zone
of privacy which government may not force him to
Constitutional Law 1 Cases (D)
surrender to his detriment. The Ninth Amendment
provides: "The enumeration in the Constitution, of
certain rights, shall not be construed to deny or
disparage others retained by the people."
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold
ruling that there is a constitutional right to privacy. Speaking
thru Mr. Justice, later Chief Justice, Enrique Fernando, we held:
xxx xxx xxx
The Griswold case invalidated a Connecticut statute
which made the use of contraceptives a criminal offence
on the ground of its amounting to an unconstitutional
invasion of the right of privacy of married persons;
rightfully it stressed "a relationship lying within the zone
of privacy created by several fundamental constitutional
guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as
such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of
constitutional protection. The language of Prof. Emerson
is particularly apt: "The concept of limited government
has always included the idea that governmental powers
stop short of certain intrusions into the personal life of
the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and
pervasive control of the individual, in all aspects of his
life, is the hallmark of the absolute state. In contrast, a
system of limited government safeguards a private
sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state
can control. Protection of this private sector —
protection, in other words, of the dignity and integrity of
the individual — has become increasingly important as
modern society has developed. All the forces of a
technological age — industrialization, urbanization, and
organization — operate to narrow the area of privacy
and facilitate intrusion into it. In modern terms, the
10

capacity to maintain and support this enclave of private
life marks the difference between a democratic and a
totalitarian society."
Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of our
Constitution. 33 It is expressly recognized in section 3 (1) of the Bill of
Rights:
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order
requires otherwise as prescribed by law.
Other facets of the right to privacy are protectad in various
provisions of the Bill of Rights, viz: 34
Sec. 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.
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 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.
xxx xxx xxx
Sec. 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.
Constitutional Law 1 Cases (D)
xxx xxx xxx
Sec. 8. The right of the people, including those employed
in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to
law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness
against himself.
Zones of privacy are likewise recognized and protected in our laws. The
Civil Code provides that "[e]very person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other
persons" and punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. 35 It also holds a public
officer or employee or any private individual liable for damages for any
violation of the rights and liberties of another person, 36 and recognizes
the privacy of letters and other private communications. 37 The Revised
Penal Code makes a crime the violation of secrets by an officer, 38 the
revelation of trade and industrial secrets, 39 and trespass to dwelling. 40
Invasion of privacy is an offense in special laws like the Anti-
Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the
Intellectual Property Code. 43 The Rules of Court on privileged
communication likewise recognize the privacy of certain information. 44
Unlike the dissenters, we prescind from the premise that the right to
privacy is a fundamental right guaranteed by the Constitution, hence, it
is the burden of government to show that A.O. No. 308 is justified by
some compelling state interest and that it is narrowly drawn. A.O. No.
308 is predicated on two considerations: (1) the need to provides our
citizens and foreigners with the facility to conveniently transact business
with basic service and social security providers and other government
instrumentalities and (2) the need to reduce, if not totally eradicate,
fraudulent transactions and misrepresentations by persons seeking
basic services. It is debatable whether these interests are compelling
enough to warrant the issuance of A.O. No. 308. But what is not arguable
is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if
implemented will put our people's right to privacy in clear and present
danger.
11

The heart of A.O. No. 308 lies in its Section 4 which provides for a
Population Reference Number (PRN) as a "common reference number to
establish a linkage among concerned agencies" through the use of
"Biometrics Technology" and "computer application designs."
Biometry or biometrics is "the science of the applicatin of statistical
methods to biological facts; a mathematical analysis of biological data."
45 The term "biometrics" has evolved into a broad category of
technologies which provide precise confirmation of an individual's
identity through the use of the individual's own physiological and
behavioral characteristics. 46 A physiological characteristic is a
relatively stable physical characteristic such as a fingerprint, retinal
scan, hand geometry or facial features. A behavioral characteristic is
influenced by the individual's personality and includes voice print,
signature and keystroke. 47 Most biometric idenfication systems use a
card or personal identificatin number (PIN) for initial identification. The
biometric measurement is used to verify that the individual holding the
card or entering the PIN is the legitimate owner of the card or PIN. 48
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into an
individual number which is called a biocrypt. The biocrypt is stored in
computer data banks 49 and becomes a means of identifying an
individual using a service. This technology requires one's fingertip to be
scanned every time service or access is provided. 50 Another method is
the retinal scan. Retinal scan technology employs optical technology to
map the capillary pattern of the retina of the eye. This technology
produces a unique print similar to a finger print. 51 Another biometric
method is known as the "artificial nose." This device chemically analyzes
the unique combination of substances excreted from the skin of people.
52 The latest on the list of biometric achievements is the thermogram.
Scientists have found that by taking pictures of a face using infra-red
cameras, a unique heat distribution pattern is seen. The different
densities of bone, skin, fat and blood vessels all contribute to the
individual's personal "heat signature." 53
In the last few decades, technology has progressed at a galloping rate.
Some science fictions are now science facts. Today, biometrics is no
longer limited to the use of fingerprint to identify an individual. It is a
new science that uses various technologies in encoding any and all
biological characteristics of an individual for identification. It is
Constitutional Law 1 Cases (D)
noteworthy that A.O. No. 308 does not state what specific biological
characteristics and what particular biometrics technology shall be used
to identify people who will seek its coverage. Considering the banquest
of options available to the implementors of A.O. No. 308, the fear that it
threatens the right to privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show
that it does not state whether encoding of data is limited to biological
information alone for identification purposes. In fact, the Solicitor
General claims that the adoption of the Identification Reference System
will contribute to the "generation of population data for development
planning." 54 This is an admission that the PRN will not be used solely
for identification but the generation of other data with remote relation
to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of
A.O. No. 308 can give the government the roving authority to store and
retrieve information for a purpose other than the identification of the
individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308
cannot be undarplayed as the dissenters do. Pursuant to said
administrative order, an individual must present his PRN everytime he
deals with a government agency to avail of basic services and security.
His transactions with the government agency will necessarily be
recorded — whether it be in the computer or in the documentary file of
the agency. The individual's file may include his transactions for loan
availments, income tax returns, statement of assets and liabilities,
reimbursements for medication, hospitalization, etc. The more frequent
the use of the PRN, the better the chance of building a huge formidable
informatin base through the electronic linkage of the files. 55 The data
may be gathered for gainful and useful government purposes; but the
existence of this vast reservoir of personal information constitutes a
covert invitation to misuse, a temptation that may be too great for some
of our authorities to resist. 56
We can even grant, arguendo, that the computer data file will be limited
to the name, address and other basic personal infomation about the
individual. 57 Even that hospitable assumption will not save A.O. No. 308
from constitutional infirmity for again said order does not tell us in clear
and categorical terms how these information gathered shall he handled.
It does not provide who shall control and access the data, under what
circumstances and for what purpose. These factors are essential to
12

safeguard the privacy and guaranty the integrity of the information. 58
Well to note, the computer linkage gives other government agencies
access to the information. Yet, there are no controls to guard against
leakage of information. When the access code of the control programs of
the particular computer system is broken, an intruder, without fear of
sanction or penalty, can make use of the data for whatever purpose, or
worse, manipulate the data stored within the system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that
personal information which will be gathered about our people will only
be processed for unequivocally specified purposes. 60 The lack of proper
safeguards in this regard of A.O. No. 308 may interfere with the
individual's liberty of abode and travel by enabling authorities to track
down his movement; it may also enable unscrupulous persons to access
confidential information and circumvent the right against self-
incrimination; it may pave the way for "fishing expeditions" by
government authorities and evade the right against unreasonable
searches and seizures. 61 The possibilities of abuse and misuse of the
PRN, biometrics and computer technology are accentuated when we
consider that the individual lacks control over what can be read or
placed on his ID, much less verify the correctness of the data encoded. 62
They threaten the very abuses that the Bill of Rights seeks to prevent. 63
The ability of sophisticated data center to generate a comprehensive
cradle-to-grave dossier on an individual and transmit it over a national
network is one of the most graphic threats of the computer revolution.
64 The computer is capable of producing a comprehensive dossier on
individuals out of information given at different times and for varied
purposes. 65 It can continue adding to the stored data and keeping the
information up to date. Retrieval of stored date is simple. When
information of a privileged character finds its way into the computer, it
can be extracted together with other data on the subject. 66 Once
extracted, the information is putty in the hands of any person. The end of
privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting
opinions would dismiss its danger to the right to privacy as speculative
and hypothetical. Again, we cannot countenance such a laidback posture.
The Court will not be true to its role as the ultimate guardian of the
people's liberty if it would not immediately smother the sparks that
Constitutional Law 1 Cases (D)
endanger their rights but would rather wait for the fire that could
consume them.
We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the Natioal ID and the
use of biometrics technology as it stands on quicksand. The
reasonableness of a person's expectation of privacy depends on a two-
part test: (1) whether by his conduct, the individual has exhibited an
expectation of privacy; and (2) whether this expectation is one that
society recognizes as reasonable. 67 The factual circumstances of the
case determines the reasonableness of the expectation. 68 However,
other factors, such as customs, physical surroundings and practices of a
particular activity, may serve to create or diminish this expectation. 69
The use of biometrics and computer technology in A.O. No. 308 does not
assure the individual of a reasonable expectation of privacy. 70 As
technology advances, the level of reasonably expected privacy decreases.
71 The measure of protection granted by the reasonable expectation
diminishes as relevant technology becomes more widely accepted. 72
The security of the computer data file depends not only on the physical
inaccessibility of the file but also on the advances in hardware and
software computer technology. A.O. No. 308 is so widely drawn that a
minimum standard for a reasonable expectation of privacy, regardless of
technology used, cannot be inferred from its provisions.
The rules and regulations to be by the IACC cannot remedy this fatal
defect. Rules and regulations merely implement the policy of the law or
order. On its face, A.O. No. gives the IACC virtually infettered discretion
to determine the metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards for a reasonable
expectation of privacy. Commonwealth Act. No. 591 penalizes the
disclosure by any person of data furnished by the individual to the NSO
with imprisonment and fine. 73 Republic Act. No. 1161 prohibits public
disclosure of SSS employment records and reports. 74 These laws,
however, apply to records and data with the NSO and the SSS. It is not
clear whether they may be applied to data with the other government
agencies forming part of the National ID System. The need to clarify the
penal aspect of A.O. No. 308 is another reason why its enactment should
be given to Congress.
13

Next, the Solicitor General urges us to validate A.O. No. 308's abridgment
of the right of privacy by using the rational relationship test. 75 He
stressed that the purposes of A.O. No. 308 are: (1) to streamline and
speed up the implementation of basic government services, (2) eradicate
fraud by avoiding duplication of services, and (3) generate population
data for development planning. He cocludes that these purposes justify
the incursions into the right to privacy for the means are rationally
related to the end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld
the constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices
Act, as a valid police power measure. We declared that the law, in
compelling a public officer to make an annual report disclosing his assets
and liabilities, his sources of income and expenses, did not infringe on
the individual's right to privacy. The law was enacted to promote
morality in public administration by curtailing and minimizing the
opportunities for official corruption and maintaining a standard of
honesty in the public service. 78
The same circumstances do not obtain in the case at bar. For one, R.A.
3019 is a statute, not an administrative order. Secondly, R.A. 3019 itself
is sufficiently detailed. The law is clear on what practices were
prohibited and penalized, and it was narrowly drawn to avoid abuses. IN
the case at bar, A.O. No. 308 may have been impelled by a worthy
purpose, but, it cannot pass constitutional scrutiny for it is not narrowly
drawn. And we now hod that when the integrity of a fundamental right is
at stake, this court will give the challenged law, administrative order,
rule or regulation a stricter scrutiny. It will not do for the authorities to
invoke the presumption of regularity in the performance of official
duties. Nor is it enough for the authorities to prove that their act is not
irrational for a basic right can be diminished, if not defeated, even when
the government does not act irrationally. They must satisfactorily show
the presence of compelling state interests and that the law, rule or
regulation is narrowly drawn to preclude abuses. This approach is
demanded by the 1987 Constitution whose entire matrix is designed to
protect human rights and to prevent authoritarianism. In case of doubt,
the least we can do is to lean towards the stance that will not put in
danger the rights protected by the Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line.
In Whalen, the United States Supreme Court was presented with the
Constitutional Law 1 Cases (D)
question of whether the State of New York could keep a centralized
computer record of the names and addresses of all persons who
obtained certain drugs pursuant to a doctor's prescription. The New
York State Controlled Substance Act of 1972 required physicians to
identify parties obtaining prescription drugs enumerated in the statute,
i.e., drugs with a recognized medical use but with a potential for abuse,
so that the names and addresses of the patients can be recorded in a
centralized computer file of the State Department of Health. The
plaintiffs, who were patients and doctors, claimed that some people
might decline necessary medication because of their fear that the
computerized data may be readily available and open to public
disclosure; and that once disclosed, it may stigmatize them as drug
addicts. 80 The plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e., the individual interest in
avoiding disclosure of personal matters, and the interest in
independence in making certain kinds of important decisions. The U.S.
Supreme Court held that while an individual's interest in avoiding
disclosuer of personal matter is an aspect of the right to privacy, the
statute did not pose a grievous threat to establish a constitutional
violation. The Court found that the statute was necessary to aid in the
enforcement of laws designed to minimize the misuse of dangerous
drugs. The patient-identification requirement was a product of an
orderly and rational legislative decision made upon recommmendation
by a specially appointed commission which held extensive hearings on
the matter. Moreover, the statute was narrowly drawn and contained
numerous safeguards against indiscriminate disclosure. The statute laid
down the procedure and requirements for the gathering, storage and
retrieval of the informatin. It ebumerated who were authorized to access
the data. It also prohibited public disclosure of the data by imposing
penalties for its violation. In view of these safeguards, the infringement
of the patients' right to privacy was justified by a valid exercise of police
power. As we discussed above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the
Court is not per se agains the use of computers to accumulate, store,
process, retvieve and transmit data to improve our bureaucracy.
Computers work wonders to achieve the efficiency which both
government and private industry seek. Many information system in
different countries make use of the computer to facilitate important
social objective, such as better law enforcement, faster delivery of public
services, more efficient management of credit and insurance programs,
14

improvement of telecommunications and streamlining of financial
activities. 81 Used wisely, data stored in the computer could help good
administration by making accurate and comprehensive information for
those who have to frame policy and make key decisions. 82 The benefits
of the computer has revolutionized information technology. It developed
the internet, 83 introduced the concept of cyberspace 84 and the
information superhighway where the individual, armed only with his
personal computer, may surf and search all kinds and classes of
information from libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does
not bar all incursions into individual privacy. The right is not intended to
stifle scientific and technological advancements that enhance public
service and the common good. It merely requires that the law be
narrowly focused 85 and a compelling interest justify such intrusions. 86
Intrusions into the right must be accompanied by proper safeguards and
well-defined standards to prevent unconstitutional invasions. We
reiterate that any law or order that invades individual privacy will be
subjected by this Court to strict scrutiny. The reason for this stance was
laid down in Morfe v. Mutuc, to wit:
The concept of limited government has always included
the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is
indeed one of the basic disctinctions between absolute
and limited government. Ultimate and pervasive control
of the individual, in all aspects of his life, is the hallmark
of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs
to the individual, firmly distinguishing it from the public
sector, which the state can control. Protection of this
private sector — protection, in other words, of the
dignity and integrity of the individual — has become
increasingly important as modern society has developed.
All the forces of a technological age — industrialization,
urbanization, and organization — operate to narrow the
area of privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this enclave
of private life marks the difference between a democratic
and a totalitarian society. 87
Constitutional Law 1 Cases (D)
IV
The right to privacy is one of the most threatened rights of man living in
a mass society. The threats emanate from various sources —
governments, journalists, employers, social scientists, etc. 88 In th case at
bar, the threat comes from the executive branch of government which by
issuing A.O. No. 308 pressures the people to surrender their privacy by
giving information about themselves on the pretext that it will facilitate
delivery of basic services. Given the record-keeping power of the
computer, only the indifferent fail to perceive the danger that A.O. No.
308 gives the government the power to compile a devastating dossier
against unsuspecting citizens. It is timely to take note of the well-worded
warning of Kalvin, Jr., "the disturbing result could be that everyone will
live burdened by an unerasable record of his past and his limitations. In
a way, the threat is that because of its record-keeping, the society will
have lost its benign capacity to forget." 89 Oblivious to this counsel, the
dissents still say we should not be too quick in labelling the right to
privacy as a fundamental right. We close with the statement that the
right to privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Adminisrative Order No.
308 entitled "Adoption of a National Computerized Identification
Reference System" declared null and void for being unconstitutional.
SO ORDERED.
Bellosillo and Martinez, JJ., concur.
Narvasa, C.J., I join Justices Kapunan and Mendoza in their dissents.
Regalado, J., In the result.
Davide, Jr., In the result and I join Mr. Justice Panganiban in his separate
opinion.
Romero, J., Please see separate opinion.
Melo, J., I join the dissents of Justices Kapunan and Mendoza.
Vitug, J., See separate opinion.
15

Kapunan, J., See dissenting opinion.
Mendoza, J., Please see dissenting opinion.
Panganiban, J., Please see Separate Opinion.
Quisumbing, J., I join in dissenting opinion of JJ. Mendoza and Kapunan.
Purisima, J., I join in Justice Mendoza's dissenting.
Separate Opinions
ROMERO, J., separate opinion;
What marks offs man from a beast?
Aside from the distinguishing physical characteristics, man is a rational
being, one who is endowed with intellect which allows him to apply
reasoned judgment to problems at hand; he has the innate spiritual
faculty which can tell, not only what is right but, as well, what is moral
and ethical. Because of his sensibilities, emotions and feelings, he
likewise possesses a sense of shame. In varying degrees as dictated by
diverse cultures, he erects a wall between himself and the outside world
wherein he can retreat in solitude, protecting himself from prying eyes
and ears and their extensions, whether form individuals, or much later,
from authoritarian intrusions.
Piercing through the mists of time, we find the original Man and Woman
defying the injunction of God by eating of the forbidden fruit in the
Garden. And when their eyes were "opened" forthwith "they sewed fig
leaves together, and made themselves aprons." 1 Down the corridors of
time, we find man fashioning "fig leaves" of sorts or setting up figurative
walls, the better to insulate themselves from the rest of humanity.
Such vague stirrings of the desire "to be left alone," considered "anti-
social" by some, led to the development of the concept of "privacy,"
unheard of among beasts. Different branches of science, have made their
own studies of this craving of the human spirit — psychological,
anthropological sociological and philosophical, with the legal finally
giving its imprimatur by elevating it to the status ofa right, specifically a
private right.
Constitutional Law 1 Cases (D)
Initially recognized as an aspect of tort law, it created giant waves in
legal circles with the publication in the Harvard Law Review 2 of the
trail-blazing article, "The Right to Privacy," by Samuel D. Warren and
Louis D. Brandeis.
Whether viewed as a personal or a property right, it found its way in
Philippine Constitutions and statutes; this, in spite of the fact that
Philippine culture can hardly be said to provide a fertile field for the
burgeoning of said right. In fact, our lexicographers have yet to coin a
word for it in the Filipino language. Customs and practices, being what
they have always been, Filipinos think it perfectly natural and in good
taste to inquire into each other's intimate affairs.
One has only to sit through a televised talk show to be convinced that
what passes for wholesome entertainment is actually an invasion into
one's private life, leaving the interviewee embarrassed and outraged by
turns.
With the overarching influence of common law and the recent advent of
the Information Age with its high-tech devices, the right to privacy has
expanded to embrace its public law aspect. The Bill of Rights of our
evolving Charters, a direct transplant from that of the United States,
contains in essence facets of the right to privacy which constitute
limitations on the far-reaching powers of government.
So terrifying are the possibilities of a law such as Administrative Order
No. 308 in making inroads into the private lives of the citizens, a virtual
Big Brother looking over our shoulder, that it must, without delay, be
"slain upon sight" before our society turns totalitarian with each of us, a
mindless robot.
I, therefore, VOTE for the nullification of A.O. No. 308.
16

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 167798 April 19, 2006
KILUSANG MAYO UNO, NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO (NAFLU-KMU), JOSELITO V. USTAREZ, EMILIA
P. DAPULANG, SALVADOR T. CARRANZA, MARTIN T. CUSTODIO, JR.
and ROQUE M. TAN, Petitioners,
vs.
THE DIRECTOR-GENERAL, NATIONAL ECONOMIC DEVELOPMENT
AUTHORITY, and THE SECRETARY, DEPARTMENT OF BUDGET and
MANAGEMENT, Respondents.
x-----------------------------------x
G.R. No. 167930 April 19, 2006
BAYAN MUNA Representatives SATUR C. OCAMPO, TEODORO A.
CASIÑO, and JOEL G. VIRADOR, GABRIELA WOMEN’S PARTY
Representative LIZA L. MAZA, ANAKPAWIS Representatives RAFAEL
V. MARIANO and CRISPIN B. BELTRAN, Rep. FRANCIS G. ESCUDERO,
Rep. EDUARDO C. ZIALCITA, Rep. LORENZO R. TAÑADA III, DR.
CAROL PAGADUAN-ARAULLO and RENATO M. REYES, JR. of BAYAN,
MARIE HILAO-ENRIQUEZ of KARAPATAN, ANTONIO L. TINIO of ACT,
FERDINAND GAITE of COURAGE, GIOVANNI A. TAPANG of AGHAM,
WILFREDO MARBELLA GARCIA, of KMP, LANA LINABAN of
GABRIELA, AMADO GAT INCIONG, RENATO CONSTANTINO, JR.,
DEAN PACIFICO H. AGABIN, SHARON R. DUREMDES of the
NATIONAL COUNCIL OF CHURCHES IN THE PHILIPPINES, and BRO.
EDMUNDO L. FERNANDEZ (FSC) of the ASSOCIATION OF MAJOR
RELIGIOUS SUPERIORS OF THE PHILIPPINES (AMRSP), Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, ROMULO
NERI, in his capacity as Director-General of the NATIONAL
ECONOMIC and DEVELOPMENT AUTHORITY (NEDA) and the
Administrator of the NATIONAL STATISTICS OFFICE (NSO),
Respondents.
Constitutional Law 1 Cases (D)
DECISION
CARPIO, J.:
This case involves two consolidated petitions for certiorari, prohibition,
and mandamus under Rule 65 of the Rules of Court, seeking the
nullification of Executive Order No. 420 (EO 420) on the ground that it is
unconstitutional.
EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005,
reads:
REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED
AND CONTROLLED CORPORATIONS TO STREAMLINE AND HARMONIZE
THEIR IDENTIFICATION (ID) SYSTEMS, AND AUTHORIZING FOR SUCH
PURPOSE THE DIRECTOR-GENERAL, NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY TO IMPLEMENT THE SAME, AND FOR
OTHER PURPOSES
WHEREAS, good governance is a major thrust of this Administration;
WHEREAS, the existing multiple identification systems in government
have created unnecessary and costly redundancies and higher costs to
government, while making it inconvenient for individuals to be holding
several identification cards;
WHEREAS, there is urgent need to streamline and integrate the
processes and issuance of identification cards in government to reduce
costs and to provide greater convenience for those transacting business
with government;
WHEREAS, a unified identification system will facilitate private
businesses, enhance the integrity and reliability of government-issued
identification cards in private transactions, and prevent violations of
laws involving false names and identities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines by virtue of the powers vested in me by law,
do hereby direct the following:
17

Section 1. Adoption of a unified multi-purpose identification (ID)
system for government.1avvphil.net – All government agencies,
including government-owned and controlled corporations, are hereby
directed to adopt a unified multi-purpose ID system to ensure the
attainment of the following objectives:
a. To reduce costs and thereby lessen the financial burden on
both the government and the public brought about by the use of
multiple ID cards and the maintenance of redundant database
containing the same or related information;
b. To ensure greater convenience for those transacting business
with the government and those availing of government services;
c. To facilitate private businesses and promote the wider use of
the unified ID card as provided under this executive order;
d. To enhance the integrity and reliability of government-issued
ID cards; and
e. To facilitate access to and delivery of quality and effective
government service.
Section 2. Coverage – All government agencies and government-owned
and controlled corporations issuing ID cards to their members or
constituents shall be covered by this executive order.
Section 3. Data requirement for the unified ID system – The data to be
collected and recorded by the participating agencies shall be limited to
the following:
Name
Home Address
Sex
Picture
Signature
Constitutional Law 1 Cases (D)
Date of Birth
Place of Birth
Marital Status
Names of Parents
Height
Weight
Two index fingers and two thumbmarks
Any prominent distinguishing features like moles and others
Tax Identification Number (TIN)
Provided that a corresponding ID number issued by the participating
agency and a common reference number shall form part of the stored ID
data and, together with at least the first five items listed above, including
the print of the right thumbmark, or any of the fingerprints as collected
and stored, shall appear on the face or back of the ID card for visual
verification purposes.
Section 4. Authorizing the Director-General, National Economic and
Development Authority, to Harmonize All Government Identification
Systems. – The Director-General, National Economic Development
Authority, is hereby authorized to streamline and harmonize all
government ID systems.
Section 5. Functions and responsibilities of the Director-General,
National Economic and Development Authority. – In addition to his
organic functions and responsibilities, the Director-General, National
Economic and Development Authority, shall have the following functions
and responsibilities:
a. Adopt within sixty (60) days from the effectivity of this
executive order a unified government ID system containing only
18

such data and features, as indicated in Section 3 above, to validly
establish the identity of the card holder:
b. Enter into agreements with local governments, through their
respective leagues of governors or mayors, the Commission on
Elections (COMELEC), and with other branches or
instrumentalities of the government, for the purpose of ensuring
government-wide adoption of and support to this effort to
streamline the ID systems in government;
b. Call on any other government agency or institution, or create
sub–committees or technical working groups, to provide such
assistance as may be necessary or required for the effective
performance of its functions; and
d. Promulgate such rules or regulations as may be necessary in
pursuance of the objectives of this executive order.
Section 6. Safeguards. – The Director-General, National Economic and
Development Authority, and the pertinent agencies shall adopt such
safeguard as may be necessary and adequate to ensure that the right to
privacy of an individual takes precedence over efficient public service
delivery. Such safeguards shall, as a minimum, include the following:
a. The data to be recorded and stored, which shall be used only
for purposes of establishing the identity of a person, shall be
limited to those specified in Section 3 of this executive order;
b. In no case shall the collection or compilation of other data in
violation of a person’s right to privacy shall be allowed or
tolerated under this order;
c. Stringent systems of access control to data in the identification
system shall be instituted;
d. Data collected and stored for this purpose shall be kept and
treated as strictly confidential and a personal or written
authorization of the Owner shall be required for access and
disclosure of data;
Constitutional Law 1 Cases (D)
e. The identification card to be issued shall be protected by
advanced security features and cryptographic technology; and
f. A written request by the Owner of the identification card shall
be required for any correction or revision of relevant data, or
under such conditions as the participating agency issuing the
identification card shall prescribe.
Section 7. Funding. – Such funds as may be recommended by the
Department of Budget and Management shall be provided to carry out
the objectives of this executive order.
Section 8. Repealing clause. – All executive orders or issuances, or
portions thereof, which are inconsistent with this executive order, are
hereby revoked, amended or modified accordingly.
Section 9. Effectivity. – This executive order shall take effect fifteen (15)
days after its publication in two (2) newspapers of general circulation.
DONE in the City of Manila, this 13th day of April, in the year of Our Lord,
Two Thousand and Five.
Thus, under EO 420, the President directs all government agencies and
government-owned and controlled corporations to adopt a uniform data
collection and format for their existing identification (ID) systems.
Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional
because it constitutes usurpation of legislative functions by the
executive branch of the government. Furthermore, they allege that EO
420 infringes on the citizen’s right to privacy.1
Petitioners in G.R. No. 167930 allege that EO 420 is void based on the
following grounds:
1. EO 420 is contrary to law. It completely disregards and
violates the decision of this Honorable Court in Ople v. Torres et
al., G.R. No. 127685, July 23, 1998. It also violates RA 8282
otherwise known as the Social Security Act of 1997.
2. The Executive has usurped the legislative power of Congress
as she has no power to issue EO 420. Furthermore, the
19

implementation of the EO will use public funds not appropriated
by Congress for that purpose.
3. EO 420 violates the constitutional provisions on the right to
privacy
(i) It allows access to personal confidential data without
the owner’s consent.
(ii) EO 420 is vague and without adequate safeguards or
penalties for any violation of its provisions.
(iii) There are no compelling reasons that will legitimize
the necessity of EO 420.
4. Granting without conceding that the President may issue EO
420, the Executive Order was issued without public hearing.
5. EO 420 violates the Constitutional provision on equal
protection of laws and results in the discriminatory treatment of
and penalizes those without ID.2
Issues
Essentially, the petitions raise two issues. First, petitioners claim that EO
420 is a usurpation of legislative power by the President. Second,
petitioners claim that EO 420 infringes on the citizen’s right to privacy.
Respondents question the legal standing of petitioners and the ripeness
of the petitions. Even assuming that petitioners are bereft of legal
standing, the Court considers the issues raised under the circumstances
of paramount public concern or of transcendental significance to the
people. The petitions also present a justiciable controversy ripe for
judicial determination because all government entities currently issuing
identification cards are mandated to implement EO 420, which
petitioners claim is patently unconstitutional. Hence, the Court takes
cognizance of the petitions.
The Court’s Ruling
Constitutional Law 1 Cases (D)
The petitions are without merit.
On the Alleged Usurpation of Legislative Power
Section 2 of EO 420 provides, "Coverage. – All government agencies and
government-owned and controlled corporations issuing ID cards to their
members or constituents shall be covered by this executive order." EO
420 applies only to government entities that issue ID cards as part of
their functions under existing laws. These government entities have
already been issuing ID cards even prior to EO 420. Examples of these
government entities are the GSIS,3 SSS,4 Philhealth,5 Mayor’s Office,6
LTO,7 PRC,8 and similar government entities.
Section 1 of EO 420 directs these government entities to "adopt a unified
multi-purpose ID system." Thus, all government entities that issue IDs as
part of their functions under existing laws are required to adopt a
uniform data collection and format for their IDs. Section 1 of EO 420
enumerates the purposes of the uniform data collection and format,
namely:
a. To reduce costs and thereby lessen the financial burden on
both the government and the public brought about by the use of
multiple ID cards and the maintenance of redundant database
containing the same or related information;
b. To ensure greater convenience for those transacting business
with the government and those availing of government services;
c. To facilitate private businesses and promote the wider use of
the unified ID card as provided under this executive order;
d. To enhance the integrity and reliability of government-issued
ID cards; and
e. To facilitate access to and delivery of quality and effective
government service.
In short, the purposes of the uniform ID data collection and ID format
are to reduce costs, achieve efficiency and reliability, insure
compatibility, and provide convenience to the people served by
government entities.
20

Section 3 of EO 420 limits the data to be collected and recorded under
the uniform ID system to only 14 specific items, namely: (1) Name; (2)
Home Address; (3) Sex; (4) Picture; (5) Signature; (6) Date of Birth; (7)
Place of Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11)
Weight; (12) Two index fingers and two thumbmarks; (13) Any
prominent distinguishing features like moles or others; and (14) Tax
Identification Number.
These limited and specific data are the usual data required for personal
identification by government entities, and even by the private sector.
Any one who applies for or renews a driver’s license provides to the LTO
all these 14 specific data.
At present, government entities like LTO require considerably more data
from applicants for identification purposes. EO 420 will reduce the data
required to be collected and recorded in the ID databases of the
government entities. Government entities cannot collect or record data,
for identification purposes, other than the 14 specific data.
Various laws allow several government entities to collect and record
data for their ID systems, either expressly or impliedly by the nature of
the functions of these government entities. Under their existing ID
systems, some government entities collect and record more data than
what EO 420 allows. At present, the data collected and recorded by
government entities are disparate, and the IDs they issue are dissimilar.
In the case of the Supreme Court,9 the IDs that the Court issues to all its
employees, including the Justices, contain 15 specific data, namely: (1)
Name; (2) Picture; (3) Position; (4) Office Code Number; (5) ID Number;
(6) Height; (7) Weight; (8) Complexion; (9) Color of Hair; (10) Blood
Type; (11) Right Thumbmark; (12) Tax Identification Number; (13) GSIS
Policy Number; (14) Name and Address of Person to be Notified in Case
of Emergency; and (15) Signature. If we consider that the picture in the
ID can generally also show the sex of the employee, the Court’s ID
actually contains 16 data.
In contrast, the uniform ID format under Section 3 of EO 420 requires
only "the first five items listed" in Section 3, plus the fingerprint, agency
number and the common reference number, or only eight specific data.
Thus, at present, the Supreme Court’s ID contains far more data than the
proposed uniform ID for government entities under EO 420. The nature
Constitutional Law 1 Cases (D)
of the data contained in the Supreme Court ID is also far more financially
sensitive, specifically the Tax Identification Number.
Making the data collection and recording of government entities unified,
and making their ID formats uniform, will admittedly achieve substantial
benefits. These benefits are savings in terms of procurement of
equipment and supplies, compatibility in systems as to hardware and
software, ease of verification and thus increased reliability of data, and
the user-friendliness of a single ID format for all government entities.
There is no dispute that government entities can individually limit the
collection and recording of their data to the 14 specific items in Section 3
of EO 420. There is also no dispute that these government entities can
individually adopt the ID format as specified in Section 3 of EO 420. Such
an act is certainly within the authority of the heads or governing boards
of the government entities that are already authorized under existing
laws to issue IDs.
A unified ID system for all these government entities can be achieved in
either of two ways. First, the heads of these existing government entities
can enter into a memorandum of agreement making their systems
uniform. If the government entities can individually adopt a format for
their own ID pursuant to their regular functions under existing laws,
they can also adopt by mutual agreement a uniform ID format, especially
if the uniform format will result in substantial savings, greater efficiency,
and optimum compatibility. This is purely an administrative matter, and
does not involve the exercise of legislative power.
Second, the President may by executive or administrative order direct
the government entities under the Executive department to adopt a
uniform ID data collection and format. Section 17, Article VII of the 1987
Constitution provides that the "President shall have control of all
executive departments, bureaus and offices." The same Section also
mandates the President to "ensure that the laws be faithfully executed."
Certainly, under this constitutional power of control the President can
direct all government entities, in the exercise of their functions under
existing laws, to adopt a uniform ID data collection and ID format to
achieve savings, efficiency, reliability, compatibility, and convenience to
the public. The President’s constitutional power of control is self-
executing and does not need any implementing legislation.
21

Of course, the President’s power of control is limited to the Executive
branch of government and does not extend to the Judiciary or to the
independent constitutional commissions. Thus, EO 420 does not apply to
the Judiciary, or to the COMELEC which under existing laws is also
authorized to issue voter’s ID cards.10 This only shows that EO 420 does
not establish a national ID system because legislation is needed to
establish a single ID system that is compulsory for all branches of
government.
The Constitution also mandates the President to ensure that the laws are
faithfully executed. There are several laws mandating government
entities to reduce costs, increase efficiency, and in general, improve
public services.11 The adoption of a uniform ID data collection and
format under EO 420 is designed to reduce costs, increase efficiency, and
in general, improve public services. Thus, in issuing EO 420, the
President is simply performing the constitutional duty to ensure that the
laws are faithfully executed.
Clearly, EO 420 is well within the constitutional power of the President
to promulgate. The President has not usurped legislative power in
issuing EO 420. EO 420 is an exercise of Executive power – the
President’s constitutional power of control over the Executive
department. EO 420 is also compliance by the President of the
constitutional duty to ensure that the laws are faithfully executed.
Legislative power is the authority to make laws and to alter or repeal
them. In issuing EO 420, the President did not make, alter or repeal any
law but merely implemented and executed existing laws. EO 420 reduces
costs, as well as insures efficiency, reliability, compatibility and user-
friendliness in the implementation of current ID systems of government
entities under existing laws. Thus, EO 420 is simply an executive
issuance and not an act of legislation.
The act of issuing ID cards and collecting the necessary personal data for
imprinting on the ID card does not require legislation. Private employers
routinely issue ID cards to their employees. Private and public schools
also routinely issue ID cards to their students. Even private clubs and
associations issue ID cards to their members. The purpose of all these ID
cards is simply to insure the proper identification of a person as an
employee, student, or member of a club. These ID cards, although
imposed as a condition for exercising a privilege, are voluntary because
Constitutional Law 1 Cases (D)
a person is not compelled to be an employee, student or member of a
club.
What require legislation are three aspects of a government maintained
ID card system. First, when the implementation of an ID card system
requires a special appropriation because there is no existing
appropriation for such purpose. Second, when the ID card system is
compulsory on all branches of government, including the independent
constitutional commissions, as well as compulsory on all citizens
whether they have a use for the ID card or not. Third, when the ID card
system requires the collection and recording of personal data beyond
what is routinely or usually required for such purpose, such that the
citizen’s right to privacy is infringed.
In the present case, EO 420 does not require any special appropriation
because the existing ID card systems of government entities covered by
EO 420 have the proper appropriation or funding. EO 420 is not
compulsory on all branches of government and is not compulsory on all
citizens. EO 420 requires a very narrow and focused collection and
recording of personal data while safeguarding the confidentiality of such
data. In fact, the data collected and recorded under EO 420 are far less
than the data collected and recorded under the ID systems existing prior
to EO 420.
EO 420 does not establish a national ID card system. EO 420 does not
compel all citizens to have an ID card. EO 420 applies only to
government entities that under existing laws are already collecting data
and issuing ID cards as part of their governmental functions. Every
government entity that presently issues an ID card will still issue its own
ID card under its own name. The only difference is that the ID card will
contain only the five data specified in Section 3 of EO 420, plus the
fingerprint, the agency ID number, and the common reference number
which is needed for cross-verification to ensure integrity and reliability
of identification.
This Court should not interfere how government entities under the
Executive department should undertake cost savings, achieve efficiency
in operations, insure compatibility of equipment and systems, and
provide user-friendly service to the public. The collection of ID data and
issuance of ID cards are day-to-day functions of many government
entities under existing laws. Even the Supreme Court has its own ID
22

system for employees of the Court and all first and second level courts.
The Court is even trying to unify its ID system with those of the appellate
courts, namely the Court of Appeals, Sandiganbayan and Court of Tax
Appeals.
There is nothing legislative about unifying existing ID systems of all
courts within the Judiciary. The same is true for government entities
under the Executive department. If government entities under the
Executive department decide to unify their existing ID data collection
and ID card issuance systems to achieve savings, efficiency, compatibility
and convenience, such act does not involve the exercise of any legislative
power. Thus, the issuance of EO 420 does not constitute usurpation of
legislative power.
On the Alleged Infringement of the Right to Privacy
All these years, the GSIS, SSS, LTO, Philhealth and other government
entities have been issuing ID cards in the performance of their
governmental functions. There have been no complaints from citizens
that the ID cards of these government entities violate their right to
privacy. There have also been no complaints of abuse by these
government entities in the collection and recording of personal
identification data.
In fact, petitioners in the present cases do not claim that the ID systems
of government entities prior to EO 420 violate their right to privacy.
Since petitioners do not make such claim, they even have less basis to
complain against the unified ID system under EO 420. The data collected
and stored for the unified ID system under EO 420 will be limited to only
14 specific data, and the ID card itself will show only eight specific data.
The data collection, recording and ID card system under EO 420 will
even require less data collected, stored and revealed than under the
disparate systems prior to EO 420.
Prior to EO 420, government entities had a free hand in determining the
kind, nature and extent of data to be collected and stored for their ID
systems. Under EO 420, government entities can collect and record only
the 14 specific data mentioned in Section 3 of EO 420. In addition,
government entities can show in their ID cards only eight of these
specific data, seven less data than what the Supreme Court’s ID shows.
Constitutional Law 1 Cases (D)
Also, prior to EO 420, there was no executive issuance to government
entities prescribing safeguards on the collection, recording, and
disclosure of personal identification data to protect the right to privacy.
Now, under Section 5 of EO 420, the following safeguards are instituted:
a. The data to be recorded and stored, which shall be used only
for purposes of establishing the identity of a person, shall be
limited to those specified in Section 3 of this executive order;
b. In no case shall the collection or compilation of other data in
violation of a person’s right to privacy be allowed or tolerated
under this order;
c. Stringent systems of access control to data in the identification
system shall be instituted;
d. Data collected and stored for this purpose shall be kept and
treated as strictly confidential and a personal or written
authorization of the Owner shall be required for access and
disclosure of data;
e. The identification card to be issued shall be protected by
advanced security features and cryptographic technology;
f. A written request by the Owner of the identification card shall
be required for any correction or revision of relevant data, or
under such conditions as the participating agency issuing the
identification card shall prescribe.
On its face, EO 420 shows no constitutional infirmity because it even
narrowly limits the data that can be collected, recorded and shown
compared to the existing ID systems of government entities. EO 420
further provides strict safeguards to protect the confidentiality of the
data collected, in contrast to the prior ID systems which are bereft of
strict administrative safeguards.
The right to privacy does not bar the adoption of reasonable ID systems
by government entities. Some one hundred countries have compulsory
national ID systems, including democracies such as Spain, France,
Germany, Belgium, Greece, Luxembourg, and Portugal. Other countries
which do not have national ID systems, like the United States, Canada,
23

Australia, New Zealand, Ireland, the Nordic Countries and Sweden, have
sectoral cards for health, social or other public services.12 Even with EO
420, the Philippines will still fall under the countries that do not have
compulsory national ID systems but allow only sectoral cards for social
security, health services, and other specific purposes.
Without a reliable ID system, government entities like GSIS, SSS,
Philhealth, and LTO cannot perform effectively and efficiently their
mandated functions under existing laws. Without a reliable ID system,
GSIS, SSS, Philhealth and similar government entities stand to suffer
substantial losses arising from false names and identities. The integrity
of the LTO’s licensing system will suffer in the absence of a reliable ID
system.
The dissenting opinion cites three American decisions on the right to
privacy, namely, Griswold v. Connecticut,13 U.S. Justice Department v.
Reporters Committee for Freedom of the Press,14 and Whalen v. Roe.15
The last two decisions actually support the validity of EO 420, while the
first is inapplicable to the present case.
In Griswold, the U.S. Supreme Court declared unconstitutional a state
law that prohibited the use and distribution of contraceptives because
enforcement of the law would allow the police entry into the bedrooms
of married couples. Declared the U.S. Supreme Court: "Would we allow
the police to search the sacred precincts of the marital bedrooms for
telltale signs of the use of contraceptives? The very idea is repulsive to
the notions of privacy surrounding the marriage relationship." Because
the facts and the issue involved in Griswold are materially different from
the present case, Griswold has no persuasive bearing on the present
case.
In U.S. Justice Department, the issue was not whether the State could
collect and store information on individuals from public records
nationwide but whether the State could withhold such information from
the press. The premise of the issue in U.S. Justice Department is that the
State can collect and store in a central database information on citizens
gathered from public records across the country. In fact, the law
authorized the Department of Justice to collect and preserve fingerprints
and other criminal identification records nationwide. The law also
authorized the Department of Justice to exchange such information with
"officials of States, cities and other institutions." The Department of
Constitutional Law 1 Cases (D)
Justice treated such information as confidential. A CBS news
correspondent and the Reporters Committee demanded the criminal
records of four members of a family pursuant to the Freedom of
Information Act. The U.S. Supreme Court ruled that the Freedom of
Information Act expressly exempts release of information that would
"constitute an unwarranted invasion of personal privacy," and the
information demanded falls under that category of exempt information.
With the exception of the 8 specific data shown on the ID card, the
personal data collected and recorded under EO 420 are treated as
"strictly confidential" under Section 6(d) of EO 420. These data are not
only strictly confidential but also personal matters. Section 7, Article III
of the 1987 Constitution grants the "right of the people to information
on matters of public concern." Personal matters are exempt or outside
the coverage of the people’s right to information on matters of public
concern. The data treated as "strictly confidential" under EO 420 being
private matters and not matters of public concern, these data cannot be
released to the public or the press. Thus, the ruling in U.S. Justice
Department does not collide with EO 420 but actually supports the
validity EO 420.
Whalen v. Roe is the leading American case on the constitutional
protection for control over information. In Whalen, the U.S. Supreme
Court upheld the validity of a New York law that required doctors to
furnish the government reports identifying patients who received
prescription drugs that have a potential for abuse. The government
maintained a central computerized database containing the names and
addresses of the patients, as well as the identity of the prescribing
doctors. The law was assailed because the database allegedly infringed
the right to privacy of individuals who want to keep their personal
matters confidential. The U.S. Supreme Court rejected the privacy claim,
and declared:
Disclosures of private medical information to doctors, to hospital
personnel, to insurance companies, and to public health agencies are
often an essential part of modern medical practice even when the
disclosure may reflect unfavorably on the character of the patient.
Requiring such disclosures to representatives of the State having
responsibility for the health of the community does not automatically
amount to an impermissible invasion of privacy. (Emphasis supplied)
24

Compared to the personal medical data required for disclosure to the
New York State in Whalen, the 14 specific data required for disclosure to
the Philippine government under EO 420 are far less sensitive and far
less personal. In fact, the 14 specific data required under EO 420 are
routine data for ID systems, unlike the sensitive and potentially
embarrassing medical records of patients taking prescription drugs.
Whalen, therefore, carries persuasive force for upholding the
constitutionality of EO 420 as non-violative of the right to privacy.
Subsequent U.S. Supreme Court decisions have reiterated Whalen. In
Planned Parenthood of Central Missouri v. Danforth,16 the U.S. Supreme
Court upheld the validity of a law that required doctors performing
abortions to fill up forms, maintain records for seven years, and allow
the inspection of such records by public health officials. The U.S.
Supreme Court ruled that "recordkeeping and reporting requirements
that are reasonably directed to the preservation of maternal health and
that properly respect a patient’s confidentiality and privacy are
permissible."
Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,17
the U.S. Supreme Court upheld a law that required doctors performing
an abortion to file a report to the government that included the doctor’s
name, the woman’s age, the number of prior pregnancies and abortions
that the woman had, the medical complications from the abortion, the
weight of the fetus, and the marital status of the woman. In case of state-
funded institutions, the law made such information publicly available. In
Casey, the U.S. Supreme Court stated: "The collection of information with
respect to actual patients is a vital element of medical research, and so it
cannot be said that the requirements serve no purpose other than to
make abortion more difficult."
Compared to the disclosure requirements of personal data that the U.S.
Supreme Court have upheld in Whalen, Danforth and Casey as not
violative of the right to privacy, the disclosure requirements under EO
420 are far benign and cannot therefore constitute violation of the right
to privacy. EO 420 requires disclosure of 14 personal data that are
routine for ID purposes, data that cannot possibly embarrass or
humiliate anyone.
Petitioners have not shown how EO 420 will violate their right to
privacy. Petitioners cannot show such violation by a mere facial
Constitutional Law 1 Cases (D)
examination of EO 420 because EO 420 narrowly draws the data
collection, recording and exhibition while prescribing comprehensive
safeguards. Ople v. Torres18 is not authority to hold that EO 420 violates
the right to privacy because in that case the assailed executive issuance,
broadly drawn and devoid of safeguards, was annulled solely on the
ground that the subject matter required legislation. As then Associate
Justice, now Chief Justice Artemio V. Panganiban noted in his concurring
opinion in Ople v. Torres, "The voting is decisive only on the need for
appropriate legislation, and it is only on this ground that the petition is
granted by this Court."
EO 420 applies only to government entities that already maintain ID
systems and issue ID cards pursuant to their regular functions under
existing laws. EO 420 does not grant such government entities any
power that they do not already possess under existing laws. In contrast,
the assailed executive issuance in Ople v. Torres sought to establish a
"National Computerized Identification Reference System,"19 a national ID
system that did not exist prior to the assailed executive issuance.
Obviously, a national ID card system requires legislation because it
creates a new national data collection and card issuance system where
none existed before.
In the present case, EO 420 does not establish a national ID system but
makes the existing sectoral card systems of government entities like
GSIS, SSS, Philhealth and LTO less costly, more efficient, reliable and
user-friendly to the public. Hence, EO 420 is a proper subject of
executive issuance under the President’s constitutional power of control
over government entities in the Executive department, as well as under
the President’s constitutional duty to ensure that laws are faithfully
executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is
declared VALID.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
25
 Constitutional Law 1 Cases (D)

ARTEMIO V. PANGANIBAN
Chief Justice

(On leave)
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Asscociate Justice

CONSUELO YNARES- ANGELINA SANDOVAL-

SANTIAGO GUTIERREZ
Associate Justice Asscociate Justice

MA. ALICIA AUSTRIA-

RENATO C. CORONA
MARTINEZ
Asscociate Justice
Associate Justice

CONCHITA CARPIO
ROMEO J. CALLEJO, SR.
MORALES
Asscociate Justice
Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

26
 Constitutional Law 1 Cases (D)

Republic of the Philippines FRANCISCO I. CHAVEZ, Petitioner,

SUPREME COURT vs.
Manila EDUARDO R. ERMITA, in his capacity as Executive Secretary,
AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense, and
EN BANC GENEROSO S. SENGA, in his capacity as AFP Chief of Staff,
Respondents.
G.R. No. 169777* April 20, 2006
x-------------------------x
SENATE OF THE PHILIPPINES, represented by FRANKLIN M.
DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in G.R. No. 169667 April 20, 2006
his capacity as Senate President Pro Tempore, FRANCIS N.
PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
PIMENTEL, JR., in his capacity as Minority Leader, SENATORS vs.
RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary,
EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE Respondent.
ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM,
M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR x-------------------------x
ROXAS, Petitioners,
vs. G.R. No. 169834 April 20, 2006
EDUARDO R. ERMITA, in his capacity as Executive Secretary and
alter-ego of President Gloria Macapagal-Arroyo, and anyone acting PDP- LABAN, Petitioner,
in his stead and in behalf of the President of the Philippines, vs.
Respondents. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

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

G.R. No. 169659 April 20, 2006 G.R. No. 171246 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.
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

x-------------------------x CARPIO MORALES, J.:

G.R. No. 169660 April 20, 2006

27

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
Constitutional Law 1 Cases (D)
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
28

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
Constitutional Law 1 Cases (D)
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;
29

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.
Constitutional Law 1 Cases (D)
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
30

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.
Constitutional Law 1 Cases (D)
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.
31

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
Constitutional Law 1 Cases (D)
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
32

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
Constitutional Law 1 Cases (D)
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
33

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.
Constitutional Law 1 Cases (D)
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
34

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
Constitutional Law 1 Cases (D)
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
35

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.
Constitutional Law 1 Cases (D)
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)
36

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,
Constitutional Law 1 Cases (D)
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
37

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
Constitutional Law 1 Cases (D)
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
38

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.
Constitutional Law 1 Cases (D)
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
39

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
Constitutional Law 1 Cases (D)
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.
40

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.
Constitutional Law 1 Cases (D)
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.
41

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.
Constitutional Law 1 Cases (D)
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
42

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,
Constitutional Law 1 Cases (D)
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:
43

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:
Constitutional Law 1 Cases (D)
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
44

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
Constitutional Law 1 Cases (D)
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
45

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
Constitutional Law 1 Cases (D)
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
46
 Constitutional Law 1 Cases (D)

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

SO ORDERED. Pursuant to Article VIII, Section 13 of the Constitution, it is hereby

certified that the conclusions in the above Resolution were reached in
CONCHITA CARPIO MORALES consultation before the case was assigned to the writer of the opinion of
Associate Justice the Court.

WE CONCUR: ARTEMIO V. PANGANIBAN

Chief Justice
ARTEMIO V. PANGANIBAN
Chief Justice

(ON LEAVE)
REYNATO S. PUNO CONSUELO YNARES- SANTIAGO
Associate Justice Asscociate Justice

LEONARDO A. ANGELINA SANDOVAL-

QUISUMBING GUTIERREZ
Associate Justice Asscociate Justice

MA. ALICIA AUSTRIA-

ANTONIO T. CARPIO
MARTINEZ
Associate Justice
Asscociate Justice

RENATO C. CORONA ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

ROMEO J. CALLEJO, SR. DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-
CANCIO C. GARCIA
NAZARIO
Asscociate Justice
Associate Justice

47

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He
created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she
heard voices coming from inside the bamboo. "Oh North Wind!
North Wind! Please let us out!," the voices said. She pecked the reed
once, then twice. All of a sudden, the bamboo cracked and slit open.
Out came two human beings; one was a male and the other was a
female. Amihan named the man "Malakas" (Strong) and the
woman "Maganda" (Beautiful). (The Legend of Malakas and
Maganda)
When is a man a man and when is a woman a woman? In particular, does
the law recognize the changes made by a physician using scalpel, drugs
and counseling with regard to a person’s sex? May a person successfully
petition for a change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a
petition for the change of his first name and sex in his birth certificate in
the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP
Case No. 02-105207, impleaded the civil registrar of Manila as
respondent.
Constitutional Law 1 Cases (D)
Petitioner alleged in his petition that he was born in the City of Manila to
the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4,
1962. His name was registered as "Rommel Jacinto Dantes Silverio" in
his certificate of live birth (birth certificate). His sex was registered as
"male."
He further alleged that he is a male transsexual, that is, "anatomically
male but feels, thinks and acts as a female" and that he had always
identified himself with girls since childhood.1 Feeling trapped in a man’s
body, he consulted several doctors in the United States. He underwent
psychological examination, hormone treatment and breast
augmentation. His attempts to transform himself to a "woman"
culminated on January 27, 2001 when he underwent sex reassignment
surgery2 in Bangkok, Thailand. He was thereafter examined by Dr.
Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting that he
(petitioner) had in fact undergone the procedure.
From then on, petitioner lived as a female and was in fact engaged to be
married. He then sought to have his name in his birth certificate changed
from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published in the People’s
Journal Tonight, a newspaper of general circulation in Metro Manila, for
three consecutive weeks.3 Copies of the order were sent to the Office of
the Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr.
Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor of
petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive
but solely for the purpose of making his birth records compatible
with his present sex.
48

The sole issue here is whether or not petitioner is entitled to the
relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition
would be more in consonance with the principles of justice and
equity. With his sexual [re-assignment], petitioner, who has
always felt, thought and acted like a woman, now possesses the
physique of a female. Petitioner’s misfortune to be trapped in a
man’s body is not his own doing and should not be in any way
taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice
will be caused to anybody or the community in granting the
petition. On the contrary, granting the petition would bring the
much-awaited happiness on the part of the petitioner and her
[fiancé] and the realization of their dreams.
Finally, no evidence was presented to show any cause or ground
to deny the present petition despite due notice and publication
thereof. Even the State, through the [OSG] has not seen fit to
interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the
petition and ordering the Civil Registrar of Manila to change the
entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioner’s first name from "Rommel Jacinto" to
MELY and petitioner’s gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the
OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that
there is no law allowing the change of entries in the birth certificate by
reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in
favor of the Republic. It ruled that the trial court’s decision lacked legal
basis. There is no law allowing the change of either name or sex in the
certificate of birth on the ground of sex reassignment through surgery.
Thus, the Court of Appeals granted the Republic’s petition, set aside the
decision of the trial court and ordered the dismissal of SP Case No. 02-
Constitutional Law 1 Cases (D)
105207. Petitioner moved for reconsideration but it was denied.9 Hence,
this petition.
Petitioner essentially claims that the change of his name and sex in his
birth certificate is allowed under Articles 407 to 413 of the Civil Code,
Rules 103 and 108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the Ground of Sex
Reassignment
Petitioner invoked his sex reassignment as the ground for his petition
for change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive
but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a
female, he became entitled to the civil registry changes sought. We
disagree.
The State has an interest in the names borne by individuals and entities
for purposes of identification.11 A change of name is a privilege, not a
right.12 Petitions for change of name are controlled by statutes.13 In this
connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without
judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law).
In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error
and Change of First Name or Nickname. – No entry in a civil
register shall be changed or corrected without a judicial order,
except for clerical or typographical errors and change of first
name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in
49

accordance with the provisions of this Act and its implementing
rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and
authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The
intent and effect of the law is to exclude the change of first name from
the coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of name is first filed and
subsequently denied.15 It likewise lays down the corresponding venue,16
form17 and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature,
not judicial.
RA 9048 likewise provides the grounds for which change of first name
may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. – The
petition for change of first name or nickname may be allowed in
any of the following cases:
(1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to write
or pronounce;
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that first name or nickname in the community; or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the
sex he thought he transformed himself into through surgery. However, a
change of name does not alter one’s legal capacity or civil status.18 RA
9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioner’s first
Constitutional Law 1 Cases (D)
name for his declared purpose may only create grave complications in
the civil registry and the public interest.
Before a person can legally change his given name, he must present
proper or reasonable cause or any compelling reason justifying such
change.19 In addition, he must show that he will be prejudiced by the use
of his true and official name.20 In this case, he failed to show, or even
allege, any prejudice that he might suffer as a result of using his true and
official name.
In sum, the petition in the trial court in so far as it prayed for the change
of petitioner’s first name was not within that court’s primary jurisdiction
as the petition should have been filed with the local civil registrar
concerned, assuming it could be legally done. It was an improper remedy
because the proper remedy was administrative, that is, that provided
under RA 9048. It was also filed in the wrong venue as the proper venue
was in the Office of the Civil Registrar of Manila where his birth
certificate is kept. More importantly, it had no merit since the use of his
true and official name does not prejudice him at all. For all these reasons,
the Court of Appeals correctly dismissed petitioner’s petition in so far as
the change of his first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To
Sex On the Ground of Sex Reassignment
The determination of a person’s sex appearing in his birth certificate is a
legal issue and the court must look to the statutes.21 In this connection,
Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or
corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended
by RA 9048 in so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors.22 Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.23
50

Section 2(c) of RA 9048 defines what a "clerical or typographical error"
is:
SECTION 2. Definition of Terms. – As used in this Act, the
following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a mistake
committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil
register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like,
which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by
reference to other existing record or records: Provided,
however, That no correction must involve the change
of nationality, age, status or sex of the petitioner.
(emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of
sex is not a mere clerical or typographical error. It is a substantial
change for which the applicable procedure is Rule 108 of the Rules of
Court.
The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles 407
and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void
from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11)
loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation
of a minor; and (16) changes of name.
Constitutional Law 1 Cases (D)
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.25 However, no
reasonable interpretation of the provision can justify the conclusion that
it covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or
error from" while to change means "to replace something with
something else of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner contained no error. All
entries therein, including those corresponding to his first name and sex,
were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal
separations, annulments of marriage, declarations of nullity of
marriages, adoptions, naturalization, loss or recovery of citizenship, civil
interdiction, judicial determination of filiation and changes of name).
These acts, events and judicial decrees produce legal consequences that
touch upon the legal capacity, status and nationality of a person. Their
effects are expressly sanctioned by the laws. In contrast, sex
reassignment is not among those acts or events mentioned in Article
407. Neither is it recognized nor even mentioned by any law, expressly
or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is,
the sum total of capacities and incapacities) of a person in view of his
age, nationality and his family membership.27
The status of a person in law includes all his personal qualities
and relations, more or less permanent in nature, not
ordinarily terminable at his own will, such as his being
legitimate or illegitimate, or his being married or not. The
comprehensive term status… include such matters as the
beginning and end of legal personality, capacity to have rights in
general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce, and
sometimes even succession.28 (emphasis supplied)
51

A person’s sex is an essential factor in marriage and family relations. It is
a part of a person’s legal capacity and civil status. In this connection,
Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil
status shall be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. – The declaration
of the physician or midwife in attendance at the birth or, in
default thereof, the declaration of either parent of the newborn
child, shall be sufficient for the registration of a birth in the civil
register. Such declaration shall be exempt from documentary
stamp tax and shall be sent to the local civil registrar not later
than thirty days after the birth, by the physician or midwife in
attendance at the birth or by either parent of the newborn child.
In such declaration, the person above mentioned shall certify to
the following facts: (a) date and hour of birth; (b) sex and
nationality of infant; (c) names, citizenship and religion of
parents or, in case the father is not known, of the mother alone;
(d) civil status of parents; (e) place where the infant was born;
and (f) such other data as may be required in the regulations to
be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical record of
the facts as they existed at the time of birth.29 Thus, the sex of a person is
determined at birth, visually done by the birth attendant (the physician
or midwife) by examining the genitals of the infant. Considering that
there is no law legally recognizing sex reassignment, the determination
of a person’s sex made at the time of his or her birth, if not attended by
error,30 is immutable.31
When words are not defined in a statute they are to be given their
common and ordinary meaning in the absence of a contrary legislative
Constitutional Law 1 Cases (D)
intent. The words "sex," "male" and "female" as used in the Civil Register
Law and laws concerning the civil registry (and even all other laws)
should therefore be understood in their common and ordinary usage,
there being no legislative intent to the contrary. In this connection, sex is
defined as "the sum of peculiarities of structure and function that
distinguish a male from a female"32 or "the distinction between male and
female."33 Female is "the sex that produces ova or bears young"34 and
male is "the sex that has organs to produce spermatozoa for fertilizing
ova."35 Thus, the words "male" and "female" in everyday understanding
do not include persons who have undergone sex reassignment.
Furthermore, "words that are employed in a statute which had at the
time a well-known meaning are presumed to have been used in that
sense unless the context compels to the contrary."36 Since the statutory
language of the Civil Register Law was enacted in the early 1900s and
remains unchanged, it cannot be argued that the term "sex" as used then
is something alterable through surgery or something that allows a post-
operative male-to-female transsexual to be included in the category
"female."
For these reasons, while petitioner may have succeeded in altering his
body and appearance through the intervention of modern surgery, no
law authorizes the change of entry as to sex in the civil registry for that
reason. Thus, there is no legal basis for his petition for the correction or
change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex
Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance
with the principles of justice and equity. It believed that allowing the
petition would cause no harm, injury or prejudice to anyone. This is
wrong.
The changes sought by petitioner will have serious and wide-ranging
legal and public policy consequences. First, even the trial court itself
found that the petition was but petitioner’s first step towards his
eventual marriage to his male fiancé. However, marriage, one of the most
sacred social institutions, is a special contract of permanent union
between a man and a woman.37 One of its essential requisites is the legal
capacity of the contracting parties who must be a male and a female.38 To
grant the changes sought by petitioner will substantially reconfigure and
52
 Constitutional Law 1 Cases (D)

greatly alter the laws on marriage and family relations. It will allow the
union of a man with another man who has undergone sex reassignment
(a male-to-female post-operative transsexual). Second, there are various
laws which apply particularly to women such as the provisions of the
Labor Code on employment of women,39 certain felonies under the
Revised Penal Code40 and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of Court,41 among others. These
laws underscore the public policy in relation to women which could be
substantially affected if petitioner’s petition were to be granted.
preferences and orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at least for them,
life is indeed an ordeal. However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by the legislature, not
by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or SO ORDERED.
court shall decline to render judgment by reason of the silence, obscurity
or insufficiency of the law." However, it is not a license for courts to Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.
engage in judicial legislation. The duty of the courts is to apply or
interpret the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to

do so, to determine what guidelines should govern the recognition of the
effects of sex reassignment. The need for legislative guidelines becomes
particularly important in this case where the claims asserted are statute-
based.

To reiterate, the statutes define who may file petitions for change of first
name and for correction or change of entries in the civil registry, where
they may be filed, what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If the legislature
intends to confer on a person who has undergone sex reassignment the
privilege to change his name and sex to conform with his reassigned sex,
it has to enact legislation laying down the guidelines in turn governing
the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on

when a person may be recognized as having successfully changed his
sex. However, this Court has no authority to fashion a law on that matter,
or on anything else. The Court cannot enact a law where no law exists. It
can only apply or interpret the written word of its co-equal branch of
government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of

happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people whose
53
 Constitutional Law 1 Cases (D)

Republic of the Philippines In his Compliance dated June 17, 2004, respondent Clerk of Court stated,
SUPREME COURT among others, that he was unable to closely monitor the preparation of
Manila the monthly reports and inventory because he was requested by
respondent Judge to prepare draft decisions and resolutions to lessen
THIRD DIVISION the court’s backlog in preparation for the latter’s retirement. He also
averred that his recurring poor health due to diabetes accentuated by
A.M. No. RTJ-05-1892 January 24, 2008 hypertension contributed to the delay in the submission of the monthly
(formerly A.M. No. 04-9-494-RTC) reports and inventory.

OFFICE OF THE COURT ADMINISTRATOR, petitioners, A perusal of the Monthly Report of Cases submitted by respondent Clerk
vs. of Court for the period October 2003 to November 2003, however,
JUDGE ERNESTO A. REYES and Acting Clerk of Court RICARDO R. showed that the actual number of cases submitted for decision was not
ADOLFO, both of the Regional Trial Court, Branch 111, Pasay City, faithfully reflected in the report, to wit:
respondent.
Month Number of Cases Remarks
RESOLUTION
October 2003 Two (2) cases Already beyond the
REYES, R.T., J.: period
November Two (2) cases Already beyond the
AFTER his application for optional retirement was approved by the 2003 period
Court in a Resolution dated August 2, 2004, respondent Judge Ernesto A.
Reyes of the Regional Trial Court (RTC), Branch 111, Pasay City, applied December One (1) case Already beyond the
with the Office of the Court Administrator (OCA) for a Certificate of 2003 period
Clearance.
January 2004 One (1) case Already beyond the
period
A verification from the Statistical Reports Division, Court Management
Office, OCA, however, showed that, per Monthly Report of Cases as of February 2004 Five (5) cases Four (4) cases beyond
April 2004 and Docket Inventory of Cases as of February 2004, there One (1) case within
were thirty-six (36) cases submitted for decision before respondent
Judge, twenty-three (23) of which were beyond the reglementary period March 2004 Thirty-six (36) Twenty-three (23) cases
to decide. The verification further revealed that RTC, Branch 111, Pasay cases Beyond
City, was not submitting regularly its Monthly Report of Cases and
Docket Inventory of Cases. It was also found out that, on March 18, 2004, respondent Clerk of Court
issued a certification that "no pending case submitted for decision has
On May 25, 2004, the OCA sent a Memorandum to respondent Ricardo R. remained unresolved by the Hon. Ernesto A. Reyes."
Adolfo, Acting Clerk of Court, RTC, Branch 111, Pasay City, directing him
to (1) explain the delay in the submission of the Monthly Report of Cases In a letter dated September 7, 2004, respondent Judge admitted that he
from October 2004 to April 2004 and the Docket Inventory of Cases for had left behind undecided cases which were already submitted for
the 2nd Semester of 2003, and (2) submit the same to the OCA, through decision. But, according to him, the undecided cases were an off-shoot of
the Court Management Office, within ten (10) days from notice. his candidacy for the mayoral position in Cardona, Rizal. He also

54

asserted that the cases were inadvertently overlooked due to the
awesome caseload he had, not to mention the criminal cases (with
detention prisoners) assigned to him. He further requested that, if
feasible under the circumstances, he be allowed to resolve the undecided
cases within an appropriate period of time.
On September 14, 2004, the OCA, in its report, found respondent Judge
liable for undue delay in rendering judgment on twenty-three (23) cases
prior to his optional retirement. It also recommended that:
(a) the letter dated September 7, 2004 of Judge Ernesto A. Reyes
(ret.) be NOTED;
(b) this matter be docketed as a regular Administrative Matter
against Judge Ernesto A. Reyes for failure to decide the twenty-
three (23) cases submitted for decision within the reglementary
period;
(c) Judge Ernesto A. Reyes (ret.) be FINED in the amount of
twenty thousand pesos (P20,000.00); and
(d) Officer-In-Charge, Mr. Ricardo R. Adolfo, RTC, Branch
111, Pasay City, be DIRECTED to EXPLAIN why no
administrative charge shall be filed against him for not
faithfully reflecting in the Monthly Report of Cases for the
last quarter of the year 2003 the list of cases submitted for
decision before Judge Ernesto A. Reyes and for having issued
a Certification dated 18 March 2004 to the effect that no
pending case submitted for decision has remained
unresolved by Judge Reyes.
In a Resolution dated December 13, 2004, the Court resolved to re-
docket the case as a regular administrative matter against respondent
Judge for failure to decide the twenty-three (23) cases within the
reglementary period, and to withhold the amount of P20,000.00 from his
retirement benefits to answer for any penalty that may be imposed
against him. In the same resolution, the Court also directed respondent
Clerk of Court to explain why no administrative charge should be filed
against him for not faithfully reflecting in the Monthly Report of Cases
for the last quarter of the year 2003 the list of cases submitted for
decision before respondent Judge, and for having issued a Certification
Constitutional Law 1 Cases (D)
dated March 18, 2004 to the effect that no pending case submitted for
decision had remained unresolved by respondent Judge.
In his Comment dated January 4, 2005, respondent Clerk of Court stated
that he was instructed by respondent Judge not to reflect their overdue
cases for decision in the monthly report. According to him, since
respondent Judge was his boss, he was torn between two loyalties - "the
man and my current duty as Acting Clerk of Court."
Anent the certification he issued, respondent Clerk of Court claimed that
respondent Judge had personally asked him to sign the already prepared
Certification dated March 18, 2004, so that the processing of his
retirement papers would move. He further stated that he acquiesced
only to avoid "any rupture of that friendship and respect we have had
especially in the parting hours of our working relationships."
On February 16, 2005, the Court issued a resolution referring to the OCA
the comment of respondent Clerk of Court.
In its Memorandum dated June 17, 2005, the OCA recommended that the
administrative complaint be re-docketed as a regular administrative
matter against respondent Clerk of Court and that a fine of P20,000.00
be imposed on him for dishonesty and gross misconduct.
On August 3, 2005, the Court issued a resolution resolving to (a) include
respondent Clerk of Court as one of the respondents in Adm. Matter No.
RTJ-05-1892, and (b) require respondents to manifest within ten (10)
days from notice whether they were willing to submit the case for
resolution on the basis of the pleadings filed.
Both respondents, however, failed to comply with the above resolution.
In a Resolution dated March 15, 2006, the Court resolved to (a) resend a
copy of the August 3, 2005 Resolution to respondent Judge at his address
at Barangay Patunhay, Cardona, Rizal, and (b) require respondent Clerk
of Court to show cause within ten (10) days from notice why he should
not be disciplinarily dealt with or held in contempt for his failure to
comply with the August 3, 2005 Resolution.
55

On May 10, 2006, respondent Clerk of Court submitted his comment,
apologizing for his failure to comply on time and praying that the
administrative case against him be dismissed.
On June 28, 2006, the Court issued a Resolution resolving to (a) note the
comment of respondent Clerk of Court, (b) admonish respondent Clerk
of Court, his explanation being not fully satisfactory, and (c) await the
manifestation of respondent Judge.
Respondent Judge failed once more to manifest if he was willing to
submit the case for resolution based on the pleadings filed. Accordingly,
on January 29, 2007, the Court issued a resolution resolving to require
Judge Reyes to (a) show cause why he should not be disciplinarily dealt
with or held in contempt for his failure to manifest if he is willing to
submit the case for resolution based on the pleadings, and (b) comply
with the August 3, 2005 Resolution.
On June 14, 2007, respondent Clerk of Court filed a manifestation
stating, among others, that the unresolved cases of which respondent
Judge was liable "was virtually resolved by Judge P. Macaraeg (ret.),
Judge H.A. Villamor (ret.) and Judge Wilhemia B. Jorge-Wagan (currently
presiding) for only two (2) civil cases are now pending." He also prayed
that the case be resolved and that, in the interest of substantial justice,
he be dropped from the case.
On July 30, 2007, the Court issued a resolution resolving to note the
manifestation filed by respondent Clerk of Court and denied the prayer
that he be dropped as respondent. The Court further resolved to deem
respondent Judge to have submitted the case for resolution based on the
pleadings filed.
Records clearly show that respondent Judge is administratively liable for
undue delay in rendering judgment on the subject twenty-three (23)
cases prior to his optional retirement. As he himself admitted in his
letter dated September 7, 2004, he had left behind undecided cases
which were already submitted for decision.
No less than the Constitution mandates that all cases or matters must be
decided or resolved within twenty-four (24) months from date of
submission to the Supreme Court, and, unless reduced by the Supreme
Court, twelve (12) months for all lower collegiate courts, and three
Constitutional Law 1 Cases (D)
months for all other lower courts.1 In implementing this constitutional
mandate, Section 5, Canon 6 of the New Code of Judicial Conduct exhorts
in the section on "Competence and Diligence" that judges shall perform
all judicial duties, including the delivery of reserved decisions,
efficiently, fairly and with reasonable promptness.
Decision-making, among others, is the primordial and most important
duty of every member of the bench. Judges have the sworn duty to
administer justice without undue delay, for justice delayed is justice
denied.2 Judges should therefore be prompt in the performance of their
judicial duties for undue delays erode the people’s faith and confidence
in our justice system and bring it into disrepute.3
In Petallar v. Pullos,4 this Court held that:
The honor and integrity of the judiciary is measured not only by
the fairness and correctness of the decisions rendered, but also
by the efficiency with which disputes are resolved. Thus, judges
must perform their official duties with utmost diligence if public
confidence in the judiciary is to be preserved. There is no excuse
for mediocrity in the performance of judicial functions. The
position of judge exacts nothing less than faithful observance of
the law and the Constitution in the discharge of official duties.
The Court usually allows reasonable extensions of time to decide cases
in view of the heavy caseload of the trial courts. If a judge is unable to
comply with the 90-day reglementary period for deciding cases or
matters, he can, for good reasons, ask for an extension and such request
is generally granted.5 But respondent Judge did not ask for an extension
of time to decide and resolve the twenty-three (23) cases. Thus, having
failed to decide the same within the required period, without any order
of extension granted by this Court, respondent Judge is liable for undue
delay in rendering judgment - which merits administrative sanction.6
Section 9 of Rule 140 of the Rules of Court reads as follows:
SEC. 9. Less Serious Charges. - Less serious charges include:
Undue delay in rendering a decision or order, or in
transmitting the records of a case.
56

Section 11(B) of the same Rule provides the penalty as follows:
B. If the respondent is guilty of a less serious charge, any of the
following sanctions shall be imposed:
1. Suspension from office without salary and other benefits for
not less than one (1) nor more than three (3) months; or
2. A fine of more than P10,000.00 but not exceeding
P20,000.00.
Respondent Judge has retired from the service. His retirement, however,
will not absolve him from liability or prevent this Court from imposing a
sanction against him - a fine in the amount of P20,000.00.
With respect to respondent Clerk of Court, his acts of not faithfully
reflecting in the Monthly Report of Cases for the last quarter of 2003 the
list of cases submitted for decision before respondent Judge and issuing
a false certification to the effect that no pending case submitted for
decision had remained unresolved by respondent Judge, obviously fell
short of the standard required of him as clerk of court. His acts
constitute misconduct. As an officer of the court, respondent Clerk of
Court should have conducted himself strictly in accordance with the
highest standards of ethics.
Clerks of court are the chief administrative officers of their respective
courts.7 They must show competence, honesty and probity since they are
charged with safeguarding the integrity of the court and its
proceedings.8
In Re: Memorandum dated 27 Sept. 1999 of Ma. Corazon M. Molo, OIC,
Office of the Administrative Services, Office of the Court Administrator,9
We held that:
No position demands greater moral righteousness and
uprightness from the occupant than the judicial office. Those
connected with the dispensation of justice bear a heavy burden
of responsibility. Clerks of court, in particular, must be
individuals of competence, honesty and probity, charged as they
are with safeguarding the integrity of the court and its
proceedings. This Court has consistently held that persons
Constitutional Law 1 Cases (D)
involved in the administration of justice ought to live up to the
strictest standards of honesty and integrity in the public service.
The conduct required of court personnel, from the presiding
judge to the lowliest clerk, must always be beyond reproach.
Respondent Clerk of Court, as aptly observed by the OCA, cannot now
escape administrative liability by blaming respondent Judge and
stressing the latter’s moral ascendancy over him. He acceded to
respondent Judge’s anomalous request with the thought that he could
remedy the situation and that the same would not be found out.
We find it reasonable and appropriate to impose on respondent Clerk of
Court a fine of P10,000.00, with a stern warning that a commission of the
same or a similar offense will be dealt with more severely in the future.
WHEREFORE, respondent Judge Ernesto A. Reyes, former judge of the
RTC of Pasay City, Branch 111, is found GUILTY of undue delay in
rendering judgment and is hereby FINED in the amount of P20,000.00 to
be deducted from his retirement pay and benefits. Respondent Ricardo
R. Adolfo, Acting Clerk of Court, also of the RTC of Pasay City, Branch
111, is found GUILTY of misconduct. He is ordered to pay a FINE in the
amount of P10,000.00, with a STERN WARNING that a repetition of the
same or similar infraction shall be dealt with more severely.
SO ORDERED.
Ynares-Santiago, Chairperson, Austria-Martinez, Corona*, Nachura, JJ.,
concur.
57

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. SCC-13-18-J July 1, 2015
(Formerly A.M. OCA IPI No. 11-36-SCC)
BAGUAN M. MAMISCAL, Complainant,
vs.
CLERK OF COURT MACALINOG S. ABDULLAH, SHARI'A CIRCUIT
COURT, MARAWI CITY, Respondent.
DECISION
MENDOZA, J.:
This resolves the complaint1 of Baguan M. Mamiscal (Mamiscal) against
respondent Macalinog S. Abdullah (Abdullah), Clerk of Court, Shari'a
Circuit Court, Marawi City, for partiality, violation of due process,
dishonesty, and conduct unbecoming of a court employee. Originally, the
complaint also charged Judge Aboali J. Cali (Judge Cali), Presiding Judge,
Shari'a Circuit Court, Marawi City, for his participation in the subject
controversy. On January 9, 2013, the Court resolved to dismiss the
charges against Judge Cali for lack of merit.2
The Facts
In his complaint, Mamiscal averred that on September 26, 2010, he and
his wife, Adelaidah Lomondot (Adelaidah) had a heated argument. In a
fit of anger, Mamiscal decided to divorce his wife by repudiating her
(talaq).3 The repudiation was embodied in an agreement4 (kapasadan)
signed by Mamiscal and Adelaidah.
The next day, Adelaidah left their conjugal dwelling in Iligan City and
went back to her family’s home in Marinaut, Marawi City. A few days
later, during the obligatory period of waiting (‘iddah),5 Mamiscal had a
change of heart and decided to make peace with his wife. For the
purpose, he sent their common relatives to see Adelaidah and make
peace with her on his behalf.6
Constitutional Law 1 Cases (D)
Almost five (5) months later, however, on February 23, 2011, Adelaidah
filed7 the Certificate of Divorce (COD),8 dated September 26, 2010, with
the office of Abdullah for registration. Although unsigned, the certificate,
purportedly executed by Mamiscal, certified that he had pronounced
talaq in the presence of two (2) witnesses and in accordance with
Islamic Law for the purpose of effecting divorce from Adelaidah. A
notation on the certificate stated that it was being filed together with the
kapasadan.
On the same day, Abdullah, in the exercise of his duty as both Clerk of
Court and Circuit Civil Registrar,9 issued the Invitation10 notifying the
couple and their representatives to appear before the Shari’a Circuit
Court on February 28, 2011, in order to constitute the Agama
Arbitration Council (AAC)that would explore the possibility of
reconciling the spouses.11
On March 24, 2011, Abdullah issued the Certificate of Registration of
Divorce12 (CRD)finalizing the divorce between Mamiscal and Adelaidah.
Mamiscal sought the revocation of the CRD, questioning the validity of
the kapasadan on which the CRD was based. In his motion, Mamiscal
contended that the kapasadan was invalid considering that he did not
prepare the same. Moreover, there wereno witnesses to its execution. He
claimed that he only signed the kapasadan because of Adelaidah’s
threats.
Mamiscal also questioned the validity of the COD, denying that he had
executed and filed the same before the office of Abdullah. Insisting that
he never really intended to divorce his wife, Mamiscal pointed out the
fact that on December 13, 2010, before the expiration of the ‘iddah, he
wrote his wife13 to inform her that he was revoking the repudiation he
made on September 26, 2010 and the kapasadan they entered into on
the same day because he did it on the "spur of the moment."14
For Mamiscal, the CRD should be declared invalid considering that: a) he
was deprived of due process because the AAC, before which he and his
children were supposed to express their sentiments regarding the
divorce, was yet to be constituted; b) three days before the issuance of
the CRD, Professor Mustafa Lomala M. Dimaro, appeared before Judge
Cali to discuss the possibility of reconciliation between the parties; and
c) their children, Adelah Rima and Naim Mamiscal, prayed that the trial
58

court advise their mother not to proceed with the divorce.15 In addition
to the revocation of the CRD, Mamiscal also prayed that Abdullah order
the reconvening of the AAC and, thereafter, grant the restoration of his
marital rights with Adelaidah.
On April 20, 2011, Abdullah denied Mamiscal’s motion.16 In sustaining
the divorce between Mamiscal and Abdullah, Abdullah opined that it was
simply his ministerial duty to receive the COD and the attached
kapasadan filed by Adelaidah. Abdullah also noted that when the AAC
was convened during the February 28, 2010 hearing, only Mamiscal and
his representatives appeared. Considering the fact that Adelaidah
manifested her opposition in writing to any reconciliation with her
husband and the fact that the 90-day period of ‘iddah had already lapsed,
Abdullah ruled that any move to reconstitute the AAC would have been
futile because the divorce between Mamiscal and his wife had already
become final and irrevocable.
Contending that the issuance of the CRD was tainted with irregularity,
Mamiscal comes to this Court, through the subject complaint, charging
Abdullah with partiality, violation of due process, dishonesty, and
conduct unbecoming of a court employee.
The Charge
In his complaint, Mamiscal averred that Abdullah should not have
entertained or acted upon the COD and the kapasadan filed by
Adelaidah. He contended that under the Code of Muslim Personal Laws, a
divorce under talaq could only be filed and registered by the male
spouse, considering that female Muslims could do so only if the divorce
was through tafwid.17 Moreover, Mamiscal alleged that Abdullah
"fabricated and twisted the facts"18 when he declared that only
Mamiscal and his representative appeared when the AAC was convened.
Mamiscal insisted that Adelaidah and her relatives were also present
during the hearing of February 28, 2010, and that the AAC was never
convened because the parties agreed to reset the proceedings so that
they could explore the possibility of reconciling the differences between
them. Notwithstanding the ongoing mediation proceedings, Abdullah
proceeded to act on the COD and finalized the divorce by issuing the
CRD.
Constitutional Law 1 Cases (D)
Finally, it was averred that Abdullah violated the Shari’a rules of
procedure when he initially refused to receive Mamiscal’s motion for
reconsideration when it was first filed. Mamiscal also argued that
Abdullah should not have considered the opposition of Adelaidah when
he denied his attempt to seek reconsideration because he was never
furnished a copy of Adelaidah’s opposition.
Abdullah’s Comment
In his comment,19 Abdullah countered that although he had the
authority to process the registration of the divorce as court registrar, he
could not be held responsible for the contents of the COD and the
kapasadan because his functions were only ministerial. Nevertheless,
Abdullah asserted that the divorce between Mamiscal and Adelaidah had
already attained finality, not only because of the lapse of the required
‘iddah, but also because the kapasadan and Adelaidah’s opposition both
proved that there could be no reconciliation between the spouses.
Abdullah also discounted any impropriety for processing the unsigned
COD, arguing that since it was accompanied by the kasapadan which
bore the signature of Mamiscal and his declaration that he was divorcing
his wife by talaq– there was nothing wrong with Adelaidah filing it with
his office. Moreover, with the lapse of the ‘iddah, Abdullah argued that
the COD had remained to be nothing more than a formality for the
purpose of registering the divorce with the National Statistics Office
(NSO)and its issuance using the NSO security paper.
As to the allegations pertaining to the February 28, 2010 hearing,
Abdullah stated that he only conducted the same because it was
required under the Muslim Personal Code. Abdullah explained that he
did not convene the ACC anymore not only because Adelaidah or her
representatives were not present, but also because the divorcing
couple’s own children wrote to him opposing the convening of the
council.
As to Mamiscal’s contention that he already revoked his repudiation of
his wife, Abdullah pointed out that his office was not informed of any
revocation of the divorce. According to Abdullah, if Mamiscal had indeed
revoked his repudiation, he should have complied with the provisions of
Rule II (1)(2) of NSO Administrative Order No. 1, series of 2001, which
required the husband to file five (5) copies of his sworn statement
59

attesting to the fact of revocation, together with the written consent of
his wife.
In its report,20 the Office of the Court Administrator (OCA)found
Abdullah guilty of gross ignorance of the law and recommended that he
be fined in the amount of 10,000.00 with a stern warning that a
repetition of the same offense shall be dealt with severely.
On January 30, 2014, Abdullah filed a motion,21 praying for the early
resolution of the complaint filed against him. Reiterating his plea for the
dismissal of the said complaint, Abdullah claimed that he was due for
compulsory retirement on June 5, 2014.
The Court’s Ruling
At the outset, it must first be pointed out that while it may seem to be a
related issue, the validity of the divorce between Mamiscal and
Adelaidah is not in issue here. Whether or not Mamiscal had validly
effected a divorce from his wife is a matter that must first be addressed
by the Shari’a Circuit Court which, under the Code of Muslim Personal
Laws of the Philippines (Muslim Code),22 enjoys exclusive original
jurisdiction to resolve disputes relating to divorce.
Thus, Article 155 of the Muslim Code provides:
Article 155. Jurisdiction. The Shari'a Circuit Courts shall have exclusive
original jurisdiction over;
(1) All cases involving offenses defined and punished under this
Code.
(2) All civil actions and proceedings between parties who are
Muslims or have been married in accordance with Article 13
involving disputes relating to:
(a) Marriage;
(b) Divorce recognized under this Code;
(c) Betrothal or breach of contract to marry;
Constitutional Law 1 Cases (D)
(d) Customary dower (mahr);
(e) Disposition and distribution of property upon
divorce;
(f) Maintenance and support, and consolatory gifts,
(mut'a); and
(g) Restitution of marital rights.
(3) All cases involving disputes relative to communal properties.
[Emphases Supplied]
Consequently, in resolving the subject complaint, the Court shall confine
itself to the sole issue of whether or not Abdullah should be held
administratively liable for his actions in connection with the registration
of the divorce between Mamiscal and Adelaidah. A priori to the
resolution of the foregoing issue is the question of whether this Court
has jurisdiction to impose administrative sanction against Abdullah for
his acts.
The Court rules in the negative.
The civil registrar is the person charged by law for the recording of vital
events and other documents affecting the civil status of persons. The
Civil Registry Law embraces all acts of civil life affecting the status of
persons and is applicable to all persons residing in the Philippines.23
To ensure the proper registration of all facets of the civil life of Muslim
Filipinos throughout the country, Article 81 of the Muslim Code
provides:
Article 81. District Registrar. The Clerk of Court of the Shari' a District
Court shall, in addition to his regular functions, act as District Registrar
of Muslim Marriages, Divorces, Revocations of Divorces, and
Conversions within the territorial jurisdiction of said court. The Clerk of
Court of the Shari'a Circuit Court shall act as Circuit Registrar of Muslim
Marriages, Divorces, Revocations of Divorces, and Conversions within
his jurisdiction.
60

[Emphasis Supplied]
In view of the above-quoted provision, it becomes apparent that the
Clerk of Court of the Shari'a Circuit Court enjoys the privilege of wearing
two hats: first, as Clerk of Court of the Shari'a Circuit Court, and second,
as Circuit Registrar within his territorial jurisdiction. Although the
Constitution vests the Court with the power of administrative
supervision over all courts and its personnel,24 this power must be
taken with due regard to other prevailing laws.
Thus, Article 185 of the Muslim Code provides:
Article 185. Neglect of duty by registrars. Any district registrar or circuit
registrar who fails to perform properly his duties in accordance with this
Code shall be penalized in accordance with Section 18 of Act 3753.
Commonwealth Act (C.A.) No. 375325 is the primary law that governs
the registry of civil status of persons. To ensure that civil registrars
perform their duties under the law, Section 18 of C.A. No. 3753 provides:
Section 18. Neglect of duty with reference to the provisions of this Act. –
Any local registrar who fails to properly perform his duties in
accordance with the provisions of this Act and of the regulations issued
hereunder, shall be punished for the first offense, by an administrative
fine in a sum equal to his salary for not less than fifteen days nor more
than three months, and for a second or repeated offense, by removal
from the service.
[Emphasis Supplied]
The same Act provides:
Section 2. Civil Registrar-General his duties and powers. – The director
of the National Library shall be Civil Registrar-General and shall enforce
the provisions of this Act. The Director of the National Library, in his
capacity as Civil Registrar-General, is hereby authorized to prepare and
issue, with the approval of the Secretary of Justice, regulations for
carrying out the purposes of this Act, and to prepare and order printed
the necessary forms for its proper compliance. In the exercise of his
functions as Civil Registrar-General, the Director of the National Library
shall have the power to give orders and instructions to the local Civil
Constitutional Law 1 Cases (D)
registrars with reference to the performance of their duties as such. It
shall be the duty of the Director of the National Library to report any
violation of the provisions of this Act and all irregularities, negligence or
incompetency on the part of the officers designated as local civil
registrars to the (Chief of the Executive Bureau or the Director of the
Non-Christian Tribes) Secretary of the Interior, as the case may be, who
shall take the proper disciplinary action against the offenders.
[Emphasis and Underscoring Supplied]
Prescinding from the foregoing, it becomes apparent that this Court does
not have jurisdiction to impose the proper disciplinary action against
civil registrars. While he is undoubtedly a member of the Judiciary as
Clerk of Court of the Shari'a Circuit Court, a review of the subject
complaint reveals that Mamiscal seeks to hold Abdullah liable for
registering the divorce and issuing the CRD pursuant to his duties as
Circuit Registrar of Muslim divorces. It has been said that the test of
jurisdiction is the nature of the offense and not the personality of the
offender.26 The fact that the complaint charges Abdullah for "conduct
unbecoming of a court employee" is of no moment. Well-settled is the
rule that what controls is not the designation of the offense but the
actual facts recited in the complaint. Verily, unless jurisdiction has been
conferred by some legislative act, no court or tribunal can act on a
matter submitted to it.27
It bears to stress at this point that this Court can resolve the foregoing
jurisdictional issue even if the matter of jurisdiction was never raised by
any of the parties. Jurisprudence is replete with rulings that jurisdiction,
or the power and authority of a court to hear, try and decide a case must
first be acquired by the court or an adjudicative body over the subject
matter and the parties in order to have authority to dispose of the case
on the merits.28 Elementary is the distinction between jurisdiction over
the subject matter and jurisdiction over the person. Jurisdiction over the
subject matter is conferred by the Constitution or by law. In contrast,
jurisdiction over the person is acquired by the court by virtue of the
party's voluntary submission to the authority of the court or through the
exercise of its coercive processes. Jurisdiction over the person is
waivable unlike jurisdiction over the subject matter which is neither
subject to agreement nor conferred by consent of the parties.29
61

Having settled the foregoing issue, the following question now confronts
the Court: Who, among the various agencies and instrumentalities of the
government, is empowered with administrative supervisory powers in
order to impose disciplinary sanctions against erring civil registrars?
On this score, a recap of the legislative history surrounding our system
of civil registration is in order.
The system of civil registration was first established in the Philippines
by the revolutionary government on June18, 1898 or barely six days
after the declaration of the country’s independence from Spain on June
12, 1898. Originally, the system was decentralized in the sense that civil
registration was purely a local government responsibility. It was only on
February 27, 1931, when C.A. No. 375330 took effect and centralized the
system of civil registration in the country. Under this law, the director of
the National Library was made responsible as the Civil Registrar-General
to exercise technical supervision and ensure the proper establishment
and maintenance of our civil registry system.
Then, following C.A. No. 591,31 the duties exercised by the director of
National Library with regard to matters concerning the system of civil
registration were transferred to the Bureau of Census and Statistics. This
bureau subsequently became the NSO,32 whose Administrator
concurrently served as the Civil Registrar-General.33 At present, the
National Statistician is empowered by Republic Act (R.A.) No. 10625, as
Civil Registrar-General to exercise technical supervision of civil
registrars.34
Due to the need to address the cultural peculiarities practiced by our
Muslim brethren, however, Congress saw the need to designate the Clerk
of Court of the Shari'a Circuit Court to act as the Circuit Registrar of
Muslim marriages, divorces, revocations of divorces, and conversions to
Islam within his jurisdiction. As earlier cited, Article 181 of the Muslim
Code provides that: The Clerk of Court of the Shari'a Circuit Court shall
act as Circuit Registrar of Muslim Marriages, Divorces, Revocations of
Divorces, and Conversions within his jurisdiction.
In order to ensure that Circuit Registrars remain faithful to their duties,
Article 82 of the Muslim Code tasks the Clerks of Court of the Shari'a
District Court to act as District Registrars and exercise technical
supervision over Circuit Registrars by requiring them to keep a proper
Constitutional Law 1 Cases (D)
recording of all matters pertaining to the personal lives of Muslims.
Thus:
Article 82. Duties of District Registrar. Every District Registrar shall
exercise supervision over Circuit Registrars in every Shari'a District. He
shall, in addition to an entry book, keep and bind copies of certificates of
Marriage, Divorce, Revocation of Divorce, and Conversion sent to him by
the Circuit Registrars in separate general registers. He shall send copies
in accordance with Act. No. 3753, as amended, to the office of the Civil
Registrar-General.
All these notwithstanding, the power of administrative supervision over
civil registrars remains with the National Government.1âwphi1 As
Section 2 of CA No. 3753 provides:
Section 2. Civil Registrar-General his duties and powers. – The director
of the National Library shall be Civil Registrar-General and shall enforce
the provisions of this Act. The Director of the National Library, in his
capacity as Civil Registrar-General, is hereby authorized to prepare and
issue, with the approval of the Secretary of Justice, regulations for
carrying out the purposes of this Act, and to prepare and order printed
the necessary forms for its proper compliance. In the exercise of his
functions as Civil Registrar-General, the Director of the National Library
shall have the power to give orders and instructions to the local Civil
registrars with reference to the performance of their duties as such. It
shall be the duty of the Director of the National Library to report any
violation of the provisions of this Act and all irregularities, negligence or
incompetency on the part of the officers designated as local civil
registrars to the (Chief of the Executive Bureau or the Director of the
Non-Christian Tribes) Secretary of the Interior, as the case may be, who
shall take the proper disciplinary action against the offenders.
[Emphasis Supplied]
It was only with the advent of the Local Government Code that the
power of administrative supervision over civil registrars was devolved
to the municipal and city mayors of the respective local government
units. Under the "faithful execution clause" embodied in Section
455(b)(1)(x)35 and Section 444(b)(1)(x)36 of the Local Government
Code, in relation to Section 47937 under Article IX, Title V38 of the same
Code, the municipal and city mayors of the respective local government
62
 Constitutional Law 1 Cases (D)

units, in addition to their power to appoint city or municipal civil
registrars are also given ample authority to exercise administrative
supervision over civil registrars. Thus, when Administrative Order No. 1,
Series of 1993 of the Office of the Civil Registrar-General (OCRG)was
passed to implement CA No. 3753 it was declared:
Rule 1. Duties and Powers of the Civil Registrar-General. - The Civil
Registrar-General shall have the following duties and powers:
a) To enforce the provisions of Act No. 3753;
b) To prepare and issue regulations for carrying out the
purposes of Act No. 3753 and other laws relative to civil
registration, and to prepare and order printed the necessary
forms for its proper compliance;
c) To give orders and instructions to the city/municipal civil
registrars with reference to the performance of their duties as
such; and
Service, the CSC is granted original concurrent jurisdiction over
administrative cases. Thus:
Section 9. Jurisdiction of Heads of Agencies. - The Secretaries and heads
of agencies, and other instrumentalities, provinces, cities and
municipalities shall have original concurrent jurisdiction with the
Commission over their respective officers and employees. x x x
Consequently, it behooves the Court to also forward the subject
complaint to the Office of the Mayor, Marawi City and to the CSC for
appropriate action.
WHEREFORE, the administrative matter against Macalinog S. Abdullah,
Clerk of Court II, Shari' a Circuit Court, Marawi City, for partiality,
violation of due process, dishonesty, and conduct unbecoming a court
employee is DISMISSED for lack of jurisdiction, without prejudice. The
complaint of Baguan M. Mamiscal against Macalinog S. Abdullah is
hereby REFERRED to the Office of the Mayor, Marawi City and the Civil
Service Commission for appropriate action.

d) To report any violation of the provisions of Act No. 3753 and SO ORDERED.
other laws on civil registration, and all irregularities, negligence
or incompetency of city/municipal civil registrar to the JOSE CATRAL MENDOZA
concerned mayor who shall take the proper disciplinary action Associate Justice
against the offender.
WE CONCUR:
This authority of the Mayor to exercise administrative jurisdiction over
Circuit Registrars was also recognized generally, under Section 47(2) of ANTONIO T. CARPIO
the Administrative Code of 1987,39 and specifically, under Rule 11 of Associate Justice
Administrative Order No. 2, Series of 199340 of the OCRG, and the more Chairperson
recent Administrative Order No. 5, Series of 200541 of the same office,
which applies specially to the registration of acts and events concerning LUCAS P. BERSAMIN* MARIANO C. DEL CASTILLO
the civil status of Muslim Filipinos. Associate Justice Associate Justice

At this juncture, it should be remembered that the authority of the

MARVIC M.V.F. LEONEN
Mayor to exercise administrative supervision over C/MCRs is not
Associate Justice
exclusive. The Civil Service Commission (CSC), as the central personnel
agency of the government, has the power to appoint and discipline its
officials and employees and to hear and decide administrative cases
instituted by or brought before it directly or on appeal.42 Under Section
9 of the Revised Uniform Rules on Administrative Cases in the Civil
63

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17144 October 28, 1960
SERGIO OSMEÑA, JR., petitioner,
vs.
SALIPADA K. PENDATUN, LEON Z. GUINTO, JR., VICENTE L.
PERALTA, FAUSTINO TOBIA, LORENZO G. TEVES, JOPSE J. ROY,
FAUSTINO DUGENIO, ANTONIO Y. DE PIO, BENJAMIN T. LIGOT,
PEDRO G. TRONO, FELIPE ABRIGO, FELIPE S. ABELEDA, TECLA SAN
ANDRES ZIGA, ANGEL B. FERNADEZ, and EUGENIO S. BALTAO, in
their capacity as members of the Special Committee created by
House Resolution No. 59, respondents.
Antonio Y. de Pio in his own behalf.
F. S. Abeleda, A. b. Fernandez. E. S. Baltao and Tecla San Andres Ziga in
their own behalf.
C. T. Villareal and R. D. Bagatsing as amici curiae.
BENGZON, J.:
On July 14, 1960, Congressman Sergio Osmeña, Jr., submitted to this
Court a verified petition for "declaratory relief, certiorari and
prohibition with preliminary injunction" against Congressman Salapida
K. Pendatun and fourteen other congressmen in their capacity as
members of the Special Committee created by House Resolution No. 59.
He asked for annulment of such Resolution on the ground of
infringenment of his parliamentary immunity; he also asked, principally,
that said members of the special committee be enjoined from proceeding
in accordance with it, particularly the portion authorizing them to
require him to substantiate his charges against the President with the
admonition that if he failed to do so, he must show cause why the House
should not punish him.
The petition attached a copy of House Resolution No. 59, the pertinent
portions of which reads as follows:
Constitutional Law 1 Cases (D)
WHEREAS, on the 23rd day of June, 1960 , the Honorable Sergio
Osmeña, Jr., Member of the House of Representatives from the
Second District of the province of Cebu, took the floor of this
chamber on the one hour privilege to deliver a speech, entitled 'A
Message to Garcia;
WHEREAS, in the course of said speech, the Congressman from
the Second District of Cebu stated the following:.
xxx xxx xxx
The people, Mr. President, have been hearing of ugly reports that
under your unpopular administration the free things they used
to get from the government are now for sale at premium prices.
They say that even pardons are for sale, and that regardless of
the gravity or seriousness of a criminal case, the culprit can
always be bailed out forever from jail as long as he can come
across with a handsome dole. I am afraid, such an anomalous
situation would reflect badly on the kind of justice that your
administration is dispensing. . . . .
WHEREAS, the charges of the gentleman from the Second District
of Cebu, if made maliciously or recklessly and without basis in
truth and in fact, would constitute a serious assault upon the
dignity and prestige of the Office of 37 3 the President, which is
the one visible symbol of the sovereignty of the Filipino people,
and would expose said office to contempt and disrepute; . . . .
Resolved by the House of Representative, that a special committee
of fifteen Members to be appointed by the Speaker be, and the
same hereby is, created to investigate the truth of the charges
against the President of the Philippines made by Honorable
Sergio Osmeña, Jr., in his privilege speech of June 223, 1960, and
for such purpose it is authorized to summon Honorable Sergio
Osmeña, jr., to appear before it to substantiate his charges, as
well as to issue subpoena and/or subpoena duces tecum to
require the attendance of witnesses and/or the production of
pertinent papers before it, and if Honorable Sergio Osmeña, Jr.,
fails to do so to require him to show cause why he should not be
punished by the House. The special committee shall submit to
the House a report of its findings and recommendations before
64

the adjournment of the present special session of the Congress of
the Philippines.
In support of his request, Congressman Osmeña alleged; first, the
Resolution violated his constitutional absolute parliamentary immunity
for speeches delivered in the House; second, his words constituted no
actionable conduct; and third, after his allegedly objectionable speech
and words, the House took up other business, and Rule XVII, sec. 7 of the
Rules of House provides that if other business has intervened after the
member had uttered obnoxious words in debate, he shall not be held to
answer therefor nor be subject to censure by the House.
Although some members of the court expressed doubts of petitioner's
cause of action and the Court's jurisdiction, the majority decided to hear
the matter further, and required respondents to answer, without issuing
any preliminary injunction. Evidently aware of such circumstance with
its implications, and pressed for time in view of the imminent
adjournment of the legislative session, the special committee continued
to perform its talk, and after giving Congressman Osmeña a chance to
defend himself, submitted its reports on July 18, 1960, finding said
congressman guilty of serious disorderly behaviour; and acting on such
report, the House approved on the same day—before closing its
session—House Resolution No. 175, declaring him guilty as
recommended, and suspending him from office for fifteen months.
Thereafter, on July 19, 1960, the respondents (with the exception of
Congressmen De Pio, Abeleda, San Andres Ziga, Fernandez and Balatao)1
filed their answer, challenged the jurisdiction of this Court to entertain
the petition, defended the power of Congress to discipline its members
with suspension, upheld a House Resolution No. 175 and then invited
attention to the fact that Congress having ended its session on July 18,
1960, the Committee—whose members are the sole respondents—had
thereby ceased to exist.
There is no question that Congressman Osmeña, in a privilege speech
delivered before the House, made the serious imputations of bribery
against the President which are quoted in Resolution No. 59 and that he
refused to produce before the House Committee created for the purpose,
evidence to substantiate such imputations. There is also no question that
for having made the imputations and for failing to produce evidence in
Constitutional Law 1 Cases (D)
support thereof, he was, by resolution of the House, suspended from
office for a period of fifteen months for serious disorderly behaviour.
Resolution No. 175 states in part:
WHEREAS, the Special Committee created under and by virtue of
Resolution No. 59, adopted on July 8, 1960, found Representative
Sergio Osmeña, Jr., guilty of serious disorderly behaviour for
making without basis in truth and in fact, scurrilous, malicious,
reckless and irresponsible charges against the President of the
Philippines in his privilege speech of June 23, 1960; and
WHEREAS, the said charges are so vile in character that they
affronted and degraded the dignity of the House of
Representative: Now, Therefore, be it
RESOLVED by the House of Representatives. That Representative
Sergio Osmeña, Jr., be, as he hereby is, declared guilty of serious
disorderly behaviour; and . . .
As previously stated, Osmeña contended in his petition that: (1) the
Constitution gave him complete parliamentary immunity, and so, for
words spoken in the House, he ought not to be questioned; (20 that his
speech constituted no disorderly behaviour for which he could be
punished; and (3) supposing he could be questioned and discipline
therefor, the House had lost the power to do so because it had taken up
other business before approving House Resolution No. 59. Now, he takes
the additional position (4) that the House has no power, under the
Constitution, to suspend one of its members.
Section 15, Article VI of our Constitution provides that "for any speech or
debate" in Congress, the Senators or Members of the House of
Representative "shall not be questioned in any other place." This section
was taken or is a copy of sec. 6, clause 1 of Art. 1 of the Constitution of
the United States. In that country, the provision has always been
understood to mean that although exempt from prosecution or civil
actions for their words uttered in Congress, the members of Congress
may, nevertheless, be questioned in Congress itself. Observe that "they
shall not be questioned in any other place" than Congress.
65

Furthermore, the Rules of the House which petitioner himself has
invoked (Rule XVII, sec. 7), recognize the House's power to hold a
member responsible "for words spoken in debate."
Our Constitution enshrines parliamentary immunity which is a
fundamental privilege cherished in every legislative assembly of the
democratic world. As old as the English Parliament, its purpose "is to
enable and encourage a representative of the public to discharge his
public trust with firmness and success" for "it is indispensably necessary
that he should enjoy the fullest liberty of speech, and that he should be
protected from the resentment of every one, however powerful, to
whom exercise of that liberty may occasion offense."2 Such immunity has
come to this country from the practices of Parliamentary as construed
and applied by the Congress of the United States. Its extent and
application remain no longer in doubt in so far as related to the question
before us. It guarantees the legislator complete freedom of expression
without fear of being made responsible in criminal or civil actions before
the courts or any other forum outside of the Congressional Hall. But is
does not protect him from responsibility before the legislative body
itself whenever his words and conduct are considered by the latter
disorderly or unbecoming a member thereof. In the United States
Congress, Congressman Fernando Wood of New York was censured for
using the following language on the floor of the House: "A monstrosity, a
measure the most infamous of the many infamous acts of the infamous
Congress." (Hinds' Precedents, Vol. 2,. pp. 798-799). Two other
congressmen were censured for employing insulting words during
debate. (2 Hinds' Precedents, 799-801). In one case, a member of
Congress was summoned to testify on a statement made by him in
debate, but invoked his parliamentary privilege. The Committee rejected
his plea. (3 Hinds' Precedents 123-124.)
For unparliamentary conduct, members of Parliament or of Congress
have been, or could be censured, committed to prison3, even expelled by
the votes of their colleagues. The appendix to this decision amply attest
to the consensus of informed opinion regarding the practice and the
traditional power of legislative assemblies to take disciplinary action
against its members, including imprisonment, suspension or expulsion. It
mentions one instance of suspension of a legislator in a foreign country.
And to cite a local illustration, the Philippine Senate, in April 1949,
suspended a senator for one year.
Constitutional Law 1 Cases (D)
Needless to add, the Rules of Philippine House of Representatives
provide that the parliamentary practices of the Congress of the United
States shall apply in a supplementary manner to its proceedings.
This brings up the third point of petitioner: the House may no longer
take action against me, he argues, because after my speech, and before
approving Resolution No. 59, it had taken up other business.
Respondents answer that Resolution No. 59 was unanimously approved
by the House, that such approval amounted to a suspension of the House
Rules, which according to standard parliamentary practice may done by
unanimous consent.
Granted, counters the petitioner, that the House may suspended the
operation of its Rules, it may not, however, affect past acts or renew its
rights to take action which had already lapsed.
The situation might thus be compared to laws4 extending the period of
limitation of actions and making them applicable to actions that had
lapsed. The Supreme Court of the United States has upheld such laws as
against the contention that they impaired vested rights in violation of
the Fourteenth Amendment (Campbell vs. Holt, 115 U. S. 620). The states
hold divergent views. At any rate, court are subject to revocation
modification or waiver at the pleasure of the body adopting them."5 And
it has been said that "Parliamentary rules are merely procedural, and
with their observancem, the courts have no concern. They may be
waived or disregarded by the legislative body." Consequently, "mere
failure to conform to parliamentary usage will not invalidate the action
(taken by a deliberative body) when the requisited number of members
have agreed to a particular measure."6
The following is quoted from a reported decision of the Supreme court of
Tennessee:
The rule here invoked is one of parliamentary procedure, and it
is uniformly held that it is within the power of all deliberative
bodies to abolish, modify, or waive their own rules of procedure,
adopted for the orderly con duct of business, and as security
against hasty action. (Bennet vs. New Bedford, 110 Mass, 433;
Holt vs. Somerville, 127 Mass. 408, 411; City of Sadalia vs. Scott,
104 Mo. App. 595, 78 S. W. 276; Ex parte Mayor, etc., of Albany,
23 Wend. [N. Y.] 277, 280; Wheelock vs. City of Lowell, 196 Mass.
66

220, 230. 81 N. e. 977, 124 Am. St. Rep. 543, 12 Ann. Cas. 1109;
City of Corinth vs. Sharp, 107 Miss. 696, 65 So. 888; McGraw vs.
Whitson, 69 Iowa, 348, 28 N. W. 632; Tuell vs. Meacham
Contracting Co. 145 Ky. 181, 186, 140 S. W. Ann. Cas. 1913B,
802.) [Takenfrom the case of Rutherford vs. City of Nashville, 78
south Western Reporter, p. 584.]
It may be noted in this connection, that in the case of Congressman
Stanbery of Ohio, who insulted the Speaker, for which Act a resolution of
censure was presented, the House approved the resolution, despite the
argument that other business had intervened after the objectionable
remarks. (2 Hinds' Precedents pp. 799-800.)
On the question whether delivery of speeches attacking the Chief
Executive constitutes disorderly conduct for which Osmeña may be
discipline, many arguments pro and con have been advanced. We
believe, however, that the House is the judge of what constitutes
disorderly behaviour, not only because the Constitution has conferred
jurisdiction upon it, but also because the matter depends mainly on
factual circumstances of which the House knows best but which can not
be depicted in black and white for presentation to, and adjudication by
the Courts. For one thing, if this Court assumed the power to determine
whether Osmeña conduct constituted disorderly behaviour, it would
thereby have assumed appellate jurisdiction, which the Constitution
never intended to confer upon a coordinate branch of the Government.
The theory of separation of powers fastidiously observed by this Court,
demands in such situation a prudent refusal to interfere. Each
department, it has been said, had exclusive cognizance of matters within
its jurisdiction and is supreme within its own sphere. (Angara vs.
Electoral Commission, 63 Phil., 139.)
SEC. 200. Judicial Interference with Legislature. — The principle
is well established that the courts will not assume a jurisdiction
in any case amount to an interference by the judicial department
with the legislature since each department is equally
independent within the power conferred upon it by the
Constitution. . . . .
The general rule has been applied in other cases to cause the
courts to refuse to intervene in what are exclusively legislative
functions. Thus, where the stated Senate is given the power to
Constitutional Law 1 Cases (D)
example a member, the court will not review its action or revise
even a most arbitrary or unfair decision. (11 Am. Jur., Const. Law,
sec. p. 902.) [Emphasis Ours.].
The above statement of American law merely abridged the landmark
case of Clifford vs. French.7 In 1905, several senators who had been
expelled by the State Senate of California for having taken a bribe, filed
mandamus proceeding to compel reinstatement, alleging the Senate had
given them no hearing, nor a chance to make defense, besides falsity of
the charges of bribery. The Supreme Court of California declined to
interfere , explaining in orthodox juristic language:
Under our form of government, the judicial department has no
power to revise even the most arbitrary and unfair action of the
legislative department, or of either house thereof, taking in
pursuance of the power committed exclusively to that department
by the Constitution. It has been held by high authority that, even
in the absence of an express provision conferring the power,
every legislative body in which is vested the general legislative
power of the state has the implied power to expel a member for
any cause which it may deem sufficient. In Hiss. vs. Barlett, 3 Gray
473, 63 Am. Dec. 768, the supreme court of Mass. says, in
substance, that this power is inherent in every legislative body;
that it is necessary to the to enable the body 'to perform its high
functions, and is necessary to the safety of the state;' 'That it is a
power of self-protection, and that the legislative body must
necessarily be the sole judge of the exigency which may justify and
require its exercise. '. . . There is no provision authority courts to
control, direct, supervise, or forbid the exercise by either house of
the power to expel a member. These powers are functions of the
legislative department and therefore, in the exercise of the power
this committed to it, the senate is supreme. An attempt by this
court to direct or control the legislature, or either house thereof, in
the exercise of the power, would be an attempt to exercise
legislative functions, which it is expressly forbidden to do.
We have underscored in the above quotation those lines which in our
opinion emphasize the principles controlling this litigation. Although
referring to expulsion, they may as well be applied to other disciplinary
action. Their gist as applied to the case at bar: the House has exclusive
power; the courts have no jurisdiction to interfere.
67

Our refusal to intervene might impress some readers as subconscious
hesitation due to discovery of impermissible course of action in the
legislative chamber. Nothing of that sort: we merely refuse to disregard
the allocation of constitutional functions which it is our special duty to
maintain. Indeed, in the interest of comity, we feel bound to state that in
a conscientious survey of governing principles and/or episodic
illustrations, we found the House of Representatives of the United States
taking the position upon at least two occasions, that personal attacks
upon the Chief Executive constitute unparliamentary conduct or breach
of orders.8 And in several instances, it took action against offenders, even
after other business had been considered.9
Petitioner's principal argument against the House's power to suspend is
the Alejandrino precedent. In 1924, Senator Alejandrino was, by
resolution of Senate, suspended from office for 12 months because he
had assaulted another member of the that Body or certain phrases the
latter had uttered in the course of a debate. The Senator applied to this
Court for reinstatement, challenging the validity of the resolution.
Although this Court held that in view of the separation of powers, it had
no jurisdiction to compel the Senate to reinstate petitioner, it
nevertheless went on to say the Senate had no power to adopt the
resolution because suspension for 12 months amounted to removal, and
the Jones Law (under which the Senate was then functioning) gave the
Senate no power to remove an appointive member, like Senator
Alejandrino. The Jones Law specifically provided that "each house may
punish its members for disorderly behaviour, and, with the concurrence
of two-thirds votes, expel an elective member (sec. 18). Note particularly
the word "elective."
The Jones Law, it mist be observed, empowered the Governor General to
appoint "without consent of the Senate and without restriction as to
residence senators . . . who will, in his opinion, best represent the
Twelfth District." Alejandrino was one appointive Senator.
It is true, the opinion in that case contained an obiter dictum that
"suspension deprives the electoral district of representation without
that district being afforded any means by which to fill that vacancy." But
that remark should be understood to refer particularly to the appointive
senator who was then the affected party and who was by the same Jones
Law charged with the duty to represent the Twelfth District and maybe
Constitutional Law 1 Cases (D)
the view of the Government of the United States or of the Governor-
General, who had appointed him.
It must be observed, however, that at that time the Legislature had only
those power which were granted to it by the Jones Law10; whereas now
the Congress has the full legislative powers and preprogatives of a
sovereign nation, except as restricted by the Constitution. In other
words, in the Alejandrino case, the Court reached the conclusion that the
Jones Law did not give the Senate the power it then exercised—the
power of suspension for one year. Whereas now, as we find, the
Congress has the inherent legislative prerogative of suspension11 which
the Constitution did not impair. In fact, as already pointed out, the
Philippine Senate suspended a Senator for 12 months in 1949.
The Legislative power of the Philippine Congress is plenary,
subject only to such limitations are found in the Republic's
Constitution. So that any power deemed to be legislative by
usage or tradition, is necessarily possessed by the Philippine
Congress, unless the Constitution provides otherwise. (Vera vs.
Avelino, 77 Phil., 192, 212 .)
In any event, petitioner's argument as to the deprivation of the district's
representation can not be more weightly in the matter of suspension
than in the case of imprisonment of a legislator; yet deliberative bodies
have the power in proper cases, to commit one of their members to jail.12
Now come questions of procedure and jurisdiction. the petition intended
to prevent the Special Committee from acting tin pursuance of House
Resolution No. 59. Because no preliminary injunction had been issued,
the Committee performed its task, reported to the House, and the latter
approved the suspension order. The House had closed it session, and the
Committee has ceased to exist as such. It would seem, therefore, the case
should be dismissed for having become moot or academic.13 Of course,
there is nothing to prevent petitioner from filing new pleadings to
include all members of the House as respondents, ask for reinstatement
and thereby to present a justiciable cause. Most probable outcome of
such reformed suit, however, will be a pronouncement of lack of
jurisdiction, as in Vera vs. Avelino14 and Alejandrino vs. Qeuaon.15
At any rate, having perceived suitable solutions to the important
questions of political law, the Court thought it proper to express at this
68

time its conclusions on such issues as were deemed relevant and
decisive.
ACCORDINGLY, the petition has to be, and is hereby dismissed. So
ordered.
Paras, C. J., Bautista Angelo, Concepcion, Barrera, Gutierrez David,
Paredes, and Dizon, JJ., concur.
Separate Opinions
REYES, J. B. L., J., dissenting:
I concur with the majority that the petition filed by Congressman
Osmeña, Jr. does not make out a case either for declaratory judgment or
certiorari, since this Court has no original jurisdiction over declaratory
judgment proceedings, and certiorari is available only against bodies
exercising judicial or quasi-judicial powers. The respondent committee,
being merely fact finding, was not properly subject to certiorari.
I submit, however, that Congressman Osmeña was entitled to invoke the
Court's jurisdiction on his petition for a writ of prohibition against the
committee, in so far as House Resolution No. 59 (and its sequel,
Resolution No. 175) constituted an unlawful attempt to divest him of an
immunity from censure or punishment, an immunity vested under the
very Rules of the House of Representatives.
House Rule XVII, on Decorum and Debates, in its section V, provides as
follows:
If it is requested that a Member be called to order for words
spoken in debate, the Member making such request shall
indicate the words excepted to, and they shall be taken down in
writing by the Secretary and read aloud to the House; but the
Member who uttered them shall not be held to answer, nor be
subject to the censure of the House therefor, if further debate or
other business has intervened.
Constitutional Law 1 Cases (D)
Now, it is not disputed that after Congressman Osmeña had delivered his
speech and before the House adopted, fifteen days later, the resolution
(No. 59) creating the respondent Committee and empowering it to
investigate and recommend proper action in the case, the House had
acted on other matters and debated them. That being the case, the
Congressman, even before the resolution was adopted, had ceased to be
answerable for the words uttered by him in his privilege speech. By the
express wording of the Rules, he was no longer subject to censure or
disciplinary action by the House. Hence, the resolution, in so far as it
attempts to divest him of the immunity so acquired and subject him to
discipline and punishment, when he was previously not so subject,
violates the constitutional inhibition against ex post facto legislation, and
Resolution Nos. 59 and 175 are legally obnoxious and invalid on that
score. The rule is well established that a law which deprives an accused
person of any substantial right or immunity possessed by him before its
passage is ex post facto as to prior offenses (Cor. Jur. vol. 16-A, section
144, p. 153; People vs. Mc Donnell, 11 Fed. Supp. 1015; People vs.
Talklington, 47 Pac. 2d 368; U. S. vs. Garfinkel, 69 F. Supp. 849).
The foregoing also answer the contention that since the immunity was
but an effect of section 7 of House Rule XVII, the House could, at any
time, remove it by amending those Rules, and Resolutions Nos. 59 and
175 effected such an amendment by implication. the right of the House
to amend its Rules does not carry with it the right to retroactive divest
the petitioner of an immunity he had already acquired. The Bill of Rights
is against it.
It is contended that as the liability for his speech attached when the
Congressman delivered it, the subsequent action of the House only
affected the procedure for dealing with that liability. But whatever
liability Congressman Sergio Osmeña, Jr. then incurred was extinguished
when the House thereafter considered other business; and this
extinction is a substantive right that can not be subsequently torn away
to his disadvantage. On an analogous issue, this Court, in People vs. Parel,
44 Phil., 437 has ruled:
In regards to the point that the subject of prescription of
penalties and of penal actions pertains to remedial and not
substantive law, it is to be observed that in the Spanish legal
system, provisions for limitation or prescription of actions are
invariably classified as substantive and not as remedial law; we
69

thus find the provisions for the prescription of criminal actions
in the Penal Code and not in the 'Ley de Enjuiciamiento Criminal.'
This is in reality a more logical law. In criminal cases
prescription is not, strictly speaking, a matter of procedure; it
bars or cuts off the right to punish the crime and consequently,
goes directly to the substance of the action. . . . (Emphasis
supplied.).
I see no substantial difference, from the standpoint of the constitutional
prohibition against ex post facto laws, that the objectionable measures
happen to be House Resolutions and not statutes. In so far as the
position of petitioner Osmeña is concerned, the essential point is that he
is being subjected to a punishment to which he was formerly not
amenable. And while he was only meted out a suspension of privileges
that suspension is as much a penalty as imprisonment or a fine, which
the House could have inflicted upon him had it been so minded. Such
punitive action is violative of the spirit, if not of the letter, of the
constitutional provision against ex post facto legislation. Nor is it
material that the punishment was inflicted in the exercise of disciplinary
power. "The ex post facto effect of a law," the Federal Supreme Court has
ruled, "can not be evaded by giving civil form to that which is essentially
criminal" (Burgess vs. Salmon, 97 L. Ed. [U. S.] 1104, 1106; Cummings vs.
MIssouri, 18 L. Ed. 276).
The plain purpose of the immunity provided by the House rules is to
protect the freedom of action of its members and to relieve them from
the fear of disciplinary action taken upon second thought, as a result of
political convenience, vindictiveness, or pressures. it is unrealistic to
overlook that, without the immunity so provided, no member of
Congress can remain free from the haunting fear that his most innocuous
expressions may at any time afterwards place him in jeopardy of
punishment whenever a majority, however transient, should feel that
the shifting sands of political expediency so demand. A rule designed to
assure that members of the House of the House may freely act as their
conscience and sense of duty should dictate complements the
parliamentary immunity from outside pressure enshrined in our
Constitution, and is certainly deserving of liberal interpretation and
application.
The various precedents, cited in the majority opinion, as instances of
disciplinary taken notwithstanding intervening business, are not truly
Constitutional Law 1 Cases (D)
applicable. Of the five instances cited by Deschkler (in his edition of
Jefferson's Manual), the case of Congressman Watson of Georgia
involved also printed disparaging remarks by the respondent (III Hinds'
Precedents, sec. 2637), so that the debate immunity rule afforded no
defense; that of Congressmen Weaver and Sparks was one of censure for
actual disorderly conduct (II Hinds, sec. 1657); while the cases of
Congressmen Stanbery of Ohio, Alex Long of Ohio, and of Lovell
Rousseau of Kentucky (II Hinds, sec. 1248, 1252 and 1655) were decided
under Rule 62 of the U. s. House of Representatives as it stood before the
1880 amendments, and was differently worded. Thus, in the Rousseau
case, the ruling of Speaker Colfax was to the following effect (II Hinds'
Precedents, page 1131):
This sixty-second rule is divided in the middle a semicolon, and
the Chair asks the attention of the gentleman from Iowa (Mr.
Wilson) top the language of that rule, as it settles the whole
question:
62. If a Member be called to order for words spoken in debate,
the person calling him to be order shall repeat the words
excerpted to —
That is, the "calling to order" is "excepting" to words spoken in
debate "and they shall be taken done in writing at the Clerk's
table; and no Member shall be held to answer, or be subject to
the censure of the House, for words spoken, or other business
has intervened, after the words spoken, and before exception to
them shall have been taken.
The first part of this rule declares that "calling to order" is
"excepting to words spoken in debate." the second part of the
rule declares that a Member shall not be held subject to censure
for words spoken in debate if other business has intervened after
the words have been spoken and before "exception" to them has
been taken. Exception to the words of the gentleman from Iowa
(Mr. Grinnell) was taken by the gentleman from Illinois (Mr.
Harding), the gentleman from Massachusetts (Mr. Banks), the
gentleman from Kentucky (Mr. Rosseau), and also by the Speaker
of the House, as the records of the Congressional Globe will
show. The distinction is obvious between the two parts of the
rule. In the first part it speaks of a Member excepting to language
70

of another and having the words taken down. In the last part of
the rule it says he shall not be censured thereafter unless
exception to his words were taken; but it omits to add as an
condition that words must also have been taken down. The
substantial point, indeed the only point, required in the latter
part of the rule is, that exception to the objectionable words
must have taken.
The difference between the Rules as invoked in these cases and the
Rules of our House of Representatives is easily apparent. As Rule 62 of
the United States House of Representatives stood before 1880, all that
was required to preserve the disciplinary power of the Hose was that
exception should have been taken to the remarks on the floor before
further debate or other business intervened. Under the rules of the
Philippines House of Representatives, however, the immunity becomes
absolute if other debate or business has taken place before the motion
for censure is made, whether or not exceptions or point of order have
been made to the remarks complained of at the time they were uttered.
While it is clear that the parliamentary immunity established in Article
VI, section 15 of our Constitution does not bar the members being
questioned and disciplined by Congress itself fro remarks made on the
floor, that disciplinary power does not, as I have noted, include the right
to retroactively amend the rules so as to divest a member of an
immunity already gained. And if Courts can shield an ordinary citizen
from the effects of ex post facto legislation, I see no reason why a
member of Congress should be deprived of the same protection. Surely
membership in the Legislature does not mean forfeiture of the liberties
enjoyed by the individual citizen.
The Constitution empowers each house to determine its rules of
proceedings. If may not by its rules ignore constitutional restraint
or violate fundamental rights and there should be a reasonable
relation between the mode or method of proceeding established
by the rule and the result which is sought to be attained. But
within these limitation all matters of method are open to the
determination of the House, and it is no impeachment of the rule
to say that some other way would be better, more accurate or
even more just. (U. S. vs. Ballin, Joseph & Co., 36 Law Ed., 324-
325.)
Constitutional Law 1 Cases (D)
Court will not interfere with the action of the state senate in
reconsideration its vote on a resolution submitting an
amendment to the Constitution, where its action was in
compliance with its own rules, and there was no constitutional
provision to the contrary. (Crawford vs. Gilchrist, 64 Fla. 41, 59
So. 963) (Emphasis supplied.).
Finally, that this Court possesses no power to direct or compel the
Legislature to act in any specified manner, should not deter it from
recognizing and declaring the unconstitutionality and nullify of the
questioned resolutions and of all action that has been disbanded after
the case was filed, the basic issues remain so important as to require
adjudication by this Court.
LABRADOR, J., dissenting:
I fully concur in the above dissent Mr. Justice J. B. L. Reyes, Reyes, and I
venture to add:
Within a constitutional government and in a regime which purports to
be one of law, where law is supreme, even the Congress in the exercise of
the power conferred upon it to discipline its members, must follow the
rules and regulation that it had itself promulgated for its guidance and
for that of its members. The rules in force at the time Congressman
Osmeña delivered the speech declared by the House to constitutes a
disorderly conduct provides:
. . . but the Member who uttered them shall not be held to
answer, nor be subject to the censure of the House therefor, if
further debate or other business has intervened. (Rule XVII, Sec.
7, Rules, House of Representatives.)
Congressman Osmeña delivered the speech in question on June 23,
1960. It was only on July 8, or 15 days after June 23, 1060 when the
House created the committee that would investigated him. For fully 15
days the House took up other matters. All that was done, while the
speech was being delivered, was to have certains portions thereof
deleted. I hold that pursuant to its own Rules the House may no longer
punish Congressman Osmeña for the delivered fifteen days before.
71
 Constitutional Law 1 Cases (D)

The fact that no action was promptly taken to punish Congressman
Osmeña immediately after its delivery, except to have some part of the
speech deleted, show that the members of the House did not consider
Osmeña's speech a disorderly conduct. The idea to punish Congressman
Osmeña, which came 15 days after, was, therefore, an afterthought. It is,
therefore, clear that Congressman Osmeña is being made to answer for
an act, after the time during which he could be punished therefor had
lapsed.
The majority opinion holds that the House can amend its rules any time.
We do not dispute this principle, but we hold that the House may not do
so in utter disregard of the fundamental principle of law that an
amendment takes place only after its approval, or, as in this case, to the
extent of punishing an offense after the time to punishing an had
elapsed. Since the rule, that a member can be punished only before other
proceedings have intervened, was in force at the time Congressman
Osmeña delivered his speech, the House may not ignore said rule. It is
said in the majority opinion that the rule limiting the period for
imposition of a penalty for a speech to the day it was made, is merely one
of procedure. With due respect to the majority, we do not think that it is
merely a rule of procedure; we believe it actually is a limitation of the
time in which the House may take punitive action against an offending
member; it is alienation (in reference to time) on the liability to
punishment. As Mr. Justice J.B.L., Reyes points out, the rule is
substantive, not merely a procedural principle, and may not be ignored
when invoked.
him is, to point out the fact that the rule is being violated in meting out
punishment for his speech; we should not shirk our responsibility to
declare his rights under the rule simply on the board excuse of
separation of powers. Even the legislature may not ignore the rule it has
promulgated for the government of the conduct of its members, and the
fact that a coordinate branches of the Government is involved, should
not deter us from performing our duty. We may not possess the power
to enforce our opinion if the House chooses to disregard the same. In
such case the members thereof stand before the bar of public opinion to
answer for their act in ignoring what they themselves have approved as
their norm of conduct.
Let it be clearly understood that the writer of this dissent personally
believe that vitreous attacks against the Chief Executive, or any official
or citizen for that matter, should be condemned. But where the Rules,
promulgated by the House itself, fix the period during which punishment
may be meted out, said Rules should be enforced regardless of who may
be prejudicated thereby. Only in that way may the supermacy of the law
be maintained.

If this Government of laws and not of men, then the House should
observe its own rule and not violate it by punishing a member after the
period for indictment and punishment had already passed. Not because
the subject of the Philippic is no less than the Chief Magistrate of the
nation should the rule of the House be ignored by itself. It is true that our
Government is based on the principle of separation of powers between
the three branches thereof. I also agree to the corollary proposition that
this Court should not interfere with the legislature in the manner it
performs its functions; but I also hold that the Court cannot abandon its
duty to pronounce what the law is when any of its (the House) members,
or any humble citizen, invokes the law.

Congressman Osmeña had invoked the protection of a rule of the House.

I believe it is our bounden duty to state what the rule being invoked by

72

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127255 August 14, 1997
JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN HENRY R. OSMEÑA,
WIGBERTO E. TAÑADA, AND RONALDO B. ZAMORA, petitioner,
vs.
JOSE DE VENECIA, RAUL DAZA, RODOLFO ALBANO, THE EXECUTIVE
SECRETARY, THE SECRETARY OF FINANCE, AND THE
COMMISSIONER OF INTERNAL REVENUE, respondents.
MENDOZA, J.:
This is a petition for certiorari and/or prohibition challenging the
validity of Republic Act No. 8240, which amends certain provisions of
the National Internal Revenue Code by imposing so-called "sin taxes"
(actually specific taxes) on the manufacture and sale of beer and
cigarettes.
Petitioners are members of the House of Representatives. They brought
this suit against respondents Jose de Venecia, Speaker of the House of
Representatives, Deputy Speaker Raul Daza, Majority Leader Rodolfo
Albano, the Executive Secretary, the Secretary of Finance, and the
Commissioner of Internal Revenue, charging violation of the rules of the
House which petitioners claim are "constitutionally mandated" so that
their violation is tantamount to a violation of the Constitution.
The law originated in the House of Representatives as H. No. 7198. This
bill was approved on third reading on September 12, 1996 and
transmitted on September 16, 1996 to the Senate which approved it
with certain amendments on third reading on November 17, 1996. A
bicameral conference committee was formed to reconcile the
disagreeing provisions of the House and Senate versions of the bill.
Constitutional Law 1 Cases (D)
The bicameral conference committee submitted its report to the House
at 8 a.m. on November 21, 1996. At 11:48 a.m., after a recess, Rep.
Exequiel Javier, chairman of the Committee on Ways and Means,
proceeded to deliver his sponsorship speech, after which he was
interpellate. Rep. Rogelio Sarmiento was first to interpellate. He was
interrupted when Rep. Arroyo moved to adjourn for lack of quorum.
Rep. Antonio Cuenco objected to the motion and asked for a head count.
After a roll call, the Chair (Deputy Speaker Raul Daza) declared the
presence of a quorum.1 Rep. Arroyo appealed the ruling of the Chair, but
his motion was defeated when put to a vote. The interpellation of the
sponsor thereafter proceeded.
Petitioner Rep. Joker Arroyo registered to interpellate. He was fourth in
the order, following Rep. Rogelio Sarmiento, Rep. Edcel C. Lagman and
Rep. Enrique Garcia. In the course of his interpellation, Rep. Arroyo
announced that he was going to raise a question on the quorum,
although until the end of his interpellation he never did. What happened
thereafter is shown in the following transcript of the session on
November 21, 1996 of the House of Representatives, as published by
Congress in the newspaper issues of December 5 and 6, 1996:
MR. ALBANO. MR. Speaker, I move that we now approved and
ratify the conference committee report.
THE DEPUTY SPEAKER (Mr. Daza). Any objection to the motion?
MR. ARROYO. What is that, Mr. Speaker?
THE DEPUTY SPEAKER (Mr. Daza). There being none, approved.
(Gavel)
MR. ARROYO. No, no, no, wait a minute, Mr. Speaker, I stood up. I
want to know what is the question that the Chair asked the
distinguished sponsor.
THE DEPUTY SPEAKER (Mr. Daza). The session is suspended for
one minute.
(It was 3:01 p.m.)
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(3:40 p.m., the session was resumed)
THE DEPUTY SPEAKER (Mr. Daza). The session is resumed.
MR. ALBANO. Mr. Speaker, I move to adjourn until four o'clock,
Wednesday, next week.
THE DEPUTY SPEAKER (Mr. Daza). The session is adjourned
until four o'clock, Wednesday, next week.
(It was 3:40 p.m.)
On the same day, the bill was signed by the Speaker of the House of
Representatives and the President of the Senate and certified by the
respective secretaries of both Houses of Congress as having been finally
passed by the House of Representatives and by the Senate on November
21, 1996. The enrolled bill was signed into law by President Fidel V.
Ramos on November 22, 1996.
Petitioners claim that there are actually four different version of the
transcript of this portion of Rep. Arroyo's interpellation: (1) the
transcript of audio-sound recording of the proceedings in the session
hall immediately after the session adjourned at 3:40 p.m. on November
21, 1996, which petitioner Rep. Edcel C. Lagman obtained from he
operators of the sound system; (2) the transcript of the proceedings
from 3:00 p.m. to 3:40 p.m. of November 21, 1996, as certified by the
Chief of the Transcription Division on November 21, 1996, also obtained
by Rep. Lagman; (3) the transcript of the proceedings from 3:00 p.m. to
3:40 p.m. of November 21, 1996 as certified by the Chief of the
Transcription Division on November 28, 1996, also obtained by Rep.
Lagman; and (4) the published version abovequoted. According to
petitioners, the four versions differ on three points, to wit: (1) in the
audio-sound recording the word "approved," which appears on line 13
in the three other versions, cannot be heard; (2) in the transcript
certified on November 21, 1996 the world "no" on line 17 appears only
once, while in the other versions it is repeated three times; and (3) the
published version does not contain the sentence "(Y)ou better prepare
for a quorum because I will raise the question of the quorum," which
appears in the other versions.
Petitioners' allegations are vehemently denied by respondents.
However, there is no need to discuss this point as petitioners have
Constitutional Law 1 Cases (D)
announced that, in order to expedite the resolution of this petition, they
admit, without conceding, the correctness of the transcripts relied upon
by the respondents. Petitioners agree that for purposes of this
proceeding the word "approved" appears in the transcripts.
Only the proceedings of the House of Representatives on the conference
committee report on H. No. 7198 are in question. Petitioners' principal
argument is that R.A. No. 8240 is null and void because it was passed in
violation of the rules of the House; that these rules embody the
"constitutional mandate" in Art. VI, §16(3) that "each House may
determine the rules of its proceedings" and that, consequently, violation
of the House rules is a violation of the Constitution itself. They contend
that the certification of Speaker De Venecia that the law was properly
passed is false and spurious.
More specifically, petitioners charge that (1) in violation of Rule VIII, §35
and Rule XVII, §103 of the rules of the House, 2 the Chair, in submitting
the conference committee report to the House, did not call for the years
or nays, but simply asked for its approval by motion in order to prevent
petitioner Arroyo from questioning the presence of a quorum; (2) in
violation of Rule XIX, §112, 3 the Chair deliberately ignored Rep.
Arroyo's question, "What is that . . . Mr. Speaker?" and did not repeat
Rep. Albano's motion to approve or ratify; (3) in violation of Rule XVI,
§97,4 the Chair refused to recognize Rep. Arroyo and instead proceeded
to act on Rep. Albano's motion and afterward declared the report
approved; and (4) in violation of Rule XX, §§121-122, Rule XXI, §123, and
Rule XVIII, §109, 5 the Chair suspended the session without first ruling
on Rep. Arroyo's question which, it is alleged, is a point of order or a
privileged motion. It is argued that Rep. Arroyo's query should have
been resolved upon the resumption of the session on November 28,
1996, because the parliamentary situation at the time of the
adjournment remained upon the resumption of the session.
Petitioners also charge that the session was hastily adjourned at 3:40
p.m. on November 21, 1996 and the bill certified by Speaker Jose De
Venecia to prevent petitioner Rep. Arroyo from formally challenging the
existence of a quorum and asking for a reconsideration.
Petitioners urge the Court not to feel bound by the certification of the
Speaker of the House that the law had been properly passed, considering
the Court's power under Art. VIII, §1 to pass on claims of grave abuse of
74

discretion by the other departments of the government, and they ask for
a reexamination of Tolentino v. Secretary of Finance, 6 which affirmed the
conclusiveness of an enrolled bill, in view of the changed membership of
the Court.
The Solicitor General filed a comment in behalf of all respondents. In
addition, respondent De Venecia filed a supplemental comment.
Respondents' defense is anchored on the principle of separation of
powers and the enrolled bill doctrine. They argue that the Court is not
the proper forum for the enforcement of the rules of the House and that
there is no justification for reconsidering the enrolled bill doctrine.
Although the Constitution provides in Art. VI, §16(3) for the adoption by
each House of its rules of proceedings, enforcement of the rules cannot
be sought in the courts except insofar as they implement constitutional
requirements such as that relating to three readings on separate days
before a bill may be passed. At all events, respondents contend that, in
passing the bill which became R.A. No. 8240, the rules of the House, as
well as parliamentary precedents for approval of conference committee
reports on mere motion, were faithfully observed.
In his supplemental comment, respondent De Venecia denies that his
certification of H. No. 7198 is false and spurious and contends that under
the journal entry rule, the judicial inquiry sought by the petitioners is
barred. Indeed, Journal No. 39 of the House of Representatives, covering
the sessions of November 20 and 21, 1996, shows that "On Motion of Mr.
Albano, there being no objection, the Body approved the Conference
Committee Report on House Bill No. 7198." 7 This Journal was approved
on December 2, 1996 over the lone objection of petitioner Rep. Lagman.
8 It may not by its rules ignore constitutional restraints or violate
After considering the arguments of the parties, the Court finds no ground
for holding that Congress committed a grave abuse of discretion in
enacting R.A. No. 8240. This case is therefore dismissed.
First. It is clear from the foregoing facts that what is alleged to have been
violated in the enactment of R.A. No. 8240 are merely internal rules of
procedure of the House rather than constitutional requirements for the
enactment of a law, i.e., Art. VI, §§26-27. Petitioners do not claim that
there was no quorum but only that, by some maneuver allegedly in
violation of the rules of the House, Rep. Arroyo was effectively prevented
from questioning the presence of a quorum.
Constitutional Law 1 Cases (D)
Petitioners contend that the House rules were adopted pursuant to the
constitutional provision that "each House may determine the rules of its
proceedings" 9 and that for this reason they are judicially enforceable.
To begin with, this contention stands the principle on its head. In the
decided cases, 10 the constitutional provision that "each House may
determine the rules of its proceedings" was invoked by parties, although
not successfully, precisely to support claims of autonomy of the
legislative branch to conduct its business free from interference by
courts. Here petitioners cite the provision for the opposite purpose of
invoking judicial review.
But the cases, both here and abroad, in varying forms of expression, all
deny to the courts the power to inquire into allegations that, in enacting
a law, a House of Congress failed to comply with its own rules, in the
absence of showing that there was a violation of a constitutional
provision or the rights of private individuals. In Osmeña v. Pendatun, 11
it was held: "At any rate, courts have declared that 'the rules adopted by
deliberative bodies are subject to revocation, modification or waiver at
the pleasure of the body adopting them.' And it has been said that
'Parliamentary rules are merely procedural, and with their observance,
the courts have no concern. They may be waived or disregarded by the
legislative body.' Consequently, 'mere failure to conform to
parliamentary usage will not invalidate the action (taken by a
deliberative body) when the requisite number of members have agreed
to a particular measure.'"
In United States v. Ballin, Joseph & Co., 12 the rules was stated thus: "The
Constitution empowers each house to determine its rules of proceedings.
fundamental rights, and there should be a reasonable relation between
the mode or method of proceeding established by the rule and the result
which is sought to be attained. But within these limitations all matters of
method are open to the determination of the House, and it is no
impeachment of the rule to say that some other way would be better,
more accurate, or even more just. It is no objection to the validity of a
rule that a different one has been prescribed and in force for a length of
time. The power to make rules is not one which once exercised is
exhausted. It is a continuous power, always subject to be exercised by the
House, and within the limitations suggested, absolute and beyond the
challenge of any other body or tribunal."
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In Crawford v. Gilchrist, 13 it was held: "The provision that each House
shall determine the rules of its proceedings does not restrict the power
given to a mere formulation of standing rules, or to the proceedings of
the body in ordinary legislative matters; but in the absence of
constitutional restraints, and when exercised by a majority of a
constitutional quorum, such authority extends to a determination of the
propriety and effect of any action as it is taken by the body as it proceeds
in the exercise of any power, in the transaction of any business, or in the
performance of any duty conferred upon it by the Constitution."
In State ex rel. City Loan & Savings Co. v. Moore, 14 the Supreme Court of
Ohio stated: "The provision for reconsideration is no part of the
Constitution and is therefore entirely within the control of the General
Assembly. Having made the rule, it should be regarded, but a failure to
regard it is not the subject-matter of judicial inquiry. It has been decided
by the courts of last resort of many states, and also by the United States
Supreme Court, that a legislative act will not be declared invalid for
noncompliance with rules."
In State v. Savings Bank, 15 the Supreme Court of Errors of Connecticut
declared itself as follows: "The Constitution declares that each house
shall determine the rules of its own proceedings and shall have all
powers necessary for a branch of the Legislature of a free and
independent state. Rules of proceedings are the servants of the House
and subject to its authority. This authority may be abused, but when the
House has acted in a matter clearly within its power, it would be an
unwarranted invasion of the independence of the legislative department
for the court to set aside such action as void because it may think that the
House has misconstrued or departed from its own rules of procedure."
In McDonald v. State, 16 the Wisconsin Supreme Court held: "When it
appears that an act was so passed, no inquiry will be permitted to
ascertain whether the two houses have or have not complied strictly
with their own rules in their procedure upon the bill, intermediate its
introduction and final passage. The presumption is conclusive that they
have done so. We think no court has ever declared an act of the legislature
void for non-compliance with the rules of procedure made by itself , or the
respective branches thereof, and which it or they may change or suspend
at will. If there are any such adjudications, we decline to follow them."
Constitutional Law 1 Cases (D)
Schweizer v. Territory 17 is illustrative of the rule in these cases. The
1893 Statutes of Oklahoma provided for three readings on separate days
before a bill may be passed by each house of the legislature, with the
proviso that in case of an emergency the house concerned may, by two-
thirds vote, suspend the operation of the rule. Plaintiff was convicted in
the district court of violation of a law punishing gambling. He appealed
contending that the gambling statute was not properly passed by the
legislature because the suspension of the rule on three readings had not
been approved by the requisite two-thirds vote. Dismissing this
contention, the State Supreme Court of Oklahoma held:
We have no constitutional provision requiring that the
legislature should read a bill in any particular manner. It may,
then, read or deliberate upon a bill as it sees fit. either in
accordance with its own rules, or in violation thereof, or without
making any rules. The provision of section 17 referred to is
merely a statutory provision for the direction of the legislature in
its action upon proposed measures. It receives its entire force
from legislative sanction, and it exists only at legislative pleasure.
The failure of the legislature to properly weigh and consider an
act, its passage through the legislature in a hasty manner, might
be reasons for the governor withholding his signature thereto;
but this alone, even though it is shown to be a violation of a rule
which the legislature had made to govern its own proceedings,
could be no reason for the court's refusing its enforcement after
it was actually passed by a majority of each branch of the
legislature, and duly signed by the governor. The courts cannot
declare an act of the legislature void on account of noncompliance
with rules of procedure made by itself to govern its deliberations.
McDonald v. State, 80 Wis. 407, 50 N.W. 185; In re Ryan, 80 Wis.
414, 50 N.W. 187; State v. Brown, 33 S.C. 151, 11 S.E. 641;
Railway Co. v. Gill, 54 Ark. 101, 15 S.W. 18.
We conclude this survey with the useful summary of the rulings by
former Chief Justice Fernando, commenting on the power of each House
of Congress to determine its rules of proceedings. He wrote:
Rules are hardly permanent in character. The prevailing view is
that they are subject to revocation, modification or waiver at the
pleasure of the body adopting them as they are primarily
procedural. Courts ordinary have no concern with their
76

observance. They may be waived or disregarded by the
legislative body. Consequently, mere failure to conform to them
does not have the effect of nullifying the act taken if the requisite
number of members have agreed to a particular measure. The
above principle is subject, however, to this qualification. Where
the construction to be given to a rule affects person other than
members of the legislative body the question presented is
necessarily judicial in character. Even its validity is open to
question in a case where private rights are involved. 18
In this case no rights of private individuals are involved but only those of
a member who, instead of seeking redress in the House, chose to transfer
the dispute to this Court. We have no more power to look into the
internal proceedings of a House than members of that House have to
look over our shoulders, as long as no violation of constitutional
provisions is shown.
Petitioners must realize that each of the three departments of our
government has its separate sphere which the others may not invade
without upsetting the delicate balance on which our constitutional order
rests. Due regard for the working of our system of government, more
than mere comity, compels reluctance on our part to enter upon an
inquiry into an alleged violation of the rules of the House. We must
accordingly decline the invitation to exercise our power.
Second. Petitioners, quoting former Chief Justice Roberto Concepcion's
sponsorship in the Constitutional Commission, contend that under Art.
VIII, §1, "nothing involving abuse of discretion [by the other branches of
the government] amounting to lack or excess of jurisdiction is beyond
judicial review." 19 Implicit in this statement of the former Chief Justice,
however, is an acknowledgment that the jurisdiction of this Court is
subject to the case and controversy requirement of Art. VIII. §5 and,
therefore, to the requirement of a justiciable controversy before courts
can adjudicate constitutional questions such as those which arise in the
field of foreign relations. For while Art. VIII, §1 has broadened the scope
of judicial inquiry into areas normally left to the political departments to
decide, such as those relating to national security, 20 it has not
altogether done away with political questions such as those which arise
in the field of foreign relations. As we have already held, under Art. VIII,
§1, this Court's function
Constitutional Law 1 Cases (D)
is merely [to] check whether or not the governmental branch or
agency has gone beyond the constitutional limits of its jurisdiction,
not that it erred or has a different view. In the absence of a
showing . . . [of] grave abuse of discretion amounting to lack of
jurisdiction, there is no occasion for the Court to exercise its
corrective power. . . . It has no power to look into what it thinks is
apparent error. 21
If, then, the established rule is that courts cannot declare an act of the
legislature void on account merely of noncompliance with rules of
procedure made by itself, it follows that such a case does not present a
situation in which a branch of the government has "gone beyond the
constitutional limits of its jurisdiction" so as to call for the exercise of
our Art. VIII. §1 power.
Third. Petitioners claim that the passage of the law in the House was
"railroaded." They claim that Rep. Arroyo was still making a query to the
Chair when the latter declared Rep. Albano's motion approved.
What happened is that, after Rep. Arroyo's interpellation of the sponsor
of the committee report, Majority Leader Rodolfo Albano moved for the
approval and ratification of the conference committee report. The Chair
called out for objections to the motion. Then the Chair declared: "There
being none, approved." At the same time the Chair was saying this,
however, Rep. Arroyo was asking, "What is that . . . Mr. Speaker?" The
Chair and Rep. Arroyo were talking simultaneously. Thus, although Rep.
Arroyo subsequently objected to the Majority Leader's motion, the
approval of the conference committee report had by then already been
declared by the Chair, symbolized by its banging of the gavel.
Petitioners argue that, in accordance with the rules of the House, Rep.
Albano's motion for the approval of the conference committee report
should have been stated by the Chair and later the individual votes of the
members should have been taken. They say that the method used in this
case is a legislator's nightmare because it suggests unanimity when the
fact was that one or some legislators opposed the report.
No rule of the House of Representative has been cited which specifically
requires that in case such as this involving approval of a conference
committee report, the Chair must restate the motion and conduct a viva
voce or nominal voting. On the other hand, as the Solicitor General has
77

pointed out, the manner in which the conference committee report on H.
No. 7198 was approval was by no means a unique one. It has basis in
legislative practice. It was the way the conference committee report on
the bills which became the Local Government Code of 1991 and the
conference committee report on the bills amending the Tariff and
Customs Code were approved.
In 1957, the practice was questioned as being contrary to the rules of the
House. The point was answered by Majority Leader Arturo M. Tolentino
and his answer became the ruling of the Chair Mr. Tolentino said:
Mr. TOLENTINO. The fact that nobody objects means a
unanimous action of the House. Insofar as the matter of
procedure is concerned, this has been a precedent since I came
here seven years ago, and it has been the procedure in this House
that if somebody objects, then a debate follows and after the
debate, then the voting comes in.
xxx xxx xxx
Mr. Speaker, a point of order was raised by the gentleman from
Leyte, and I wonder what his attitude is nor on his point of order.
I should just like to state that I believe that we have had a
substantial compliance with the Rules. The Rule invoked is not
one that refers to statutory or constitutional requirement, and a
substantial compliance, to my mind, is sufficient. When the Chair
announces the vote by saying "Is there any objection?" and
nobody objects, then the Chair announces "The bill is approved
on second reading." If there was any doubt as to the vote, any
motion to divide would have been proper. So, if that motion is
not presented, we assume that the House approves the measure.
So I believe there is substantial compliance here, and if anybody
wants a division of the House he can always ask for it, and the
Chair can announce how many are in favor and how many are
against. 22
Indeed, it is no impeachment of the method to say that some other way
would be better, more accurate and even more just. 23 The advantages
or disadvantages, the wisdom or folly of a method do not present any
matter for judicial consideration. 24 In the words of the U.S. Circuit
Court of Appeals, "this Court cannot provide a second opinion on what is
Constitutional Law 1 Cases (D)
the best procedure. Notwithstanding the deference and esteem that is
properly tendered to individual congressional actors, our deference and
esteem for the institution as a whole and for the constitutional command
that the institution be allowed to manage its own affairs precludes us
from even attempting a diagnosis of the problem." 25
Nor does the Constitution require that the yeas and the nays of
the Members be taken every time a House has to vote, except only in the
following instances; upon the last and third readings of a bill, 26 at the
request of one-fifth of the Members present, 27 and in repassing a bill
over the veto of the President. 28 Indeed, considering the fact that in the
approval of the original bill the votes of the members by yeas and nays
had already been taken, it would have been sheer tedium to repeat the
process.
Petitioners claim that they were prevented from seeking reconsideration
allegedly as a result of the precipitate suspension and subsequent
adjournment of the session. 29 It would appear, however, that the
session was suspended to allow the parties to settle the problem,
because when it resumed at 3:40 p.m. on that day Rep. Arroyo did not
say anything anymore. While it is true that the Majority Leader moved
for adjournment until 4 p.m. of Wednesday of the following week, Rep.
Arroyo could at least have objected if there was anything he wanted to
say. The fact, however, is that he did not. The Journal of November 21,
1996 of the House shows.
ADJOURNMENT OF SESSION
On motion of Mr. Albano, there being no objection, the Chair
declared the session adjourned until four o'clock in the afternoon
of Wednesday, November 27, 1996.
It was 3:40 p.m. Thursday, November 21, 1996. (emphasis
added)
This Journal was approved on December 3, 1996. Again, no one objected
to its approval except Rep. Lagman.
It is thus apparent that petitioners' predicament was largely of their own
making. Instead of submitting the proper motions for the House to act
upon, petitioners insisted on the pendency of Rep. Arroyo's question as
78

an obstacle to the passage of the bill. But Rep. Arroyo's question was not,
in form or substance, a point of order or a question of privilege entitled
to precedence.30 And even if Rep. Arroyo's question were so, Rep.
Albano's motion to adjourn would have precedence and would have put
an end to any further consideration of the question. 31
Given this fact, it is difficult to see how it can plausibly be contended that
in signing the bill which became R.A. No. 8240, respondent Speaker of
the House be acted with grave abuse of his discretion. Indeed, the phrase
"grave abuse of discretion amounting to lack or excess of jurisdiction"
has a settled meaning in the jurisprudence of procedure. It means such
capricious and whimsical exercise of judgment by a tribunal exercising
judicial or quasi judicial power as to amount to lack of power. As Chief
Justice Concepcion himself said in explaining this provision, the power
granted to the courts by Art. VIII. §1 extends to cases where "a branch of
the government or any of its officials has acted without jurisdiction or in
excess of jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction." 32
Here, the matter complained of concerns a matter of internal procedure
of the House with which the Court should not he concerned. To repeat,
the claim is not that there was no quorum but only that Rep. Arroyo was
effectively prevented from questioning the presence of a quorum. Rep.
Arroyo's earlier motion to adjourn for lack of quorum had already been
defeated, as the roll call established the existence of a quorum. The
question of quorum cannot be raised repeatedly — especially when the
quorum is obviously present — for the purpose of delaying the business
of the House. 33 Rep. Arroyo waived his objection by his continued
interpellation of the sponsor for in so doing he in effect acknowledged
the presence of a quorum. 34
At any rate it is noteworthy that of the 111 members of the House earlier
found to be present on November 21, 1996, only the five, i.e., petitioners
in this case, are questioning the manner by which the conference
committee report on H. No. 7198 was approved on that day. No one,
except Rep. Arroyo, appears to have objected to the manner by which
the report was approved. Rep. John Henry Osmeña did not participate in
the bicameral conference committee proceedings. 35 Rep. Lagman and
Rep. Zamora objected to the report 36 but not to the manner it was
approved; while it is said that, if voting had been conducted. Rep. Tañada
would have voted in favor of the conference committee report.37
Constitutional Law 1 Cases (D)
Fourth. Under the enrolled bill doctrine, the signing of H. No. 7198 by the
Speaker of the House and the President of the Senate and the
certification by the secretaries of both Houses of Congress that it was
passed on November 21, 1996 are conclusive of its due enactment. Much
energy and learning is devoted in the separate opinion of Justice Puno,
joined by Justice Davide, to disputing this doctrine. To be sure, there is
no claim either here or in the decision in the EVAT cases [Tolentino v.
Secretary of Finance] that the enrolled bill embodies a conclusive
presumption. In one case 38 we "went behind" an enrolled bill and
consulted the Journal to determine whether certain provisions of a
statute had been approved by the Senate.
But, where as here there is no evidence to the contrary, this Court will
respect the certification of the presiding officers of both Houses that a
bill has been duly passed. Under this rule, this Court has refused to
determine claims that the three-fourths vote needed to pass a proposed
amendment to the Constitution had not been obtained, because "a duly
authenticated bill or resolution imports absolute verify and is binding on
the courts." 39 This Court quoted from Wigmore on Evidence the
following excerpt which embodies good, if old-fashioned, democratic
theory:
The truth is that many have been carried away with the
righteous desire to check at any cost the misdoings of
Legislatures. They have set such store by the Judiciary for this
purpose that they have almost made them a second and higher
Legislature. But they aim in the wrong direction. Instead of
trusting a faithful Judiciary to check an inefficient Legislature,
they should turn to improve the Legislature. The sensible
solution is not to patch and mend casual errors by asking the
Judiciary to violate legal principle and to do impossibilities with
the Constitution; but to represent ourselves with competent,
careful, and honest legislators, the work of whose hands on the
statute-roll may come to reflect credit upon the name of popular
government. 40
This Court has refused to even look into allegations that the enrolled bill
sent to the President contained provisions which had been
"surreptitiously" inserted in the conference committee:
79

[W]here allegations that the constitutional procedures for the
passage of bills have not been observed have no more basis than
another allegation that the Conference Committee
"surreptitiously" inserted provisions into a bill which it had
prepared, we should decline the invitation to go behind the
enrolled copy of the bill. To disregard the "enrolled bill" rule in
such cases would be to disregard the respect due the other two
departments of our government. 41
It has refused to look into charges that an amendment was made upon
the last reading of a bill in violation of Art. VI. §26(2) of the Constitution
that "upon the last reading of a bill, no amendment shall be allowed." 42
In other cases, 43 this Court has denied claims that the tenor of a bill was
otherwise than as certified by the presiding officers of both Houses of
Congress.
The enrolled bill doctrine, as a rule of evidence, is well established. It is
cited with approval by text writers here and abroad. 44 The enrolled bill
rule rests on the following considerations:
. . . As the President has no authority to approve a bill not passed
by Congress, an enrolled Act in the custody of the Secretary of
State, and having the official attestations of the Speaker of the
House of Representatives, of the President of the Senate, and of
the President of the United States, carries, on its face, a solemn
assurance by the legislative and executive departments of the
government, charged, respectively, with the duty of enacting and
executing the laws, that it was passed by Congress. The respect
due to coequal and independent departments requires the
judicial department to act upon that assurance, and to accept, as
having passed Congress, all bills authenticated in the manner
stated; leaving the court to determine, when the question
properly arises, whether the Act, so authenticated, is in
conformity with the Constitution. 45
To overrule the doctrine now, as the dissent urges, is to repudiate the
massive teaching of our cases and overthrow an established rule of
evidence.
Constitutional Law 1 Cases (D)
Indeed, petitioners have advanced no argument to warrant a departure
from the rule, except to say that, with a change in the membership of the
Court, the three new members may be assumed to have an open mind on
the question of the enrolled bill rule Actually, not three but four (Cruz,
Feliciano, Bidin, and Quiason, JJ.) have departed from the Court since our
decision in the EVAT cases and their places have since been taken by
four new members (Francisco, Hermosisima, Panganiban, and Torres,
JJ.) Petitioners are thus simply banking on the change in the membership
of the Court.
Moreover, as already noted, the due enactment of the law in question is
confirmed by the Journal of the House of November 21, 1996 which
shows that the conference committee report on H. No. 7198, which
became R.A. No. 8740, was approved on that day. The keeping of the
Journal is required by the Constitution, Art. VI, §16(4) provides:
Each House shall keep a Journal of its proceedings, and from time
to time publish the same, excepting such parts as may, in its
judgment, affect national security; and the yeas and nays on any
question shall, at the request of one-fifth of the Members
present, be entered in the Journal.
Each House shall also keep a Record of its proceedings.
The Journal is regarded as conclusive with respect to matters that are
required by the Constitution to be recorded therein. 46 With respect to
other matters, in the absence of evidence to the contrary, the Journals
have also been accorded conclusive effect. Thus, in United States v. Pons,
47 this Court spoke of the imperatives of public policy for regarding the
Journals as "public memorials of the most permanent character," thus:
"They should be public, because all are required to conform to them;
they should be permanent, that rights acquired today upon the faith of
what has been declared to be law shall not be destroyed tomorrow, or at
some remote period of time, by facts resting only in the memory of
individuals." As already noted, the bill which became R.A. No. 8240 is
shown in the Journal. Hence its due enactment has been duly proven.
It would be an unwarranted invasion of the prerogative of a coequal
department for this Court either to set aside a legislative action as void
because the Court thinks the House has disregarded its own rules of
procedure, or to allow those defeated in the political arena to seek a
80
 Constitutional Law 1 Cases (D)

rematch in the judicial forum when petitioners can find their remedy in
that department itself. The Court has not been invested with a roving
commission to inquire into complaints, real or imagined, of legislative
skullduggery. It would be acting in excess of its power and would itself
be guilty of grave abuse of its discretion were it to do so. The suggestion
made in a case 48 may instead appropriately be made here: petitioners
can seek the enactment of a new law or the repeal or amendment of R.A.
No. 8240. In the absence of anything to the contrary, the Court must
assume that Congress or any House thereof acted in the good faith belief
that its conduct was permitted by its rules, and deference rather than
disrespect is due the judgment of that body. 49

WHEREFORE, the petition for certiorari and prohibition is DISMISSED.

SO ORDERED.

Narvasa, C.J., Padilla, Melo, Kapunan, Francisco and Hermosisima, Jr., JJ.,
concur.

Regalado, J., concurs in the result.

Bellosillo and Panganiban, JJ., took no part.

Torres, Jr., J., is on leave.

81

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
July 25, 2017
G.R. No. 227757
REPRESENTATIVE TEDDY BRAWNER BAGUILAT, JR.,
REPRESENTATIVE EDCEL C. LAGMAN, REPRESENTATIVE RAUL A.
DAZA, REPRESENTATIVE EDGAR R. ERICE, REPRESENTATIVE
EMMANUEL A. BILLONES, REPRESENTATIVE TOMASITO S.
VILLARIN, and REPRESENTATIVE GARY C. ALEJANO, Petitioners
vs.
SPEAKER PANTALEON D. ALVAREZ, MAJORITY LEADER RODOLFO C.
FARINAS, and REPRESENTATIVE DANILO E. SUAREZ, Respondents
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for mandamus1 filed by petitioners
Representatives Teddy Brawner Baguilat, Jr., (Rep. Baguilat), Edcel C.
Lagman (Rep. Lagman), Raul A. Daza, Edgar R. Erice, Emmanuel A.
Billones, Tomasito S. Villarin, and Gary C. Alejano (collectively,
petitioners), all members of the House of Representatives, essentially
praying that respondents Speaker Pantaleon D. Alvarez (Speaker
Alvarez), Majority Leader Rodolfo C. Farifias (Rep. Fariñas), and
Representative Danilo E. Suarez (Rep. Suarez; collectively, respondents),
also members of the House of Representatives, be compelled to
recognize: (a) Rep. Baguilat as the Minority Leader of the 17th Congress
of the House of Representatives; and (b) petitioners as the legitimate
members of the Minority.
The Facts
The petition alleges that prior to the opening of the 17th Congress on July
25, 2016, several news articles surfaced about Rep. Suarez's
announcement that he sought the adoption or anointment of President
Constitutional Law 1 Cases (D)
Rodrigo Roa Duterte's Administration as the "Minority Leader" to lead a
"cooperative minority" in the House of Representatives (or the House),
and even purportedly encamped himself in Davao shortly after the May
2016 Elections to get the endorsement of President Duterte and the
majority partisans. The petition further claims that to ensure Rep.
Suarez's election as the Minority Leader, the supermajority coalition in
the House allegedly "lent" Rep. Suarez some of its members to feign
membership in the Minority, and thereafter, vote for him as the Minority
Leader.2
On July 25, 2016, which was prior to the election of the Speaker of the
House of Representatives, then-Acting Floor Leader Rep. Farinas and
Rep. Jose Atienza (Rep. Atienza) had an interchange before the Plenary,
wherein the latter elicited the following from the former: (a) all those
who vote for the winning Speaker shall belong to the Majority and
those who vote for the other candidates shall belong to the
Minority; (b) those who abstain from voting shall likewise be
considered part of the Minority; and (c) the Minority Leader shall
be elected by the members of the Minority.3 Thereafter, the Elections
for the Speakership were held, "[w]ith 252 Members voting for
[Speaker] Alvarez, eight [(8)] voting for Rep. Baguilat, seven [(7)] voting
for Rep. Suarez, 21 abstaining and one [(l)] registering a no vote,"4 thus,
resulting in Speaker Alvarez being the duly elected Speaker of the House
of Representatives of the 17th Congress.
Petitioners hoped that as a "long-standing tradition" of the House -
where the candidate who garnered the second (2nd)-highest number of
votes for Speakership automatically becomes the Minority Leader - Rep.
Baguilat would be declared and recognized as the Minority Leader.
However, despite numerous follow-ups from respondents, Rep. Baguilat
was never recognized as such.5
On August 1, 2016, one of the "abstentionists," Representative Harlin
Neil Abayon, III (Rep. Abayon), manifested before the Plenary that on
July 27, 2016, those who did not vote for Speaker Alvarez (including the
21 "abstentionists") convened and elected Rep. Suarez as the Minority
Leader.6 Thereafter, on August 15, 2016, Rep. (now, Majority Leader)
Farinas moved for the recognition of Rep. Suarez as the Minority Leader.
This was opposed by Rep. Lagman essentially on the ground that various
"irregularities" attended Rep. Suarez's election as Minority Leader,
particularly: (a) that Rep. Suarez was a member of the Majority as he
82

voted for Speaker Alvarez, and that his "transfer" to the Minority was
irregular; and (b) that the "abstentionists" who constituted the bulk of
votes in favor of Rep. Suarez's election as Minority Leader are supposed
to be considered independent members of the House, and thus,
irregularly deemed as part of the Minority.7 However, Rep. Lagman's
opposition was overruled, and consequently, Rep. Suarez was officially
recognized as the House Minority Leader.
Thus, petitioners filed the instant petition for mandamus, insisting that
Rep. Baguilat should be recognized as the Minority Leader in light of: (a)
the "long-standing tradition" in the House where the candidate who
garnered the second (2nd)-highest number of votes for Speakership
automatically becomes the Minority Leader; and (b) the irregularities
attending Rep. Suarez's election to said Minority Leader position.
For his part, Rep. Suarez maintains that the election of Minority Leader
is an internal matter to the House of Representatives. Thus, absent any
finding of violation of the Constitution or grave abuse of discretion, the
Court cannot interfere with such internal matters of a coequal branch of
the govemment.8 In the same vein, the Office of the Solicitor General
(OSG), on behalf of Speaker Alvarez and Majority Leader Farinas
contends, inter alia, that the election of Minority Leader is within the
exclusive realm of the House of Representatives, which the Court cannot
intrude in pursuant to the principle of separation of powers, as well as
the political question doctrine. Similarly, the OSG argues that the
recognition of Rep. Suarez as the House Minority Leader was not tainted
with any violation of the Constitution or grave abuse of discretion and,
thus, must be sustained.9
The Issue Before the Court
The essential issue for resolution is whether or not respondents may be
compelled via a writ of mandamus to recognize: (a) Rep. Baguilat as the
Minority Leader of the House of Representatives; and (b) petitioners as
the only legitimate members of the House Minority.
The Court's Ruling
The petition is without merit.
Constitutional Law 1 Cases (D)
"Mandamus is defined as a writ commanding a tribunal, corporation,
board or person to do the act required to be done when it or he
unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or station, or unlawfully
excludes another from the use and enjoyment of a right or office or
which such other is entitled, there being no other plain, speedy, and
adequate remedy in the ordinary course oflaw."10 In Special People, Inc.
Foundation v. Canda,11 the Court explained that the peremptory writ of
mandamus is an extraordinary remedy that is issued only in extreme
necessity, and the ordinary course of procedure is powerless to afford an
adequate and speedy relief to one who has a clear legal right to the
performance of the act to be compelled.12
After a judicious study of this case, the Court finds that petitioners have
no clear legal right to the reliefs sought. Records disclose that prior to
the Speakership Election held on July 25, 2016, then-Acting Floor Leader
Rep. Farinas responded to a parliamentary inquiry from Rep. Atienza as
to who would elect the Minority Leader of the House of Representatives.
Rep. Farinas then articulated that: (a) all those who vote for the
winning Speaker shall belong to the Majority and those who vote
for other candidates shall belong to the Minority; (b) those who
abstain from voting shall likewise be considered part of the
Minority; and (c) the Minority Leader shall be elected by the
members of the Minority.13 Thereafter, the election of the Speaker of
the House proceeded without any objection from any member of
Congress, including herein petitioners. Notably, the election of the
Speaker of the House is the essential and formative step conducted at
the first regular session of the 17th Congress to determine the
constituency of the Majority and Minority (and later on, their respective
leaders), considering that the Majority would be comprised of those who
voted for the winning Speaker and the Minority of those who did not.
The unobjected procession of the House at this juncture is reflected in its
Journal No. 1 dated July 25, 2016,14 which, based on case law, is
conclusive15 as to what transpired in Congress:
PARLIAMENTARY INQUIRY OF REP. ATIENZA
Recognized by the Chair, Rep. Atienza inquired as to who would elect the
Minority Leader of the House of Representatives.
REMARKS OF REP. FARINAS
83

In reply, Rep. Fariñas referred to Section 8 of the Rules of the house on
membership to the Majority and the Minority. He explained that the
Members who voted for the winning candidate for the Speaker shall
constitute the Majority and shall elect from among themselves the
Majority Leader. while those who voted against the winning Speaker or did
not vote at all shall belong to the Minority and would thereafter elect their
Minority Leader.
NOMINAL VOTING ON THE NOMINEES FOR SPEAKER OF
THE HOUSE
Thereafter, on motion of Rep. Farinas, there being no objection, the
Members proceeded to the election of the Speaker of the House of
Representatives. The Presiding Officer then directed Deputy Secretary
General Adasa to call the Roll for nominal voting for the Speaker of the
House and requested each Member to state the name of the candidate he
or she will vote for.
The result of the voting was as follows:
For Rep. Pantaleon D. Alvarez:
xxxx
For Rep. Teddy Brawner Baguilat Jr.
xxxx
For Rep. Danilo E. Suarez
xxxx
Abstained
xxxx
With 252 Members voting for Rep. Alvarez (P.), eight voting for Rep.
Baguilat, seven voting for Rep. Suarez, 21 abstaining and one registering
Constitutional Law 1 Cases (D)
a no vote, the Presiding Officer declared Rep. Alvarez (P.) as the duly
elected Speaker of the House of Representatives for the 17th Congress.
COMMITTEE ON NOTIFICATION
On motion of Rep. Farinas, there being no objection, the Body
constituted a committee composed of the following Members to notify
Rep. Alvarez (P.) of his election as Speaker of the House of
Representatives and to escort the Speaker-elect to the rostrum for his
oath-taking: Reps. Eric D. Singson, Mercedes K. Alvarez, Fredenil "Fred"
H. Castro, Raneo "Ranie" E. Abu, Lucy T. Gomez, Nancy A. Catamco,
Elenita Milagros "Eileen" Ermita-Buhain, Rose Marie "Baby" J. Arenas,
Mylene J. Garcia-Albano, Gwendolyn F. Garcia, Marlyn L.
PrimiciasAgabas, Emmeline Aglipay-Villar, Sarah Jane I. Elago and
Victoria Isabel G. Noel.
SUSPENSION OF SESSION
The Presiding Officer motu proprio suspended the session at
12:43p.m.16
After Speaker Alvarez took his oath of office, he administered the oath of
office to all Members of the House of the 17th Congress.17 On the same
day, the Deputy Speakers, and other officers of the House (among others,
the Majority Leader) were elected and all took their respective oaths of
office.18
During his privilege speech delivered on July 26, 2016, which was a full
day after all the above-mentioned proceedings had already been
commenced and completed, Rep. Lagman questioned Rep. Fariñas'
interpretation of the Rules.19 Aside from the belated timing of Rep.
Lagman's query, Rep. Suarez aptly points out that the Journal for that
session does not indicate any motion made, seconded and carried to
correct the entry in the Journal of the previous session (July 25, 2016)
pertinent to any recording error that may have been made, as to indicate
that in fact, a protest or objection was raised.20
Logically speaking, the foregoing circumstances would show that the
House of Representatives had effectively adopted Rep. Farinas' proposal
anent the new rules regarding the membership of the Minority, as well
as the process of determining who the Minority Leader would be. More
84

significantly, this demonstrates the House's deviation from the "legal
bases" of petitioners' claim for entitlement to the reliefs sought before
this Court, namely: (a) the "long-standing tradition" of automatically
awarding the Minority Leadership to the second placer in the
Speakership Elections, i.e., Rep. Baguilat; and (b) the rule21 that those
who abstained in the Speakership Elections should be deemed as
independent Members of the House of Representatives, and thus, they
could not have voted for a Minority Leader in the person of Rep.
Suarez.22 As will be explained hereunder, the deviation by the Lower
House from the aforesaid rules is not averse to the Constitution.
Section 16 (1), Article VI of the 1987 Constitution reads:
Section 16. (1) The Senate shall elect its President and the House of
Representatives, its Speaker, by a majority vote of all its respective
Members.
Each house shall choose such other officers as it may deem necessary.
Under this provision, the Speaker of the House of Representatives shall
be elected by a majority vote of its entire membership. Said provision
also states that the House of Representatives may decide to have officers
other than the Speaker, and that the method and manner as to how these
officers are chosen is something within its sole control.23 In the case of
Defensor-Santiago v. Guingona,24 which involved a dispute on the
rightful Senate Minority Leader during the 11th Congress (1998-2001),
this Court observed that "[w]hile the Constitution is explicit on the
manner of electing x x x [a Speaker of the House of Representative,] it is,
however, dead silent on the manner of selecting the other officers [of the
Lower House]. All that the Charter says is that ' [e]ach House shall
choose such other officers as it may deem necessary.' [As such], the
method of choosing who will be such other officers is merely a derivative
of the exercise of the prerogative conferred by the aforequoted
constitutional provision. Therefore, such method must be prescribed by
the [House of Representatives] itself, not by [the] Court. "25
Corollary thereto, Section 16 (3), Article VI26 of the Constitution vests in
the House of Representatives the sole authority to, inter alia, "determine
the rules of its proceedings." These "legislative rules, unlike statutory
laws, do not have the imprints of permanence and obligatoriness during
their effectivity. In fact, they 'are subject to revocation, modification or
Constitutional Law 1 Cases (D)
waiver at the pleasure of the body adopting them.' Being merely matters
of procedure, their observance are of no concern to the courts, for said
rules may be waived or disregarded by the legislative body at will, upon
the concurrence of a majority [of the House of Representatives]. "27
Hence, as a general rule, "[t]his Court has no authority to interfere and
unilaterally intrude into that exclusive realm, without running afoul of
[C]onstitutional principles that it is bound to protect and uphold x x x.
Constitutional respect and a becoming regard for the sovereign acts of a
coequal branch prevents the Court from prying into the internal
workings of the [House of Representatives]."28
Of course, as in any general rule, there lies an exception. While the Court
in taking jurisdiction over petitions questioning an act of the political
departments of government, will not review the wisdom, merits or
propriety of such action, it will, however, strike it down on the ground of
grave abuse of discretion.29 This stems from the expanded concept of
judicial power, which, under Section 1, Article VIII of the 1987
Constitution, expressly "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." Case law
decrees that "[t]he foregoing text emphasizes the judicial department's
duty and power to strike down grave abuse of discretion on the part of
any branch or instrumentality of government including Congress. It is an
innovation in our political law. As explained by former Chief Justice
Roberto Concepcion:30
[T]he judiciary is the final arbiter on the question of whether or not a
branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously as to constitute
an abuse of discretion amounting to excess of jurisdiction. This is not
only a judicial power but a duty to pass judgment on matters of this
nature.31
Accordingly, this Court "will not shirk, digress from or abandon its
sacred duty and authority to uphold the Constitution in matters that
involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the
government."32
85
 Constitutional Law 1 Cases (D)

However, as may be gleaned from the circumstances as to how the

ALFREDO BENJAMIN S.
House had conducted the questioned proceedings and its apparent FRANCIS H. JARDELEZA
CAGUIOA
deviation from its traditional rules, the Court is hard-pressed to find any Associate Justice
Associate Justice
attending grave abuse of discretion which would warrant its intrusion in
this case. By and large, this case concerns an internal matter of a coequal,
political branch of government which, absent any showing of grave SAMUEL R. MARTIRES NOEL G. TIJAM
abuse of discretion, cannot be judicially interfered with. To rule Associate Justice Associate Justice
otherwise would not only embroil this Court in the realm of politics, but
also lead to its own breach of the separation of powers doctrine.33 ANDRES REYES, JR.
Verily, "[i]t would be an unwarranted invasion of the prerogative of a Associate Justice
coequal department for this Court either to set aside a legislative action
as void [only] because [it] thinks [that] the House has disregarded its CERTIFICATION
own rules of procedure, or to allow those defeated in the political arena
to seek a rematch in the judicial forum when petitioners can find their I certify that the conclusions in the above Decision had been reached in
remedy in that department itself."34 consultation before the case was assigned to the writer of the opinion of
the Court’s Division.
WHEREFORE, the petition is DISMISSED.
MARIA LOURDES P.A. SERENO
SO ORDERED. Chief Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE
DIOSDADO M. PERALTA
CASTRO
Associate Justice
Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

JOSE CATRAL MENDOZA MARVIC M.V.F. LEONEN

Associate Justice Associate Justice

86