Legislature

City of Davao vs.
RTC Br XII Davao City
SECOND DIVISION
THE CITY OF DAVAO, CITY TREASURER AND THE CITY ASSESSOR OF DAVAO CITY, Petitioners, G.R. No. 127383 Present: PUNO, J., Chairman, AUSTRIA-MARTINEZ, CALLEJO, SR., TINGA, and CHICO-NAZARIO, JJ.
- versus -
THE REGIONAL TRIAL Promulgated: COURT, BRANCH XII, DAVAO CITY AND THE GOVERNMENT August 18, 2005 SERVICE INSURANCE SYSTEM (GSIS), Respondents. x-------------------------------------------------------------------x
DECISION
TINGA, J.: A Davao City Regional Trial Court (RTC) upheld the taxexempt status of the Government Service Insurance System (GSIS) for the years 1992 to 1994 in contravention of the mandate under the Local Government Code of 1992,[1] the precedent set by this Court in Mactan-Cebu International Airport Authority v. Hon.
City of Davao vs. RTC Br XII Davao City
Marcos,[2] and the public policy on local autonomy enshrined in the Constitution.[3] The matter was elevated to this Court directly from the trial court on a pure question of law.[4] The facts are uncontroverted. On 8 April 1994, the GSIS Davao City branch office received a Notice of Public Auction scheduling the public bidding of GSIS properties located in Matina and Ulas, Davao City for non-payment of realty taxes for the years 1992 to 1994 totaling Two Hundred Ninety Five Thousand Seven Hundred Twenty One Pesos and Sixty One Centavos (P295,721.61).[5] The auction was subsequently reset by virtue of a deadline extension allowed by Davao City for the payment of delinquent real property taxes.[6]
On 28 July 1994, the GSIS received Warrants of Levy and Notices of Levy on three parcels of land owned by the GSIS. Another Notice of Public Auction was received by the GSIS on 29 August 1994, setting the date of auction sale for 20 September 1994. On 13 September 1994, the GSIS filed a Petition for Certiorari, Prohibition, Mandamus And/Or Declaratory Relief with the RTC of Davao City. It also sought the issuance of a temporary restraining order. The case was raffled to Branch 12, presided by Judge Maximo Magno Libre. On 13 September 1994, the RTC issued a temporary restraining order for a period of twenty (20)
days,[7] effectively enjoining the auction sale scheduled seven days later. Following exchange of arguments, the RTC issued an Order dated 3 April 1995 issuing a writ of preliminary injunction effective for the duration of the suit.[8] At the pre-trial, it was agreed that the sole issue for resolution was purely a question of law, that is, whether Sections 234 and 534 of the Local Government Code, which have withdrawn real property tax exemptions of government owned and controlled corporations (GOCCs), have also withdrawn from the GSIS its right to be exempted from payment of the realty taxes sought to be levied by Davao City.[9] The parties submitted their respective memoranda. On 28 May 1996, the RTC rendered the Decision[10] now assailed before this Court. It concluded that notwithstanding the enactment of the Local Government Code, the GSIS retained its exemption from all taxes, including real estate taxes. The RTC cited Section 33 of Presidential Decree (P.D.) No. 1146, the Revised Government Service Insurance Act of 1977, as amended by P. D. No. 1981, which mandated such exemption. The RTC conceded that the tax exempting statute, P.D. No. 1146, was enacted prior to the Local Government Code. However, it noted that the earlier law had prescribed two conditions in order that the tax exemption provided therein could be withdrawn by future enactments, namely: (1) that Section 33 be expressly and categorically repealed by law; and (2) that a provision be enacted to substitute the declared policy of exemption from any and all taxes as an essential factor for the solvency of the GSIS fund.[11] The RTC concluded that
both conditions had not been satisfied by the Local Government Code. The RTC likewise accorded weight to Legal Opinion No. 165 of the Secretary of Justice dated 16 December 1996 concluding that Section 33 was not repealed by the Local Government Code, and a memorandum emanating from the Office of the President dated 14 February 1995 expressing the same opinion.[12] The dispositive portion of the assailed Decision reads:
Now then, in light of the foregoing observation, the court perceives, that the cause of action asseverated by petitioner in its petition has been well established by law and jurisprudence, and therefore the following relief should be granted: a) The tax exemption privilege of petitioner should be upheld and continued and that the warrants of levy and notices of levy issued by the respondent Treasurer is hereby voided and declared of no effect; b) Let a writ of prohibition be issued restraining the City Treasurer from proceeding with the auction sale of the subject properties, as well as the respondents Register of Deeds from annotating the warrants/notices of levy on the certificate of titles of petitioners real properties subject of this suit; and c) Compelling the City Assessor of Davao City to include the properties of petitioner in the list of properties exempt from payment of realty tax and if the warrants and levies issued by the City Treasurer had been annotated in the memorandum of encumbrance on the certificates of title of petitioners properties, to cancel such annotation so that the certificates of titles of petitioners will be free from such liens and encumbrances. SO ORDERED.[13]
Petitioners Motion for Reconsideration was denied by the RTC in an Order dated 30 October 1996, hence the present petition.
Petitioners argue that the exemption granted in Section 33 of P.D. No. 1146, as amended, was effectively withdrawn upon the enactment of the Local Government Code, particularly Sections 193 and 294 thereof. These provisions made the GSIS, along with all other GOCCs, subject to realty taxes. Petitioners point out that under Section 534(f) of the Local Government Code, even special laws, such as PD No. 1146, which are inconsistent with the Local Government Code, are repealed or modified accordingly. On the other hand, GSIS contends, as the RTC held, that the requisites for repeal are laid down in Section 33 of P.D. No. 1146, as amended, namely that it be done expressly and categorically by law, and that a provision be enacted to substitute the declared policy of exemption from taxes as an essential factor for the solvency of the
GSIS fund. It stresses that it had been exempt from taxation as far back as 1936, when its original charter was enacted through Commonwealth Act No. 186.[14] It asserts further that this Court had previously recognized the extraordinary exemption of GSIS in Testate Estate of Concordia T. Lim v. City of Manila,[15] and such exemption has similarly been affirmed by the Secretary of Justice and the Office of the President in the aforementioned issuances also cited by the RTC.[16] GSIS likewise notes that had it been the intention of the legislature to repeal Section 33 of P.D. No. 1146 through the Local Government Code, said law would have included the appropriate retraction in its repealing clause found in Section 534(f). However, said section, according to the GSIS, partakes the nature of a general repealing provision which is accorded less weight in light of the rule that implied repeals are not favored. Consequently with its position that it remains exempt from realty taxation, the GSIS argues that the Notices of Assessment, Warrants and Notices of Levy, Notices of Public Auction Sale and the Annotations of the Notice of Levy are void ab initio.
A review of the relevant statutory provisions is in order. Presidential Decree No. 1146 was enacted in 1977 by President Marcos in the exercise of his legislative powers. Section 33, as originally enacted, read:
Sec. 33. Exemption from tax, Legal Process and Lien.- It is hereby declared to be the policy of the State that the actuarial solvency of the funds of the System shall be preserved and maintained at all times and that the contribution rates necessary to sustain the benefits under this Act shall be kept as low as possible in order not to burden the members of the system and/or their employees. . . . Accordingly, notwithstanding any laws to the contrary, the System, its assets, revenues including the accruals thereto, and benefits paid, shall be exempt from all taxes. These exemptions shall continue unless expressly and specifically revoked and any assessment against the System as of the approval of this Act are hereby considered paid.
As it stood then, Section 33 merely provided a general rule exempting the GSIS from all taxes. However, Section 33 of P.D. No. 1146 was amended in 1985 by President Marcos, again in the exercise of his legislative powers, through P.D. No. 1981. It was through this latter decree that a second paragraph was added to Section 33 delineating the requisites for repeal of the tax exemption enjoyed by the GSIS by incorporating the following:
Moreover, these exemptions shall not be affected by subsequent laws to the contrary, such as the provisions of Presidential Decree No. 1931 and other similar laws that have been or will be enacted, unless this section is expressly and categorically repealed by law and a provision is enacted to substitute the declared policy of exemption from any and all taxes as an essential factor for the solvency of the fund.[17]
It bears noting though, and it is perhaps key to understanding the necessity of the addendum provided under P.D. No. 1981, that a presidential decree enacted a year earlier, P.D. No. 1931, effectively withdrew all tax exemption privileges granted to GOCCs.[18] In fact, P.D. No. 1931 was specifically named in the afore-quoted addendum as among those laws which, despite passage, would not affect the tax exempt status of GSIS. Section 1 of P.D. No. 1931 states:
Sec. 1. The provisions of special or general law to the contrary notwithstanding, all exemptions from the payment of duties, taxes, fees, imposts and other charges heretofore granted in favor of government-owned or controlled corporations including their subsidiaries, are hereby withdrawn.
There is no doubt that the GSIS which was established way back in 1937 is a GOCC, a fact that GSIS itself admits in its petition for certiorari before the RTC.[19] It thus clear that Section 1 of P.D. No. 1931 expressly withdrew those exemptions granted to the GSIS. Presidential Decree No. 1931 did allow the exemption to be restored in special cases through an application for restoration with the Secretary of Finance, but otherwise, the exemptions granted to the GSIS prior to the enactment of P.D. No. 1931 were withdrawn. Notably, P.D. No. 1931 was also an exercise of legislative powers then accorded to President Marcos by virtue of Amendment No. 6 to the 1973 Constitution. Whether he was aware of the effect of P.D. No. 1931 on the GSISs tax-exempt status or the ramifications of the decree thereon is unknown; but apparently, he immediately reconsidered the withdrawal of the exemptions on the GSIS. Thus, P.D. No. 1981 was enacted, expressly stating that the
tax-exempt status of the GSIS under Section 33 of P.D. No. 1146 remained in place, notwithstanding the passage of P.D. No. 1931. However, P.D. No. 1981 did not stop there, serving merely as it should to restore the previous exemptions on the GSIS. It also attempted to proscribe future attempts to alter the tax-exempt status of the GSIS by imposing unorthodox conditions for its future repeal. Thus, as intimated earlier, a second paragraph was added to Section 33, containing the restrictions relied upon by the RTC and presently invoked by the GSIS before this Court. These laws have to be weighed against the Local Government Code of 1992, a landmark law which implemented the constitutional aspirations for a more extensive breadth of local autonomy. The Court, in Mactan, was asked to consider the effect of the Local Government Code on the taxability by local governments of GOCCs such as the Mactan Cebu International Airport Authority (MCIAA). Particularly, MCIAA invoked Section 133(o) of the Local Government Code as the basis for its claimed exemption, the provision reading:
SECTION 133. Common Limitations on the Taxing Powers of Local Government Units. Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following: .... (o) Taxes, fees or charges of any kind on the National Government, its agencies and instrumentalities and local government units.
However, the Court, in ruling MCIAA non-exempt from realty taxes, considered that Section 133 qualified the exemption of the National Government, its agencies and instrumentalities from local
taxation with the phrase unless otherwise provided herein. The Court then considered the other relevant provisions of the Local Government Code, particularly the following:
SECTION 193. Withdrawal of Tax Exemption Privileges. Unless otherwise provided in this Code, tax exemption or incentives granted to, or enjoyed by all persons, whether natural or juridical, including government-owned and controlled corporations, except local water districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code. SECTION 232. Power to Levy Real Property Tax. A province or city or a municipality within the Metropolitan Manila area may levy an annual ad valorem tax on real property such as land, building, machinery, and other improvements not hereafter specifically exempted. SECTION 234. Exemptions from Real Property Tax. -- The following are exempted from payment of the real property tax: (a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person; Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, non-profit or religious cemeteries and all lands, buildings, and improvements actually, directly, and exclusively used for religious charitable or educational purposes; All machineries and equipment that are actually, directly and exclusively used by local water districts and government-owned and controlled corporations engaged in the distribution of water and/or generation and transmission of electric power; All real property owned by duly registered cooperatives as provided for under R.A. No. 6938; and Machinery and equipment used for pollution control and environmental protection.
(b)
(c)
(d) (e)
Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all persons, whether natural or juridical, including all
government-owned or controlled corporations are hereby withdrawn upon the effectivity of this Code. (Emphasis supplied.)
Evidently, Section 133 was not intended to be so absolute a prohibition on the power of LGUs to tax the National Government, its agencies and instrumentalities, as evidenced by these cited provisions which otherwise provided. But what was the extent of the limitation under Section 133? This is how the Court, in a discussion of far-reaching consequence, defined the parameters in Mactan:
The foregoing sections of the LGC speak of: (a) the limitations on the taxing powers of local government units and the exceptions to such limitations; and (b) the rule on tax exemptions and the exceptions thereto. The use of exceptions or provisos in these sections, as shown by the following clauses: (1) "unless otherwise provided herein" in the opening paragraph of Section 133; (2) "Unless otherwise provided in this Code" in Section 193; (3) "not hereafter specifically exempted" in Section 232; and (4) "Except as provided herein" in the last paragraph of Section 234 initially hampers a ready understanding of the sections. Note, too, that the aforementioned clause in Section 133 seems to be inaccurately worded. Instead of the clause "unless otherwise provided herein," with the "herein" to mean, of course, the section, it should have used the clause "unless otherwise provided in this Code." The former results in absurdity since the section itself enumerates what are beyond the taxing powers of local government units and, where exceptions were intended, the exceptions are explicitly indicated in the next. For instance, in item (a) which excepts income taxes "when levied on banks and other financial institutions"; item (d) which excepts "wharfage on wharves constructed and maintained by the local government unit concerned"; and item (1) which excepts taxes,
fees and charges for the registration and issuance of licenses or permits for the driving of "tricycles." It may also be observed that within the body itself of the section, there are exceptions which can be found only in other parts of the LGC, but the section interchangeably uses therein the clause, "except as otherwise provided herein" as in items (c) and (i), or the clause "except as provided in this Code" in item (j). These clauses would be obviously unnecessary or mere surplusages if the opening clause of the section were "Unless otherwise provided in this Code" instead of "Unless otherwise provided herein." In any event, even if the latter is used, since under Section 232 local government units have the power to levy real property tax, except those exempted therefrom under Section 234, then Section 232 must be deemed to qualify Section 133. Thus, reading together Sections 133, 232, and 234 of the LGC, we conclude that as a general rule, as laid down in Section 133, the taxing powers of local government units cannot extend to the levy of,inter alia, "taxes, fees and charges of any kind on the National Government, its agencies and instrumentalities, and local government units"; however, pursuant to Section 232, provinces, cities, and municipalities in the Metropolitan Manila Area may impose the real property tax except on, inter alia, "real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person," as provided in item (a) of the first paragraph of Section 234. As to tax exemptions or incentives granted to or presently enjoyed by natural or judicial persons, including governmentowned and controlled corporations, Section 193 of the LGC prescribes the general rule, viz., they are withdrawn upon the effectivity of the LGC, except those granted to local water districts, cooperatives duly registered under R.A. No. 6938, nonstock and non-profit hospitals and educational institutions, and unless otherwise provided in the LGC. The latter proviso could refer to Section 234 which enumerates the properties exempt from real property tax. But the last paragraph of Section 234 further qualifies the retention of the exemption insofar as real property taxes are concerned by limiting the retention only to those enumerated therein; all others not included in the enumeration lost the privilege upon the effectivity of the LGC. Moreover, even as to real property owned by the Republic of the Philippines or any of its political subdivisions covered by item
(a) of the first paragraph of Section 234, the exemption is withdrawn if the beneficial use of such property has been granted to a taxable person for consideration or otherwise. Since the last paragraph of Section 234 unequivocally withdrew, upon the effectivity of the LGC, exemptions from payment of real property taxes granted to natural or juridical persons, including government-owned or controlled corporations, except as provided in the said section, and the petitioner is, undoubtedly, a government-owned corporation, it necessarily follows that its exemption from such tax granted it in Section 14 of its Charter, R.A. No. 6958, has been withdrawn. Any claim to the contrary can only be justified if the petitioner can seek refuge under any of the exceptions provided in Section 234, but not under Section 133, as it now asserts, since, as shown above, the said section is qualified by Sections 232 and 234.[20] (Emphasis supplied.)
This Court, in Mactan, acknowledged that under Section 133, instrumentalities were generally exempt from all forms of local government taxation, unless otherwise provided in the Code. On the other hand, Section 232 otherwise provides insofar as it allowed local government units to levy an ad valorem real property tax, irrespective of who owned the property. At the same time, the imposition of real property taxes under Section 232 is in turn qualified by the phrase not hereinafter specifically exempted. The exemptions from real property taxes are enumerated in Section 234, which specifically states that only real properties owned by the Republic of the Philippines or any of its political subdivisions are exempted from the payment of the tax. Clearly, instrumentalities or GOCCs do not fall within the exceptions under Section 234. Worth reckoning, however, is an essential difference between the situation of the MCIAA (and most other GOCCs, for that matter) and that of the GSIS. Unlike most other GOCCs, there is a statutory
provision Section 33 of P.D. No. 1146, as amendedwhich imposes conditions on the subsequent withdrawal of the GSISs tax exemptions. The RTC justified the affirmance of the tax exemptions based on the non-compliance by the Local Government Code with these conditionalities, and not by reason of a general proposition that GOCCs or instrumentalities remain exempt from local government taxation.
Absent Section 33 of P.D. No. 1146, as amended, there would be no impediment in squarely applying the express provisions of Sections 193, 232 and 234 of the Local Government Code, as the Court did in Mactan and recently in Philippine Rural Electric Cooperatives Association, Inc. et al. v. Secretary of Interior And Local Government, et al. [21] and in ruling that the tax exemptions of GSIS were withdrawn by the Code. Thus, the crucial proposition is whether the GSIS tax exemptions can be deemed as withdrawn by the Local Government Code notwithstanding Section 33 of P.D. No. 1146 as amended. Concededly, it does not appear that at the very least, the second conditionality of Section 33 has been met. No provision has been enacted to substitute the declared policy of exemption from any and all taxes as an essential factor for the solvency of the fund.[22] Yet the Court is averse to employing this framework, in the first place as utilized by the RTC, for we recognize a fundamental flaw in Section 33, particularly the amendatory second paragraph introduced by P.D. No. 1981.
The second paragraph of Section 33 of P.D. No. 1146, as amended, effectively imposes restrictions on the competency of the Congress to enact future legislation on the taxability of the GSIS. This places an undue restraint on the plenary power of the legislature to amend or repeal laws, especially considering that it is a lawmakers act that imposes such burden. Only the Constitution may operate to preclude or place restrictions on the amendment or repeal of laws. Constitutional dicta is of higher order than legislative statutes, and the latter should always yield to the former in cases of irreconcilable conflict. It is a basic precept that among the implied substantive limitations on the legislative powers is the prohibition against the passage of irrepealable laws.[23] Irrepealable laws deprive succeeding legislatures of the fundamental best senses carte blanche in crafting laws appropriate to the operative milieu. Their allowance promotes an unhealthy stasis in the legislative front and dissuades dynamic democratic impetus that may be responsive to the times. As Senior Associate Justice Reynato S. Puno once observed, [t]o be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change.[24] Moreover, it would be noxious anathema to democratic principles for a legislative body to have the ability to bind the actions of future legislative body, considering that both assemblies are regarded with equal footing, exercising as they do the same
plenary powers. Perpetual infallibility is not one of the attributes desired in a legislative body, and a legislature which attempts to forestall future amendments or repeals of its enactments labors under delusions of omniscience. It might be argued that Section 33 of P.D. No. 1146, as amended, does not preclude the repeal of the tax-exempt status of GSIS, but merely imposes conditions for such to validly occur. Yet these conditions, if honored, have the precise effect of limiting the powers of Congress. Thus, the same rationale for prohibiting irrepealable laws applies in prohibiting restraints on future amendatory laws. President Marcos, who exercised his legislative powers in amending P.D. No. 1146, could not have demanded obeisance from future legislators by imposing restrictions on their ability to legislate amendments or repeals. The concerns that may have militated his enactment of these restrictions need not necessarily be shared by subsequent Congresses. We do not mean to trivialize the need to ensure the solvency of the GSIS fund, a concern that has seen legislative expression, even with the most recently enacted Government Service Insurance System Act of 1997.[25] Yet at the same time, we recognize that Congress has the putative authority, through valid legislation, to diminish such fund, or even abolish the GSIS itself if it so desires. The GSIS may provide vital services and security to employees of the civil service, yet it is not a sacred cow that is beyond abolition by Congress if, for example, more innovative methods are devised to ensure stable pension funds for government employees. If Congress has the inherent power to abrogate the GSIS itself, then it necessarily has the ability to inflict less detrimental burdens, such
as abolishing its tax-exempt status. If there could be legal authority proscribing the Congress from enacting such legislation, such should be sourced from the Constitution itself, and not from antecedent statutes which were themselves enacted by legislative power.
The Courts position is aligned with entrenched norms of statutory construction. In Duarte v. Dade,[26] the Court cited with approval Lewis Southerland on Statutory Construction, which states:
A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes. (Emphasis supplied.)[27]
The citation is particularly apropos to our present task, since the question for resolution is primarily one of statutory construction, i.e., whether or not Section 33 of P.D. No. 1146 has been repealed by the Local Government Code. It is evident that we
cannot render effective Section 33
the
amendatory second paragraph of
as the RTC did, for by doing so, we would be giving sanction to a disingenuous means employed through legislative power to bind subsequent legislators to a particular mode of repeal. Thus, the two conditionalities of Section 33 cannot bear relevance on whether the Local Government Code removed the taxexempt status of the GSIS. The express withdrawal of all tax exemptions accorded to all persons, natural or juridical, as stated in Section 193 of the Local Government Code, applies without impediment to the present case. Such position is bolstered by the other cited provisions of the Local Government Code, and by the Mactan ruling. There are other reasons that guide us to construe the Local Government Code in favor of the City ofDavaos position. Section 5 of the Local Government Code provides the guidelines on how to construe the Codes provisions in cases of doubt, and they are selfexplanatory, thus:
Section 5. Rules of Interpretation. In the interpretation of the provisions of this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned; (b) In case of doubt, any tax ordinance or revenue measure shall be construed strictly against the local government unit enacting it, and liberally in favor of the taxpayer. Any tax exemption, incentive or relief granted by any local government unit pursuant to the provisions of this Code shall be construed strictly against the person claiming it; (Emphasis supplied.)
Also worthy of note is that the Constitution itself promotes the principles of local autonomy as embodied in the Local Government Code. The State is mandated to ensure the autonomy of local governments,[28] and local governments are empowered to levy taxes, fees and charges that accrue exclusively to them, subject to congressional guidelines and limitations.[29] The principle of local autonomy is no mere passing dalliance but a constitutionally enshrined precept that deserves respect and appropriate enforcement by this Court.
We are aware that this stance runs contrary to that which was adopted by the Secretary of Justice in his Opinion dated 22 July
1993, as well as the memorandum from the Office of the President dated 14 February 1995, expressing the same opinion. However, statutory interpretations of these executive bodies do not hold decisive sway upon the judiciary but are merely persuasive. These issuances cannot derogate from the binding precept that one legislature cannot enact irrepealable legislation or limit or restrict its own power or the power of its successors as to the repeal of statutes.[30] The act of one legislature is not binding upon and does not tie the hands of future legislatures.[31] The GSISs tax-exempt status, in sum, was withdrawn in 1992 by the Local Government Code but restored by the Government Service Insurance System Act of 1997, the operative provision of which is Section
39.[32] The subject real property taxes for the years 1992 to 1994 were assessed against GSIS while the Local Government Code provisions prevailed and, thus, may be collected by the City of Davao.
WHEREFORE, premises considered, the Petition for Review is hereby GRANTED. The appealedDecision of the Regional Trial Court of Davao City, Branch 12 is REVERSED and SET ASIDE. Costs de oficio. SO ORDERED.
GSIS vs City Treasurer of City of Manila
Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 186242 December 23, 2009
GOVERNMENT SERVICE INSURANCE SYSTEM, Petitioner, vs. CITY TREASURER and CITY ASSESSOR of the CITY OF MANILA, Respondents. DECISION VELASCO, JR., J.: The Case For review under Rule 45 of the Rules of Court on pure question of law are the November 15, 2007 Decision1 and January 7, 2009 Order2 of the Regional Trial Court (RTC), Branch 49 in Manila, in Civil Case No. 02-104827, a suit to nullify the assessment of real property taxes on certain properties belonging to petitioner Government Service Insurance System (GSIS). The Facts Petitioner GSIS owns or used to own two (2) parcels of land, one located at Katigbak 25th St., Bonifacio Drive, Manila (Katigbak property), and the other, at Concepcion cor. Arroceros Sts., also in Manila (Concepcion-Arroceros property). Title to the Concepcion-Arroceros property was transferred to this Court in 2005 pursuant to Proclamation No. 8353 dated April 27, 2005. Both the GSIS and the Metropolitan Trial Court (MeTC) of Manila occupy the Concepcion-Arroceros property, while the Katigbak property was under lease. The controversy started when the City Treasurer of Manila addressed a letter4 dated September 13, 2002 to GSIS President and General Manager Winston F. Garcia informing him of the unpaid real property taxes due on the aforementioned properties for years 1992 to 2002, broken down as follows: (a) PhP 54,826,599.37 for the Katigbak property; and (b) PhP 48,498,917.01 for the Concepcion-Arroceros property. The letter warned of the inclusion of the subject properties in the scheduled October 30, 2002 public auction of all delinquent properties in Manila should the unpaid taxes remain unsettled before that date. On September 16, 2002, the City Treasurer of Manila issued separate Notices of Realty Tax Delinquency5 for the subject properties, with the usual warning of seizure and/or sale. On October 8, 2002, GSIS, through its legal counsel, wrote back emphasizing the GSIS exemption from all kinds of taxes, including realty taxes, under Republic Act No. (RA) 8291.6 Two days after, GSIS filed a petition for certiorari and prohibition7 with prayer for a restraining and injunctive relief before the Manila RTC. In it, GSIS prayed for the nullification of the assessments thus made and that respondents City of Manila officials be permanently enjoined from proceedings against GSIS property. GSIS would later amend its petition8 to include the fact that: (a) the Katigbak property, covered by TCT Nos. 117685 and 119465 in the name of GSIS, has, since November

1991, been leased to and occupied by the Manila Hotel Corporation (MHC), which has contractually bound itself to pay any realty taxes that may be imposed on the subject property; and (b) the Concepcion-Arroceros property is partly occupied by GSIS and partly occupied by the MeTC of Manila. The Ruling of the RTC By Decision of November 15, 2007, the RTC dismissed GSIS petition, as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered, DISMISSING the petition for lack of merit, and declaring the assessment conducted by the respondents City of Manila on the subject real properties of GSIS as valid pursuant to law. SO ORDERED.9 GSIS sought but was denied reconsideration per the assailed Order dated January 7, 2009. Thus, the instant petition for review on pure question of law. The Issues 1. Whether petitioner is exempt from the payment of real property taxes from 1992 to 2002; 2. Whether petitioner is exempt from the payment of real property taxes on the property it leased to a taxable entity; and 3. Whether petitioners real properties are exempt from warrants of levy and from tax sale for non-payment of real property taxes.10 The Courts Ruling The issues raised may be formulated in the following wise: first, whether GSIS under its charter is exempt from real property taxation; second, assuming that it is so exempt, whether GSIS is liable for real property taxes for its properties leased to a taxable entity; and third, whether the properties of GSIS are exempt from levy. In the main, it is petitioners posture that both its old charter, Presidential Decree No. (PD) 1146, and present charter, RA 8291 or the GSIS Act of 1997, exempt the agency and its properties from all forms of taxes and assessments, inclusive of realty tax. Excepting, respondents counter that GSIS may not successfully resist the citys notices and warrants of levy on the basis of its exemption under RA 8291, real property taxation being governed by RA 7160 or the Local Government Code of 1991 (LGC, hereinafter). The petition is meritorious. First Core Issue: GSIS Exempt from Real Property Tax Full tax exemption granted through PD 1146

In 1936, Commonwealth Act No. (CA) 18611 was enacted abolishing the then pension systems under Act No. 1638, as amended, and establishing the GSIS to manage the pension system, life and retirement insurance, and other benefits of all government employees. Under what may be considered as its first charter, the GSIS was set up as a non-stock corporation managed by a board of trustees. Notably, Section 26 of CA 186 provided exemption from any legal process and liens but only for insurance policies and their proceeds, thus: Section 26. Exemption from legal process and liens. No policy of life insurance issued under this Act, or the proceeds thereof, when paid to any member thereunder, nor any other benefit granted under this Act, shall be liable to attachment, garnishment, or other process, or to be seized, taken, appropriated, or applied by any legal or equitable process or operation of law to pay any debt or liability of such member, or his beneficiary, or any other person who may have a right thereunder, either before or after payment; nor shall the proceeds thereof, when not made payable to a named beneficiary, constitute a part of the estate of the member for payment of his debt. x x x In 1977, PD 1146,12 otherwise known as the Revised Government Service Insurance Act of 1977, was issued, providing for an expanded insurance system for government employees. Sec. 33 of PD 1146 provided for a new tax treatment for GSIS, thus: Section 33. Exemption from Tax, Legal Process and Lien. It is hereby declared to be the policy of the State that the actuarial solvency of the funds of the System shall be preserved and maintained at all times and that the contribution rates necessary to sustain the benefits under this Act shall be kept as low as possible in order not to burden the members of the System and/or their employees. Taxes imposed on the System tend to impair the actuarial solvency of its funds and increase the contribution rate necessary to sustain the benefits under this Act. Accordingly, notwithstanding any laws to the contrary, the System, its assets, revenues including all accruals thereto, and benefits paid, shall be exempt from all taxes, assessments, fees, charges or duties of all kinds. These exemptions shall continue unless expressly and specifically revoked and any assessment against the System as of the approval of this Act are hereby considered paid. The benefits granted under this Act shall not be subject, among others, to attachment, garnishment, levy or other processes. This, however, shall not apply to obligations of the member to the System, or to the employer, or when the benefits granted herein are assigned by the member with the authority of the System. (Emphasis ours.) A scrutiny of PD 1146 reveals that the non-stock corporate structure of GSIS, as established under CA 186, remained unchanged. Sec. 3413 of PD 1146 pertinently provides that the GSIS, as created by CA 186, shall implement the provisions of PD 1146. RA 7160 lifted GSIS tax exemption Then came the enactment in 1991 of the LGC or RA 7160, providing the exercise of local government units (LGUs) of their power to tax, the scope and limitations thereof,14 and the exemptions from taxations. Of particular pertinence is the general provision on withdrawal of tax exemption privileges in Sec. 193 of the LGC, and the special provision on withdrawal of exemption from payment of real property taxes in the last paragraph of the succeeding Sec. 234, thus: SEC. 193. Withdrawal of Tax Exemption Privileges. Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned or -controlled corporations, except local water districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code.

SEC. 234. Exemption from Real Property Tax. x x x Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all persons, whether natural or juridical, including all government-owned or controlled corporation are hereby withdrawn upon the effectivity of this Code. From the foregoing provisos, there can be no serious doubt about the Congress intention to withdraw, subject to certain defined exceptions, tax exemptions granted prior to the passage of RA 7160. The question that easily comes to mind then is whether or not the full tax exemption heretofore granted to GSIS under PD 1146, particular insofar as realty tax is concerned, was deemed withdrawn. We answer in the affirmative. In Mactan Cebu International Airport Authority v. Marcos,[15] the Court held that the express withdrawal by the LGC of previously granted exemptions from realty taxes applied to instrumentalities and government-owned and controlled corporations (GOCCs), such as the MactanCebu International Airport Authority. In City of Davao v. RTC, Branch XII, Davao City,16 the Court, citing Mactan Cebu International Airport Authority, declared the GSIS liable for real property taxes for the years 1992 to 1994 (contested real estate tax assessment therein), its previous exemption under PD 1146 being considered withdrawn with the enactment of the LGC in 1991. Significantly, the Court, in City of Davao, stated the observation that the GSIS tax-exempt status withdrawn in 1992 by the LGC was restored in 1997 by RA 8291.17 Full tax exemption reenacted through RA 8291 Indeed, almost 20 years to the day after the issuance of the GSIS charter, i.e., PD 1146, it was further amended and expanded by RA 8291 which took effect on June 24, 1997.18 Under it, the full tax exemption privilege of GSIS was restored, the operative provision being Sec. 39 thereof, a virtual replication of the earlier quoted Sec. 33 of PD 1146. Sec. 39 of RA 8291 reads: SEC. 39. Exemption from Tax, Legal Process and Lien. It is hereby declared to be the policy of the State that the actuarial solvency of the funds of the GSIS shall be preserved and maintained at all times and that contribution rates necessary to sustain the benefits under this Act shall be kept as low as possible in order not to burden the members of the GSIS and their employers. Taxes imposed on the GSIS tend to impair the actuarial solvency of its funds and increase the contribution rate necessary to sustain the benefits of this Act. Accordingly, notwithstanding, any laws to the contrary, the GSIS, its assets, revenues including all accruals thereto, and benefits paid, shall be exempt from all taxes, assessments, fees, charges or duties of all kinds. These exemptions shall continue unless expressly and specifically revoked and any assessment against the GSIS as of the approval of this Act are hereby considered paid. Consequently, all laws, ordinances, regulations, issuances, opinions or jurisprudence contrary to or in derogation of this provision are hereby deemed repealed, superseded and rendered ineffective and without legal force and effect. Moreover, these exemptions shall not be affected by subsequent laws to the contrary unless this section is expressly, specifically and categorically revoked or repealed by law and a provision is enacted to substitute or replace the exemption referred to herein as an essential factor to maintain or protect the solvency of the fund, notwithstanding and independently of the guaranty of the national government to secure such solvency or liability. The funds and/or the properties referred to herein as well as the benefits, sums or monies corresponding to the benefits under this Act shall be exempt from attachment, garnishment, execution, levy or other processes issued by the courts, quasi-judicial agencies or

administrative bodies including Commission on Audit (COA) disallowances and from all financial obligations of the members, including his pecuniary accountability arising from or caused or occasioned by his exercise or performance of his official functions or duties, or incurred relative to or in connection with his position or work except when his monetary liability, contractual or otherwise, is in favor of the GSIS. (Emphasis ours.) The foregoing exempting proviso, couched as it were in an encompassing manner, brooks no other construction but that GSIS is exempt from all forms of taxes. While not determinative of this case, it is to be noted that prominently added in GSIS present charter is a paragraph precluding any implied repeal of the tax-exempt clause so as to protect the solvency of GSIS funds. Moreover, an express repeal by a subsequent law would not suffice to affect the full exemption benefits granted the GSIS, unless the following conditionalities are met: (1) The repealing clause must expressly, specifically, and categorically revoke or repeal Sec. 39; and (2) a provision is enacted to substitute or replace the exemption referred to herein as an essential factor to maintain or protect the solvency of the fund. These restrictions for a future express repeal, notwithstanding, do not make the proviso an irrepealable law, for such restrictions do not impinge or limit the carte blanche legislative authority of the legislature to so amend it. The restrictions merely enhance other provisos in the law ensuring the solvency of the GSIS fund.
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Given the foregoing perspectives, the following may be assumed: (1) Pursuant to Sec. 33 of PD 1146, GSIS enjoyed tax exemption from real estate taxes, among other tax burdens, until January 1, 1992 when the LGC took effect and withdrew exemptions from payment of real estate taxes privileges granted under PD 1146; (2) RA 8291 restored in 1997 the tax exempt status of GSIS by reenacting under its Sec. 39 what was once Sec. 33 of P.D. 1146;19 and (3) If any real estate tax is due to the City of Manila, it is, following City of Davao, only for the interim period, or from 1992 to 1996, to be precise. Real property taxes assessed and due from GSIS considered paid While recognizing the exempt status of GSIS owing to the reenactment of the full tax exemption clause under Sec. 39 of RA 8291 in 1997, the ponencia in City of Davao appeared to have failed to take stock of and fully appreciate the all-embracing condoning proviso in the very same Sec. 39 which, for all intents and purposes, considered as paid "any assessment against the GSIS as of the approval of this Act." If only to stress the point, we hereby reproduce the pertinent portion of said Sec. 39: SEC. 39. Exemption from Tax, Legal Process and Lien. x x x Taxes imposed on the GSIS tend to impair the actuarial solvency of its funds and increase the contribution rate necessary to sustain the benefits of this Act. Accordingly, notwithstanding, any laws to the contrary, the GSIS, its assets, revenues including all accruals thereto, and benefits paid, shall be exempt from all taxes, assessments, fees, charges or duties of all kinds. These exemptions shall continue unless expressly and specifically revoked and any assessment against the GSIS as of the approval of this Act are hereby considered paid. Consequently, all laws, ordinances, regulations, issuances, opinions or jurisprudence contrary to or in derogation of this provision are hereby deemed repealed, superseded and rendered ineffective and without legal force and effect. (Emphasis added.) GSIS an instrumentality of the National Government Apart from the foregoing consideration, the Courts fairly recent ruling in Manila International Airport Authority v. Court of Appeals,20 a case likewise involving real estate tax assessments by a Metro Manila city on the real properties administered by MIAA, argues for the non-tax liability of GSIS for real estate taxes. There, the Court held that MIAA does not qualify as a GOCC, not having been

organized either as a stock corporation, its capital not being divided into shares, or as a non-stock corporation because it has no members. MIAA is rather aninstrumentality of the National Government and, hence, outside the purview of local taxation by force of Sec. 133 of the LGC providing in context that "unless otherwise provided," local governments cannot tax national government instrumentalities. And as the Court pronounced in Manila International Airport Authority, the airport lands and buildings MIAA administers belong to the Republic of the Philippines, which makes MIAA a mere trustee of such assets. No less than the Administrative Code of 1987 recognizes a scenario where a piece of land owned by the Republic is titled in the name of a department, agency, or instrumentality. The following provision of the said Code suggests as much: Sec. 48. Official Authorized to Convey Real Property.Whenever real property of the Government is authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the government by the following: x x x x (2) For property belonging to the Republic of the Philippines, but titled in the name of x x x any corporate agency or instrumentality, by the executive head of the agency or instrumentality.21 While perhaps not of governing sway in all fours inasmuch as what were involved in Manila International Airport Authority, e.g., airfields and runways, are properties of the public dominion and, hence, outside the commerce of man, the rationale underpinning the disposition in that case is squarely applicable to GSIS, both MIAA and GSIS being similarly situated. First, while created under CA 186 as a non-stock corporation, a status that has remained unchanged even when it operated under PD 1146 and RA 8291, GSIS is not, in the context of the afore quoted Sec. 193 of the LGC, a GOCC following the teaching of Manila International Airport Authority, for, like MIAA, GSIS capital is not divided into unit shares. Also, GSIS has no members to speak of. And by members, the reference is to those who, under Sec. 87 of the Corporation Code, make up the non-stock corporation, and not to the compulsory members of the system who are government employees. Its management is entrusted to a Board of Trustees whose members are appointed by the President. Second, the subject properties under GSISs name are likewise owned by the Republic. The GSIS is but a mere trustee of the subject properties which have either been ceded to it by the Government or acquired for the enhancement of the system. This particular property arrangement is clearly shown by the fact that the disposal or conveyance of said subject properties are either done by or through the authority of the President of the Philippines. Specifically, in the case of the ConcepcionArroceros property, it was transferred, conveyed, and ceded to this Court on April 27, 2005 through a presidential proclamation, Proclamation No. 835. Pertinently, the text of the proclamation announces that the Concepcion-Arroceros property was earlier ceded to the GSIS on October 13, 1954 pursuant to Proclamation No. 78 for office purposes and had since been titled to GSIS which constructed an office building thereon. Thus, the transfer on April 27, 2005 of the ConcepcionArroceros property to this Court by the President through Proclamation No. 835. This illustrates the nature of the government ownership of the subject GSIS properties, as indubitably shown in the last clause of Presidential Proclamation No. 835: WHEREAS, by virtue of the Public Land Act (Commonwealth Act No. 141, as amended), Presidential Decree No. 1455, and the Administrative Code of 1987, the President is authorized to transfer any government property that is no longer needed by the agency to which it belongs to other branches or agencies of the government. (Emphasis ours.) Third, GSIS manages the funds for the life insurance, retirement, survivorship, and disability benefits of all government employees and their beneficiaries. This undertaking, to be sure, constitutes an essential and vital function which the government, through one of its agencies or instrumentalities, ought to perform if social security services to civil service employees are to be delivered with

reasonable dispatch. It is no wonder, therefore, that the Republic guarantees the fulfillment of the obligations of the GSIS to its members (government employees and their beneficiaries) when and as they become due. This guarantee was first formalized under Sec. 2422 of CA 186, then Sec. 823 of PD 1146, and finally in Sec. 824 of RA 8291. Second Core Issue: Beneficial Use Doctrine Applicable The foregoing notwithstanding, the leased Katigbak property shall be taxable pursuant to the "beneficial use" principle under Sec. 234(a) of the LGC. It is true that said Sec. 234(a), quoted below, exempts from real estate taxes real property owned by the Republic, unless the beneficial use of the property is, for consideration, transferred to a taxable person. SEC. 234. Exemptions from Real Property Tax. The following are exempted from payment of the real property tax: (a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when thebeneficial use thereof has been granted, for consideration or otherwise, to a taxable person. This exemption, however, must be read in relation with Sec. 133(o) of the LGC, which prohibits LGUs from imposing taxes or fees of any kind on the national government, its agencies, and instrumentalities: SEC. 133. Common Limitations on the Taxing Powers of Local Government Units. Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following: xxxx (o) Taxes, fees or charges of any kinds on the National Government, its agencies and instrumentalities, and local government units. (Emphasis supplied.) Thus read together, the provisions allow the Republic to grant the beneficial use of its property to an agency or instrumentality of the national government. Such grant does not necessarily result in the loss of the tax exemption. The tax exemption the property of the Republic or its instrumentality carries ceases only if, as stated in Sec. 234(a) of the LGC of 1991, "beneficial use thereof has been granted, for a consideration or otherwise, to a taxable person." GSIS, as a government instrumentality, is not a taxable juridical person under Sec. 133(o) of the LGC. GSIS, however, lost in a sense that status with respect to the Katigbak property when it contracted its beneficial use to MHC, doubtless a taxable person. Thus, the real estate tax assessment of PhP 54,826,599.37 covering 1992 to 2002 over the subject Katigbak property is valid insofar as said tax delinquency is concerned as assessed over said property. Taxable entity having beneficial use of leased property liable for real property taxes thereon The next query as to which between GSIS, as the owner of the Katigbak property, or MHC, as the lessee thereof, is liable to pay the accrued real estate tax, need not detain us long. MHC ought to pay.

As we declared in Testate Estate of Concordia T. Lim, "the unpaid tax attaches to the property and is chargeable against the taxable person who had actual or beneficial use and possession of it regardless of whether or not he is the owner." Of the same tenor is the Courts holding in the subsequent Manila Electric Company v. Barlis25 and later in Republic v. City of Kidapawan.26 Actual use refers to the purpose for which the property is principally or predominantly utilized by the person in possession thereof.27 Being in possession and having actual use of the Katigbak property since November 1991, MHC is liable for the realty taxes assessed over the Katigbak property from 1992 to 2002. The foregoing is not all. As it were, MHC has obligated itself under the GSIS-MHC Contract of Lease to shoulder such assessment. Stipulation l8 of the contract pertinently reads: 18. By law, the Lessor, [GSIS], is exempt from taxes, assessments and levies. Should there be any change in the law or the interpretation thereof or any other circumstances which would subject the Leased Property to any kind of tax, assessment or levy which would constitute a charge against the Lessor or create a lien against the Leased Property, the Lessee agrees and obligates itself to shoulder and pay such tax, assessment or levy as it becomes due.28 (Emphasis ours.) As a matter of law and contract, therefore, MHC stands liable to pay the realty taxes due on the Katigbak property. Considering, however, that MHC has not been impleaded in the instant case, the remedy of the City of Manila is to serve the realty tax assessment covering the subject Katigbak property to MHC and to pursue other available remedies in case of nonpayment, for said property cannot be levied upon as shall be explained below. Third Core Issue: GSIS Properties Exempt from Levy In light of the foregoing disquisition, the issue of the propriety of the threatened levy of subject properties by the City of Manila to answer for the demanded realty tax deficiency is now moot and academic. A valid tax levy presupposes a corresponding tax liability. Nonetheless, it will not be remiss to note that it is without doubt that the subject GSIS properties are exempt from any attachment, garnishment, execution, levy, or other legal processes. This is the clear import of the third paragraph of Sec. 39, RA 8291, which we quote anew for clarity: SEC. 39. Exemption from Tax, Legal Process and Lien. x x x. xxxx The funds and/or the properties referred to herein as well as the benefits, sums or monies corresponding to the benefits under this Act shall be exempt from attachment, garnishment, execution, levy or other processes issued by the courts, quasi-judicial agencies or administrative bodies including Commission on Audit (COA) disallowances and from all financial obligations of the members, including his pecuniary accountability arising from or caused or occasioned by his exercise or performance of his official functions or duties, or incurred relative to or in connection with his position or work except when his monetary liability, contractual or otherwise, is in favor of the GSIS. (Emphasis ours.) The Court would not be indulging in pure speculative exercise to say that the underlying legislative intent behind the above exempting proviso cannot be other than to isolate GSIS funds and properties from legal processes that will either impair the solvency of its fund or hamper its operation that would ultimately require an increase in the contribution rate necessary to sustain the benefits of the system. Throughout GSIS life under three different charters, the need to ensure the solvency of

GSIS fund has always been a legislative concern, a concern expressed in the tax-exempting provisions. Thus, even granting arguendo that GSIS liability for realty taxes attached from 1992, when RA 7160 effectively lifted its tax exemption under PD 1146, to 1996, when RA 8291 restored the tax incentive, the levy on the subject properties to answer for the assessed realty tax delinquencies cannot still be sustained. The simple reason: The governing law, RA 8291, in force at the time of the levy prohibits it. And in the final analysis, the proscription against the levy extends to the leased Katigbak property, the beneficial use doctrine, notwithstanding. Summary In sum, the Court finds that GSIS enjoys under its charter full tax exemption. Moreover, as an instrumentality of the national government, it is itself not liable to pay real estate taxes assessed by the City of Manila against its Katigbak and Concepcion-Arroceros properties. Following the "beneficial use" rule, however, accrued real property taxes are due from the Katigbak property, leased as it is to a taxable entity. But the corresponding liability for the payment thereof devolves on the taxable beneficial user. The Katigbak property cannot in any event be subject of a public auction sale, notwithstanding its realty tax delinquency. This means that the City of Manila has to satisfy its tax claim by serving the accrued realty tax assessment on MHC, as the taxable beneficial user of the Katigbak property and, in case of nonpayment, through means other than the sale at public auction of the leased property. WHEREFORE, the instant petition is hereby GRANTED. The November 15, 2007 Decision and January 7, 2009 Order of the Regional Trial Court, Branch 49, Manila are REVERSED and SET ASIDE. Accordingly, the real property tax assessments issued by the City of Manila to the Government Service Insurance System on the subject properties are declared VOID, except that the real property tax assessment pertaining to the leased Katigbak property shall be valid if served on the Manila Hotel Corporation, as lessee which has actual and beneficial use thereof. The City of Manila is permanently restrained from levying on or selling at public auction the subject properties to satisfy the payment of the real property tax delinquency. No pronouncement as to costs. SO ORDERED.
Social Justice Society vs Dangerous Drugs Board
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 157870 November 3, 2008
SOCIAL JUSTICE SOCIETY (SJS), petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA),respondents. x-----------------------------------------------x G.R. No. 158633 November 3, 2008
ATTY. MANUEL J. LASERNA, JR., petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents. x-----------------------------------------------x G.R. No. 161658 November 3, 2008
AQUILINO Q. PIMENTEL, JR., petitioner vs. COMMISSION ON ELECTIONS, respondents. DECISION VELASCO, JR., J.: In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue. As far as pertinent, the challenged section reads as follows:
SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing: xxxx (c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x; (d) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; xxxx (f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test; (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections) On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory
drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows: WHEREAS, Section 36 (g) of Republic Act No. 9165 provides: SEC. 36. Authorized Drug Testing. - x x x xxxx (g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test. WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency; WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x. NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:] SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health. SEC. 3. x x x On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the
mandatory drug test while the second list shall consist of those candidates who failed to comply x x x. SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.) Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May 10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486. Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states: SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines, and, on the day of the election, is at least thirty - five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions. G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self - incrimination, and for being contrary to the due process and equal protection guarantees. The Issue on Locus Standi First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.2 It is basic that the power of judicial review can only be exercised in connection with a bona fidecontroversy which involves the statute sought to be reviewed.3 But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it.4 To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.5
The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest.6 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165. The Consolidated Issues The principal issues before us are as follows: (1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power? Pimentel Petition (Constitutionality of Sec. 36[g] of RA 9165 and COMELEC Resolution No. 6486) In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate,7 or alter or enlarge the Constitution.
Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.8 In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.9 Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise: Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap.10 Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights12 and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators. In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.13 Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec.
36(g) unmistakably requires a candidate for senator to be certified illegal drug clean, obviously as a pre - condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug - free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non - compliance with the drug - testing requirement. It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug - testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever. While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance. It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator. SJS Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti - drug abuse policies, programs and projects."14 The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point: Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x. xxxx Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: xxxx School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.15
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state - decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases involving the constitutionality of governmental search. In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment19 of the US Constitution. The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non - athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth20 and 14th Amendments and declared the random drug - testing policy constitutional. In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra curricular activities. Lindsay Earls, a member of the show choir, marching
band, and academic team declined to undergo a drug test and averred that the drug - testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non - athletes are entitled to more privacy. The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non - athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug - testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage. In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well - being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory. Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well - being of the people,21 particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's
schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact that the effects of a drug - infested school are visited not just upon the users, but upon the entire student body and faculty.22Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students. Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,"23 has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.24Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration: The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.25 The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.28Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power.29 As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a
government search or intrusion.30 And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug - testing policy for employees--and students for that matter--under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated inOple v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"?32 The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the
company's work rules and regulations x x x for purposes of reducing the risk in the work place." For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.33 In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;34 that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results."35Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.36 To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds
that the chosen method is a reasonable and enough means to lick the problem. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well - defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.37 And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.38 Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established. Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools
and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted. The validity of delegating legislative power is now a quiet area in the constitutional landscape.39 In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.40 To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution.
Worse still, the accused persons are veritably forced to incriminate themselves. WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g)of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs. SO ORDERED.
Limkaichong vs Comelec
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 178831-32 July 30, 2009
JOCELYN SY LIMKAICHONG, Petitioner, vs. COMMISSION ON ELECTIONS, NAPOLEON N. CAMERO and RENALD F. VILLANDO, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179120 July 30, 2009
LOUIS C. BIRAOGO, Petitioner, vs. HON. PROSPERO NOGRALES, Speaker of the House of Representatives of the Congress of the Philippines, and JOCELYN SY LIMKAICHONG, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. Nos. 179132-33 July 30, 2009
OLIVIA P. PARAS, Petitioner, vs. HON. PROSPERO NOGRALES, in his capacity as Speaker of the House of Representatives; HON. ROBERTO NAZARENO, in his capacity as Secretary General of the House of Representatives; HON. RHODORA SEVILLA, in her capacity as Deputy Secretary General for Finance of the House of Representatives; THE COMMISSION ON ELECTIONS and JOCELYN SY LIMKAICHONG, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. Nos. 179240-41 July 30, 2009
RENALD F. VILLANDO, Petitioner, vs. COMMISSION ON ELECTIONS and JOCELYN SY LIMKAICHONG, Respondents. RESOLUTION PERALTA, J.: The instant motion with prayer for oral argument filed by Louis C. Biraogo, petitioner in G.R. No. 179120, seeks a reconsideration of the Courts April 1, 2009 Decision, which granted Jocelyn D. Sy Limkaichongs petition forcertiorari in G.R. Nos. 178831-32. The Court dismissed all the other petitions, including Biraogos petition, and reversed the Joint Resolution of the Commission on
Elections (COMELEC) Second Division dated May 17, 2007 in SPA Nos. 07-247 and 07-248 disqualifying Limkaichong from running as a congressional candidate in the First District of Negros Oriental due to lack of citizenship requirement. Biraogo prefaced his motion by stating that justice and constitutionalism must remain entrenched in Philippine case law. To achieve this end, he maintained that the Court should reconsider its April 1, 2009 Decision. He also prayed for an oral argument, which he posited, would help the Court in the just and proper disposition of the pending incident. After an assiduous review of the motion for reconsideration, we resolve that the same should be denied for lack of merit. Most of the arguments advanced by Biraogo are a mere rehash of his previous arguments, which we have all considered and found without merit in the Decision dated April 1, 2009. Nonetheless, in order to lay to rest once and for all Biraogo's misgivings, we shall discuss only the relevant issues and revalidate our Decision by ruling on his motion as follows: The core issue in the consolidated petitions is the qualification of Limkaichong to run for, be elected to, and assume and discharge, the position of Representative for the First District of Negros Oriental. The contention of the parties who sought her disqualification is that she is not a natural-born citizen, hence, she lacks the citizenship requirement in Section 6,1 Article VI of the 1987 Constitution. In the election that ensued, she was voted for by the constituents of Negros Oriental and garnered the highest votes. She was eventually proclaimed as the winner and has since performed her duties and responsibilities as Member of the House of Representatives. Indeed, the citizenship requirement was enshrined in our Constitution in order to ensure that our people and country do not end up being governed by aliens.2 With this principle in mind, we have said in Aquino v. COMELEC3 that if one of the essential qualifications for running for membership in the House of Representatives is lacking, then not even the will of a majority or plurality of the voters would substitute for a requirement mandated by the fundamental law itself. Hence assuming, time constraints notwithstanding, and after proper proceedings before the proper tribunal be had, that Limkaichong would prove to be an alien, the court of justice would tilt against her favor and would not sanction such an imperfection in her qualification to hold office. But, first things first. The proponents against Limkaichong's qualification stated that she is not a natural-born citizen because her parents were Chinese citizens at the time of her birth. They went on to claim that the proceedings for the naturalization of Julio Ong Sy, her father, never attained finality due to procedural and substantial defects. In our Decision, We held that: However, in assailing the citizenship of the father, the proper proceeding should be in accordance with Section 18 of Commonwealth Act No. 473 which provides that: Sec. 18. Cancellation of Naturalization Certificate Issued. - Upon motion made in the proper proceedings by the Solicitor General or his representative, or by the proper provincial fiscal, the competent judge may cancel the naturalization certificate issued and its registration in the Civil Register: 1. If it is shown that said naturalization certificate was obtained fraudulently or illegally;
2. If the person naturalized shall, within five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence there: Provided, That the fact of the person naturalized remaining more than one year in his native country or the country of his former nationality, or two years in any other foreign country, shall be considered asprima facie evidence of his intention of taking up his permanent residence in the same: 3. If the petition was made on an invalid declaration of intention; 4. If it is shown that the minor children of the person naturalized failed to graduate from a public or private high school recognized by the Office of Private Education [now Bureau of Private Schools] of the Philippines, where Philippine history, government or civics are taught as part of the school curriculum, through the fault of their parents either by neglecting to support them or by transferring them to another school or schools. A certified copy of the decree canceling the naturalization certificate shall be forwarded by the Clerk of Court of the Department of Interior [now Office of the President] and the Bureau of Justice [now Office of the Solicitor General]; 5. If it is shown that the naturalized citizen has allowed himself to be used as a dummy in violation of the constitutional or legal provisions requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise or privilege. (Emphasis supplied) As early as the case of Queto v. Catolico, where the Court of First Instance judge motu propio and not in the proper denaturalization proceedings called to court various grantees of certificates of naturalization (who had already taken their oaths of allegiance) and cancelled their certificates of naturalization due to procedural infirmities, the Court held that: x x x It may be true that, as alleged by said respondents, that the proceedings for naturalization were tainted with certain infirmities, fatal or otherwise, but that is beside the point in this case. The jurisdiction of the court to inquire into and rule upon such infirmities must be properly invoked in accordance with the procedure laid down by law. Such procedure is the cancellation of the naturalization certificate. [Section 1(5), Commonwealth Act No. 63], in the manner fixed in Section 18 of Commonwealth Act No. 473, hereinbefore quoted, namely, "upon motion made in the proper proceedings by the Solicitor General or his representatives, or by the proper provincial fiscal." In other words, the initiative must come from these officers, presumably after previous investigation in each particular case. (Emphasis supplied) Clearly, under law and jurisprudence, it is the State, through its representatives designated by statute, that may question the illegally or invalidly procured certificate of naturalization in the appropriate denaturalization proceedings. It is plainly not a matter that may be raised by private persons in an election case involving the naturalized citizens descendant. Accordingly, it is not enough that one's qualification, or lack of it, to hold an office requiring one to be a natural-born citizen, be attacked and questioned before any tribunal or government institution. Proper proceedings must be strictly followed by the proper officers under the law. Hence, in seeking Limkaichong's disqualification on account of her citizenship, the rudiments of fair play and due process must be observed, for in doing so, she is not only deprived of the right to hold office as a Member of the House of Representative but her constituents would also be deprived of a leader in whom they have put their trust on through their votes. The obvious rationale behind the foregoing ruling is that in voting for a candidate who has not been disqualified by final judgment during the election day, the people voted for her bona fide, without any intention to misapply their franchise,
and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government.4
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These precepts, notwithstanding, Biraogo remained firm in his belief that this Court erred in its Decision and that the COMELEC Joint Resolution dated May 17, 2007 disqualifying Limkaichong should have been affirmed. He even went to a great extent of giving a dichotomy of the said Joint Resolution by stating that it was composed of two parts, the first part of which is the substantive part, and the second, pertains to the injunctive part. For this purpose, the dispositive portion of the said COMELEC Joint Resolution is reproduced below: WHEREFORE, the Petitions are GRANTED and Jocelyn D. Sy-Limkaichong is declared as DISQUALIFIED from her candidacy for Representative of the First District of Negros Oriental. The Provincial Supervisor of the Commission on Elections of Negros Oriental is hereby directed to strike out the name JOCELYN SY-LIMKAICHONG from the list of eligible candidates for the said position, and the concerned Board of Canvassers is hereby directed to hold and/or suspend the proclamation of JOCELYN SY-LIMKAICHONG as winning candidate, if any, until this decision has become final. SO ORDERED.5 Biraogo maintained that the Motion for Reconsideration filed by Limkaichong suspended only the execution of the substantive relief or the first part of the above-quoted COMELEC Joint Resolution. However, it did not suspend the execution of the injunctive part and, accordingly, the Provincial Supervisor of the COMELEC should not have proceeded with Limkaichong's proclamation as the winning candidate in the elections. His argument has no leg to stand on. We cannot take a decision or resolution on a piece-meal basis and apply only that part which is seemingly beneficial to one's cause and discard the prejudicial part which, obviously, would just be a hindrance in advancing one's stance or interests. Besides, the COMELEC Joint Resolution which Biraogo dichotomized was effectively suspended when Limkaichong timely filed her Motion for Reconsideration pursuant to Section 13(c),6 Rule 18 and Section 2,7 Rule 19 of the COMELEC Rules of Procedure. Hence, it cannot as yet be implemented for not having attained its finality. Nevertheless, events have already transpired after the COMELEC has rendered its Joint Resolution. Limkaichong was proclaimed by the Provincial Board of Canvassers, she had taken her oath of office, and she was allowed to officially assume the office on July 23, 2007. Accordingly, we ruled in our April 1, 2009 Decision that the House of Representatives Electoral Tribunal (HRET), and no longer the COMELEC, should now assume jurisdiction over the disqualification cases. Pertinently, we held: x x x The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, andassumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins.8 It follows then that the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation. The party questioning his qualification should now present his case in a proper proceeding before the HRET, the constitutionally mandated tribunal to hear and decide a case involving a Member of the House of Representatives with respect to the latter's election, returns and qualifications. The use of the word "sole" in Section 17, Article VI of the Constitution and in Section
2509 of the OEC underscores the exclusivity of the Electoral Tribunals' jurisdiction over election contests relating to its members.10 Section 17, Article VI of the 1987 Constitution provides: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. xxxx Petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41) steadfastly maintained that Limkaichongs proclamation was tainted with irregularity, which will effectively prevent the HRET from acquiring jurisdiction. The fact that the proclamation of the winning candidate, as in this case, was alleged to have been tainted with irregularity does not divest the HRET of its jurisdiction.11 The Court has shed light on this in the case of Vinzons-Chato,12 to the effect that: In the present case, it is not disputed that respondent Unico has already been proclaimed and taken his oath of office as a Member of the House of Representatives (Thirteenth Congress); hence, the COMELEC correctly ruled that it had already lost jurisdiction over petitioner Chato's petition. The issues raised by petitioner Chato essentially relate to the canvassing of returns and alleged invalidity of respondent Unico's proclamation. These are matters that are best addressed to the sound judgment and discretion of the HRET. Significantly, the allegation that respondent Unico's proclamation is null and void does not divest the HRET of its jurisdiction: x x x [I]n an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as congressman is raised, that issue is best addressed to the HRET. The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the people's mandate. Further, for the Court to take cognizance of petitioner Chato's election protest against respondent Unico would be to usurp the constitutionally mandated functions of the HRET. In fine, any allegations as to the invalidity of the proclamation will not prevent the HRET from assuming jurisdiction over all matters essential to a members qualification to sit in the House of Representatives. The 1998 HRET Rules, as amended, provide for the manner of filing either an election protest or a petition for quo warranto against a Member of the House of Representatives. In our Decision, we ruled that the ten-day prescriptive period under the 1998 HRET Rules does not apply to disqualification based on citizenship, because qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged.13 Accordingly, the 1987 Constitution requires that Members of the
House of Representatives must be natural-born citizens not only at the time of their election but during their entire tenure. Being a continuing requirement, one who assails a member's citizenship or lack of it may still question the same at any time, the ten-day prescriptive period notwithstanding.
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In fine, we hold that Biraogo had not successfully convinced us to reconsider our Decision and grant his motion for reconsideration. In a last-ditched attempt to muddle the issues, Biraogo observed that the Decision dated April 1, 2009 is a complete turn-around from the ruling embodied in the Decision written by Justice Ruben T. Reyes which, although unpromulgated, was nonetheless signed by fourteen (14) Associate Justices and approved by the Court en banc on July 15, 2008. He decried the absence of an explanation in the Decision dated April 1, 2009 for the said departure or turn-around. Such a position deserves scant consideration. The Court in Belac v. Commision on Elections,14 held that a decision must not only be signed by the Justices who took part in the deliberation, but must also be promulgated to be considered a Decision, to wit: [A] true decision of the Court is the decision signed by the Justices and duly promulgated. Before that decision is so signed and promulgated, there is no decision of the Court to speak of. The vote cast by a member of the Court after the deliberation is always understood to be subject to confirmation at the time he has to sign the decision that is to be promulgated. The vote is of no value if it is not thus confirmed by the Justice casting it. The purpose of this practice is apparent. Members of this Court, even after they have cast their votes, wish to preserve their freedom of action till the last moment when they have to sign the decision, so that they may take full advantage of what they may believe to be the best fruit of their most mature reflection and deliberation. In consonance with this practice, before a decision is signed and promulgated, all opinions and conclusions stated during and after the deliberation of the Court, remain in the breasts of the Justices, binding upon no one, not even upon the Justices themselves. Of course, they may serve for determining what the opinion of the majority provisionally is and for designating a member to prepare the decision of the Court, but inno way is that decision binding unless and until signed and promulgated. We add that at any time before promulgation, the ponencia may be changed by the ponente. Indeed, if any member of the court who may have already signed it so desires, he may still withdraw his concurrence and register a qualification or dissent as long as the decision has not yet been promulgated. A promulgation signifies that on the date it was made the judge or judges who signed the decision continued to support it. Thus, an unpromulgated decision is no decision at all. At the very least, they are part of the confidential internal deliberations of the Court which must not be released to the public. A decision becomes binding only after it is validly promulgated.15 Until such operative act occurs, there is really no decision to speak of, even if some or all of the Justices have already affixed their signatures thereto. During the intervening period from the time of signing until the promulgation of the decision, any one who took part in the deliberation and had signed the decision may, for a reason, validly withdraw one's vote, thereby preserving one's freedom of action. In sum, we hold that Biraogos Motion for Reconsideration with Prayer for Oral Argument must be denied. This Court did not err in ruling that the proper remedy of those who may assail Limkaichong's disqualification based on citizenship is to file before the HRET the proper petition at any time during her incumbency.
WHEREFORE, the Motion for Reconsideration with Prayer for Oral Argument filed by petitioner Louis C. Biraogo in G.R. No. 179120 is DENIED with FINALITY. SO ORDERED.
Aquino III vs Comelec
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189793 April 7, 2010
SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE ROBREDO, Petitioners, vs. COMMISSION ON ELECTIONS represented by its Chairman JOSE A.R. MELO and its Commissioners, RENE V. SARMIENTO, NICODEMO T. FERRER, LUCENITO N. TAGLE, ARMANDO VELASCO, ELIAS R. YUSOPH AND GREGORIO LARRAZABAL, Respondents. DECISION PEREZ, J.: This case comes before this Court by way of a Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court. In this original action, petitioners Senator Benigno Simeon C. Aquino III and Mayor Jesse Robredo, as public officers, taxpayers and citizens, seek the nullification as unconstitutional of Republic Act No. 9716, entitled "An Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur and Thereby Creating a New Legislative District From Such Reapportionment." Petitioners consequently pray that the respondent Commission on Elections be restrained from making any issuances and from taking any steps relative to the implementation of Republic Act No. 9716. Republic Act No. 9716 originated from House Bill No. 4264, and was signed into law by President Gloria Macapagal Arroyo on 12 October 2009. It took effect on 31 October 2009, or fifteen (15) days following its publication in the Manila Standard, a newspaper of general circulation.1 In substance, the said law created an additional legislative district for the Province of Camarines Sur by reconfiguring the existing first and second legislative districts of the province. Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to have a population of 1,693,821,2distributed among four (4) legislative districts in this wise: District Municipalities/Cities Libmanan Minalabac Pamplona Pasacao San Fernando Canaman Camaligan Magarao Bombon Calabanga Sangay Population 417,304
1st District Del Gallego Ragay Lupi Sipocot Cabusao 2nd District Gainza Milaor Naga Pili Ocampo 3rd District Caramoan
474,899
372,548

Garchitorena Goa Lagonoy Presentacion 4th District Iriga Baao Balatan Bato San Jose Tigaon Tinamba Siruma Buhi Bula Nabua 429,070
Following the enactment of Republic Act No. 9716, the first and second districts of Camarines Sur were reconfigured in order to create an additional legislative district for the province. Hence, the first district municipalities of Libmanan, Minalabac, Pamplona, Pasacao, and San Fernando were combined with the second district municipalities of Milaor and Gainza to form a new second legislative district. The following table3 illustrates the reapportionment made by Republic Act No. 9716: District 1st District Municipalities/Cities Del Gallego Ragay Lupi Sipocot Cabusao Libmanan Minalabac Pamplona Pasacao San Fernando Gainza Milaor Camaligan Magarao Bombon Calabanga Sangay San Jose Tigaon Tinamba Siruma Buhi Bula Nabua Population 176,383
2nd District
276,777
3rd District (formerly 2nd District) Naga Pili Ocampo Canaman 4th District (formerly 3rd District) Caramoan Garchitorena Goa Lagonoy Presentacion 5th District (formerly 4th District) Iriga Baao Balatan Bato
439,043
372,548
429,070
Republic Act No. 9716 is a well-milled legislation. The factual recitals by both parties of the origins of the bill that became the law show that, from the filing of House Bill No. 4264 until its approval by the Senate on a vote of thirteen (13) in favor and two (2) against, the process progressed step by step, marked by public hearings on the sentiments and position of the local officials of Camarines Sur on the creation of a new congressional district, as well as argumentation and debate on the issue, now before us, concerning the stand of the oppositors of the bill that a population of at least 250,000 is required by the Constitution for such new district.4

Petitioner Aquino III was one of two senators who voted against the approval of the Bill by the Senate. His co-petitioner, Robredo, is the Mayor of Naga City, which was a part of the former second district from which the municipalities of Gainza and Milaor were taken for inclusion in the new second district. No other local executive joined the two; neither did the representatives of the former third and fourth districts of the province. Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs afoul of the explicit constitutional standard that requires a minimum population of two hundred fifty thousand (250,000) for the creation of a legislative district.5 The petitioners claim that the reconfiguration by Republic Act No. 9716 of the first and second districts of Camarines Sur is unconstitutional, because the proposed first district will end up with a population of less than 250,000 or only 176,383. Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the cited 250,000 minimum population standard.6 The provision reads: Article VI Section 5. (1) x x x x (2) x x x x (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory.Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (4) x x x x (Emphasis supplied). The petitioners posit that the 250,000 figure appearing in the above-cited provision is the minimum population requirement for the creation of a legislative district.7 The petitioners theorize that, save in the case of a newly created province, each legislative district created by Congress must be supported by a minimum population of at least 250,000 in order to be valid.8 Under this view, existing legislative districts may be reapportioned and severed to form new districts, provided each resulting district will represent a population of at least 250,000. On the other hand, if the reapportionment would result in the creation of a legislative seat representing a populace of less than 250,000 inhabitants, the reapportionment must be stricken down as invalid for non-compliance with the minimum population requirement. In support of their theory, the petitioners point to what they claim is the intent of the framers of the 1987 Constitution to adopt a population minimum of 250,000 in the creation of additional legislative seats.9 The petitioners argue that when the Constitutional Commission fixed the original number of district seats in the House of Representatives to two hundred (200), they took into account the projected national population of fifty five million (55,000,000) for the year 1986.10 According to the petitioners, 55 million people represented by 200 district representatives translates to roughly 250,000 people for every one (1) representative.11 Thus, the 250,000 population requirement found in Section 5(3), Article VI of the 1987 Constitution is actually based on the population constant used by the Constitutional Commission in distributing the initial 200 legislative seats. Thus did the petitioners claim that in reapportioning legislative districts independently from the creation of a province, Congress is bound to observe a 250,000 population threshold, in the same manner that the Constitutional Commission did in the original apportionment.

Verbatim, the submission is that: 1. Republic Act 9716 is unconstitutional because the newly apportioned first district of Camarines Sur failed to meet the population requirement for the creation of the legislative district as explicitly provided in Article VI, Section 5, Paragraphs (1) and (3) of the Constitution and Section 3 of the Ordinance appended thereto; and 2. Republic Act 9716 violates the principle of proportional representation as provided in Article VI, Section 5 paragraphs (1), (3) and (4) of the Constitution.12 The provision subject of this case states: Article VI Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional and sectoral parties or organizations. (2) x x x x (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. On the other hand, the respondents, through the Office of the Solicitor General, seek the dismissal of the present petition based on procedural and substantive grounds. On procedural matters, the respondents argue that the petitioners are guilty of two (2) fatal technical defects: first, petitioners committed an error in choosing to assail the constitutionality of Republic Act No. 9716 via the remedy of Certiorari and Prohibition under Rule 65 of the Rules of Court; and second, the petitioners have no locus standi to question the constitutionality of Republic Act No. 9716. On substantive matters, the respondents call attention to an apparent distinction between cities and provinces drawn by Section 5(3), Article VI of the 1987 Constitution. The respondents concede the existence of a 250,000 population condition, but argue that a plain and simple reading of the questioned provision will show that the same has no application with respect to the creation of legislative districts in provinces.13 Rather, the 250,000 minimum population is only a requirement for the creation of a legislative district in a city. In sum, the respondents deny the existence of a fixed population requirement for the reapportionment of districts in provinces. Therefore, Republic Act No. 9716, which only creates an additional legislative district within the province of Camarines Sur, should be sustained as a perfectly valid reapportionment law.

We first pass upon the threshold issues. The respondents assert that by choosing to avail themselves of the remedies of Certiorari and Prohibition, the petitioners have committed a fatal procedural lapse. The respondents cite the following reasons: 1. The instant petition is bereft of any allegation that the respondents had acted without or in excess of jurisdiction, or with grave abuse of discretion.
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2. The remedy of Certiorari and Prohibition must be directed against a tribunal, board, officer or person, whether exercising judicial, quasi-judicial, or ministerial functions. Respondents maintain that in implementing Republic Act No. 9716, they were not acting as a judicial or quasi-judicial body, nor were they engaging in the performance of a ministerial act. 3. The petitioners could have availed themselves of another plain, speedy and adequate remedy in the ordinary course of law. Considering that the main thrust of the instant petition is the declaration of unconstitutionality of Republic Act No. 9716, the same could have been ventilated through a petition for declaratory relief, over which the Supreme Court has only appellate, not original jurisdiction. The respondents likewise allege that the petitioners had failed to show that they had sustained, or is in danger of sustaining any substantial injury as a result of the implementation of Republic Act No. 9716. The respondents, therefore, conclude that the petitioners lack the required legal standing to question the constitutionality of Republic Act No. 9716. This Court has paved the way away from procedural debates when confronted with issues that, by reason of constitutional importance, need a direct focus of the arguments on their content and substance. The Supreme Court has, on more than one occasion, tempered the application of procedural rules,14 as well as relaxed the requirement of locus standi whenever confronted with an important issue of overreaching significance to society.15 Hence, in Del Mar v. Philippine Amusement and Gaming Corporation (PAGCOR)16 and Jaworski v. PAGCOR,17this Court sanctioned momentary deviation from the principle of the hierarchy of courts, and took original cognizance of cases raising issues of paramount public importance. The Jaworski case ratiocinates: Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental importance of the issues involved in this case warrants that we set aside the technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the issues raised herein have potentially pervasive influence on the social and moral well being of this nation, specially the youth; hence, their proper and just determination is an imperative need. This is in accordance with the well-entrenched principle that rules of procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate, rather than promote substantial justice, must always be eschewed. (Emphasis supplied) Anent the locus standi requirement, this Court has already uniformly ruled in Kilosbayan v. Guingona,18 Tatad v. Executive Secretary,19 Chavez v. Public Estates Authority20 and Bagong Alyansang Makabayan v. Zamora,21 just to name a few, that absence of direct injury on the part of the party seeking judicial review may be excused when the latter is able to craft an issue of

transcendental importance. In Lim v. Executive Secretary,22 this Court held that in cases of transcendental importance, the cases must be settled promptly and definitely, and so, the standing requirements may be relaxed. This liberal stance has been echoed in the more recent decision on Chavez v. Gonzales.23 Given the weight of the issue raised in the instant petition, the foregoing principles must apply. The beaten path must be taken. We go directly to the determination of whether or not a population of 250,000 is an indispensable constitutional requirement for the creation of a new legislative district in a province. We deny the petition. We start with the basics. Any law duly enacted by Congress carries with it the presumption of constitutionality.24Before a law may be declared unconstitutional by this Court, there must be a clear showing that a specific provision of the fundamental law has been violated or transgressed. When there is neither a violation of a specific provision of the Constitution nor any proof showing that there is such a violation, the presumption of constitutionality will prevail and the law must be upheld. To doubt is to sustain.25 There is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose a legislative district. As already mentioned, the petitioners rely on the second sentence of Section 5(3), Article VI of the 1987 Constitution, coupled with what they perceive to be the intent of the framers of the Constitution to adopt a minimum population of 250,000 for each legislative district. The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides: "Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative." The provision draws a plain and clear distinction between the entitlement of a city to a district on one hand, and the entitlement of a province to a district on the other. For while a province is entitled to at least a representative, with nothing mentioned about population, a city must first meet a population minimum of 250,000 in order to be similarly entitled. The use by the subject provision of a comma to separate the phrase "each city with a population of at least two hundred fifty thousand" from the phrase "or each province" point to no other conclusion than that the 250,000 minimum population is only required for a city, but not for a province. 26 Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum population only for a city to be entitled to a representative, but not so for a province. The 250,000 minimum population requirement for legislative districts in cities was, in turn, the subject of interpretation by this Court in Mariano, Jr. v. COMELEC.27 In Mariano, the issue presented was the constitutionality of Republic Act No. 7854, which was the law that converted the Municipality of Makati into a Highly Urbanized City. As it happened, Republic Act No. 7854 created an additional legislative district for Makati, which at that time was a lone district. The petitioners in that case argued that the creation of an additional district would violate Section 5(3), Article VI of the Constitution, because the resulting districts would be supported by a population of less than 250,000, considering that Makati had a total population of only 450,000. The

Supreme Court sustained the constitutionality of the law and the validity of the newly created district, explaining the operation of the Constitutional phrase "each city with a population of at least two hundred fifty thousand," to wit: Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). Said section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the Ordinance appended to the Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional representative.28(Emphasis supplied) The Mariano case limited the application of the 250,000 minimum population requirement for cities only to its initial legislative district. In other words, while Section 5(3), Article VI of the Constitution requires a city to have a minimum population of 250,000 to be entitled to a representative, it does not have to increase its population by another 250,000 to be entitled to an additional district. There is no reason why the Mariano case, which involves the creation of an additional district within a city, should not be applied to additional districts in provinces. Indeed, if an additional legislative district created within a city is not required to represent a population of at least 250,000 in order to be valid, neither should such be needed for an additional district in a province, considering moreover that a province is entitled to an initial seat by the mere fact of its creation and regardless of its population. Apropos for discussion is the provision of the Local Government Code on the creation of a province which, by virtue of and upon creation, is entitled to at least a legislative district. Thus, Section 461 of the Local Government Code states: Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office. Notably, the requirement of population is not an indispensable requirement, but is merely an alternative addition to the indispensable income requirement. Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the deliberations on the words and meaning of Section 5 of Article VI. The whats, whys, and wherefores of the population requirement of "at least two hundred fifty thousand" may be gleaned from the records of the Constitutional Commission which, upon framing the provisions of Section 5 of Article VI, proceeded to form an ordinance that would be appended to the final document. The Ordinance is captioned "APPORTIONING THE SEATS OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE PHILIPPINES TO THE DIFFERENT

LEGISLATIVE DISTRICTS IN PROVINCES AND CITIES AND THE METROPOLITAN MANILA AREA." Such records would show that the 250,000 population benchmark was used for the 1986 nationwide apportionment of legislative districts among provinces, cities and Metropolitan Manila. Simply put, the population figure was used to determine how many districts a province, city, or Metropolitan Manila should have. Simply discernible too is the fact that, for the purpose, population had to be the determinant. Even then, the requirement of 250,000 inhabitants was not taken as an absolute minimum for one legislative district. And, closer to the point herein at issue, in the determination of the precise district within the province to which, through the use of the population benchmark, so many districts have been apportioned, population as a factor was not the sole,though it was among, several determinants. From its journal,29 we can see that the Constitutional Commission originally divided the entire country into two hundred (200) districts, which corresponded to the original number of district representatives. The 200 seats were distributed by the Constitutional Commission in this manner: first, one (1) seat each was given to the seventy-three (73) provinces and the ten (10) cities with a population of at least 250,000;30 second, the remaining seats were then redistributed among the provinces, cities and the Metropolitan Area "in accordance with the number of their inhabitants on the basis of a uniform and progressive ratio."31 Commissioner Davide, who later became a Member and then Chief Justice of the Court, explained this in his sponsorship remark32 for the Ordinance to be appended to the 1987 Constitution: Commissioner Davide: The ordinance fixes at 200 the number of legislative seats which are, in turn, apportioned among provinces and cities with a population of at least 250, 000 and the Metropolitan Area in accordance with the number of their respective inhabitants on the basis of a uniform and progressive ratio. The population is based on the 1986 projection, with the 1980 official enumeration as the point of reckoning. This projection indicates that our population is more or less 56 million. Taking into account the mandate that each city with at least 250, 000 inhabitants and each province shall have at least one representative, we first allotted one seat for each of the 73 provinces, and each one for all cities with a population of at least 250, 000, which are the Cities of Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga. Thereafter, we then proceed[ed] to increase whenever appropriate the number of seats for the provinces and cities in accordance with the number of their inhabitants on the basis of a uniform and progressive ratio. (Emphasis supplied). Thus was the number of seats computed for each province and city. Differentiated from this, the determination of the districts within the province had to consider "all protests and complaints formally received" which, the records show, dealt with determinants other than population as already mentioned. Palawan is a case in point. Journal No. 107 of the Constitutional Commission narrates: INTERPELLATION OF MR. NOLLEDO: Mr. Nolledo inquired on the reason for including Puerto Princesa in the northern towns when it was more affinity with the southern town of Aborlan, Batarasa, Brookes Point, Narra, Quezon and Marcos. He stated that the First District has a greater area than the Second District. He then queried whether population was the only factor considered by the Committee in redistricting. Replying thereto, Mr. Davide explained that the Committee took into account the standards set in Section 5 of the Article on the Legislative Department, namely: 1) the legislative seats should be apportioned among the provinces and cities and the Metropolitan Manila area in accordance with

their inhabitants on the basis of a uniform and progressive ratio; and 2) the legislative district must be compact, adjacent and contiguous. Mr. Nolledo pointed out that the last factor was not met when Puerto Princesa was included with the northern towns. He then inquired what is the distance between Puerto Princesa from San Vicente. xxxx Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of 75,480 and based on the apportionment, its inclusion with the northern towns would result in a combined population of 265,000 as against only 186,000 for the south. He added that Cuyo and Coron are very important towns in the northern part of Palawan and, in fact, Cuyo was the capital of Palawan before its transfer to Puerto Princesa. He also pointed out that there are more potential candidates in the north and therefore if Puerto Princesa City and the towns of Cuyo and Coron are lumped together, there would be less candidates in the south, most of whose inhabitants are not interested in politics. He then suggested that Puerto Princesa be included in the south or the Second District. Mr. Davide stated that the proposal would be considered during the period of amendments. He requested that the COMELEC staff study said proposal.33 "PROPOSED AMENDMENT OF MR. NOLLEDO On the districting of Palawan, Mr. Nolledo pointed out that it was explained in the interpellations that District I has a total population of 265,358 including the City of Puerto Princesa, while the Second District has a total population of 186,733. He proposed, however, that Puerto Princesa be included in the Second District in order to satisfy the contiguity requirement in the Constitution considering that said City is nearer the southern towns comprising the Second District. In reply to Mr. Monsods query, Mr. Nolledo explained that with the proposed transfer of Puerto Princesa City to the Second District, the First District would only have a total population of 190,000 while the Second District would have 262,213, and there would be no substantial changes. Mr. Davide accepted Mr. Nolledos proposal to insert Puerto Princesa City before the Municipality of Aborlan. There being no objection on the part of the Members the same was approved by the Body. APPROVAL OF THE APPORTIONMENT AND DISTRICTING OF PALAWAN There being no other amendment, on motion of Mr. Davide, there being no objection, the apportionment and districting for the province of Palawan was approved by the Body.34 The districting of Palawan disregarded the 250,000 population figure. It was decided by the importance of the towns and the city that eventually composed the districts. Benguet and Baguio are another reference point. The Journal further narrates: At this juncture, Mr. Davide informed the Body that Mr. Regalado made a reservation with the Committee for the possible reopening of the approval of Region I with respect to Benguet and Baguio City.

REMARKS OF MR. REGALADO Mr. Regalado stated that in the formulation of the Committee, Baguio City and Tuba are placed in one district. He stated that he was toying with the idea that, perhaps as a special consideration for Baguio because it is the summer capital of the Philippines, Tuba could be divorced from Baguio City so that it could, by itself, have its own constituency and Tuba could be transferred to the Second District together with Itogon. Mr. Davide, however, pointed out that the population of Baguio City is only 141,149. Mr. Regalado admitted that the regular population of Baguio may be lower during certain times of the year, but the transient population would increase the population substantially and, therefore, for purposes of business and professional transactions, it is beyond question that population-wise, Baguio would more than qualify, not to speak of the official business matters, transactions and offices that are also there. Mr. Davide adverted to Director de Limas statement that unless Tuba and Baguio City are united, Tuba will be isolated from the rest of Benguet as the place can only be reached by passing through Baguio City. He stated that the Committee would submit the matter to the Body. Upon inquiry of the Chair whether he is insisting on his amendment, Mr. Regalado stated that the Body should have a say on the matter and that the considerations he had given are not on the demographic aspects but on the fact that Baguio City is the summer capital, the venue and situs of many government offices and functions. On motion of Mr. Davide, there being no objection, the Body approved the reconsideration of the earlier approval of the apportionment and districting of Region I, particularly Benguet. Thereafter, on motion of Mr. Davide, there being no objection, the amendment of Mr. Regalado was put to a vote. With 14 Members voting in favor and none against, the amendment was approved by the Body. Mr. Davide informed that in view of the approval of the amendment, Benguet with Baguio City will have two seats. The First District shall comprise of the municipalities of Mankayan, Buguias, Bakun, Kabayan, Kibungan, Bokod, Atok, Kapangan, Tublay, La Trinidad, Sablan, Itogon and Tuba. The Second District shall comprise of Baguio City alone. There being no objection, the Body approved the apportionment and districting of Region I.35 Quite emphatically, population was explicitly removed as a factor. It may be additionally mentioned that the province of Cavite was divided into districts based on the distribution of its three cities, with each district having a city: one district "supposed to be a fishing area; another a vegetable and fruit area; and the third, a rice growing area," because such consideration "fosters common interests in line with the standard of compactness."36 In the districting of Maguindanao, among the matters discussed were "political stability and common interest among the people in the area" and the possibility of "chaos and disunity" considering the "accepted regional, political, traditional and sectoral leaders."37 For Laguna, it was mentioned that municipalities in the highland should not be grouped with the towns in the lowland. For Cebu, Commissioner Maambong proposed that they should "balance the area and population."38

Consistent with Mariano and with the framer deliberations on district apportionment, we stated in Bagabuyo v. COMELEC39 that: x x x Undeniably, these figures show a disparity in the population sizes of the districts. The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation. x x x. To ensure quality representation through commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact and adjacent territory. (Emphasis supplied). This 2008 pronouncement is fresh reasoning against the uncompromising stand of petitioner that an additional provincial legislative district, which does not have at least a 250,000 population is not allowed by the Constitution. The foregoing reading and review lead to a clear lesson. Neither in the text nor in the essence of Section 5, Article VI of the Constitution can, the petition find support. And the formulation of the Ordinance in the implementation of the provision, nay, even the Ordinance itself, refutes the contention that a population of 250,000 is a constitutional sine qua non for the formation of an additional legislative district in a province, whose population growth has increased beyond the 1986 numbers. Translated in the terms of the present case: 1. The Province of Camarines Sur, with an estimated population of 1,693,821 in 2007 is based on the formula and constant number of 250,000 used by the Constitutional Commission in nationally apportioning legislative districts among provinces and cities entitled to two (2) districts in addition to the four (4) that it was given in the 1986 apportionment. Significantly, petitioner Aquino concedes this point.40 In other words, Section 5 of Article VI as clearly written allows and does not prohibit an additional district for the Province of Camarines Sur, such as that provided for in Republic Act No. 9786; 2. Based on the pith and pitch of the exchanges on the Ordinance on the protests and complaints against strict conformity with the population standard, and more importantly based on the final districting in the Ordinance on considerations other than population, the reapportionment or the recomposition of the first and second legislative districts in the Province of Camarines Sur that resulted in the creation of a new legislative district is valid even if the population of the new district is 176,383 and not 250,000 as insisted upon by the petitioners. 3. The factors mentioned during the deliberations on House Bill No. 4264, were: (a) the dialects spoken in the grouped municipalities; (b) the size of the original groupings compared to that of the regrouped municipalities; (c) the natural division separating the municipality subject of the discussion from the reconfigured District One; and

(d) the balancing of the areas of the three districts resulting from the redistricting of Districts One and Two.41 Each of such factors and in relation to the others considered together, with the increased population of the erstwhile Districts One and Two, point to the utter absence of abuse of discretion, much less grave abuse of discretion,42 that would warrant the invalidation of Republic Act No. 9716. To be clear about our judgment, we do not say that in the reapportionment of the first and second legislative districts of Camarines Sur, the number of inhabitants in the resulting additional district should not be considered. Our ruling is that population is not the only factor but is just one of several other factors in the composition of the additional district. Such settlement is in accord with both the text of the Constitution and the spirit of the letter, so very clearly given form in the Constitutional debates on the exact issue presented by this petition.
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WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716 entitled "An Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur and Thereby Creating a New Legislative District From Such Reapportionment" is a VALID LAW. SO ORDERED.
Aldaba vs Comelec
Republic of the Philippines SUPREME COURT Manila EN BANC G.R No. 188078 March 15, 2010
VICTORINO B. ALDABA, CARLO JOLETTE S. FAJARDO, JULIO G. MORADA, and MINERVA ALDABA MORADA, Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. RESOLUTION CARPIO, J.: This resolves the motion for reconsideration of respondent Commission on Elections (COMELEC) of the Decision dated 25 January 2010.1 The COMELEC grounds its motion on the singular reason, already considered and rejected in the Decision, that Congress reliance on the Certification of Alberto N. Miranda (Miranda), Region III Director, National Statistics Office (NSO), projecting Malolos Citys population in 2010, is nonjusticiable. The COMELEC also calls attention to the other sources of Malolos Citys population indicators as of 2007 (2007 Census of Population PMS 3 Progress Enumeration Report2) and as of 2008 (Certification of the City of Malolos Water District, dated 31 July 2008,3 and Certification of the Liga ng Barangay, dated 22 August 20084) which Congress allegedly used in enacting Republic Act No. 9591 (RA 9591). The COMELEC extends its non-justiciability argument to these materials. We find no reason to grant the motion. First. It will not do for the COMELEC to insist that the reliability and authoritativeness of the population indicators Congress used in enacting RA 9591 are non-justiciable. If laws creating legislative districts are unquestionably within the ambit of this Courts judicial review power,5 then there is more reason to hold justiciable subsidiary questions impacting on their constitutionality, such as their compliance with a specific constitutional limitation under Section 5(3), Article VI of the 1987 Constitution that only cities with at least 250,000 constituents are entitled to representation in Congress. To fulfill this obligation, the Court, of necessity, must inquire into the authoritativeness and reliability of the population indicators Congress used to comply with the constitutional limitation. Thus, nearly five decades ago, we already rejected claims of non-justiciability of an apportionment law alleged to violate the constitutional requirement of proportional representation: It is argued in the motion to reconsider, that since Republic Act 3040 improves existing conditions, this Court could perhaps, in the exercise of judicial statesmanship, consider the question involved as purely political and therefore non-justiciable. The overwhelming weight of authority is that district apportionment laws are subject to review by the courts[:] The constitutionality of a legislative apportionment act is a judicial question, and not one which the court cannot consider on the ground that it is a political question.
Aldaba vs Comelec
It is well settled that the passage of apportionment acts is not so exclusively within the political power of the legislature as to preclude a court from inquiring into their constitutionality when the question is properly brought before it. It may be added in this connection, that the mere impact of the suit upon the political situation does not render it political instead of judicial. The alleged circumstance that this statute improves the present set-up constitutes no excuse for approving a transgression of constitutional limitations, because the end does not justify the means. Furthermore, there is no reason to doubt that, aware of the existing inequality of representation, and impelled by its sense of duty, Congress will opportunely approve remedial legislation in accord with the precepts of the Constitution.6 (Emphasis supplied; internal citations omitted) To deny the Court the exercise of its judicial review power over RA 9591 is to contend that this Court has no power "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," a duty mandated under Section 1, Article VIII of the Constitution. Indeed, if we subscribe to the COMELECs theory, this Court would be reduced to rubberstamping laws creating legislative districts no matter how unreliable and non-authoritative the population indicators Congress used to justify their creation. There can be no surer way to render meaningless the limitation in Section 5(3), Article VI of the 1987 Constitution.7 Second. Under Executive Order No. 135 (EO 135), the population indicators Congress used to measure Malolos Citys compliance with the constitutional limitation are unreliable and nonauthoritative. On Mirandas Certification, (that the "projected population of the [City] of Malolos will be 254,030 by the year 2010 using the population growth rate of 3.78[%] between 1995 and 2000"), this fell short of EO 135s requirements that (a) for intercensal years, the certification should be based on a set of demographic projections and estimates declared official by the National Statistical and Coordination Board (NSCB); (b) certifications on intercensal population estimates will be as of the middle of every year; and (c) certifications based on projections or estimates must be issued by the NSO Administrator or his designated certifying officer. Further, using Mirandas own growth rate assumption of 3.78%, Malolos Citys population as of 1 August 2010 will only be 249,333, below the constitutional threshold of 250,000 (using as base Malolos Citys population as of 1 August 2007 which is 223,069). That Miranda issued his Certification "by authority of the NSO administrator" does not make the document reliable as it neither makes Miranda the NSO Administrators designated certifying officer nor cures the Certification of its fatal defects for failing to use demographic projections and estimates declared official by the NSCB or make the projection as of the middle of 2010.
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Nor are the 2007 Census of Population PMS 3 Progress Enumeration Report, the Certification of the City of Malolos Water District, dated 31 July 2008 and the Certification of the Liga ng Barangay, dated 22 August 2008, reliable because none of them qualifies as authoritative population indicator under EO 135. The 2007 Census of Population PMS 3 Progress Enumeration Report merely contains preliminary data on the population census of Bulacan which were subsequently adjusted to reflect actual population as indicated in the 2007 Census results (showing Malolos Citys population at 223,069). The COMELEC, through the Office of the Solicitor General (OSG), adopts Malolos Citys claim that the 2007 census for Malolos City was "sloped to make it appear that come Year 2010, the population count for Malolos would still fall short of the constitutional requirement."8 This unbecoming attack by the governments chief counsel on the integrity of the processes of the governments census authority has no place in our judicial system. The OSG ought to know that absent convincing proof of so-called data "sloping," the NSO enjoys the presumption of the regularity in the performance of its functions.
Aldaba vs Comelec
The Certification of the City of Malolos Water District fares no better. EO 135 excludes from its ambit certifications from a public utility gathered incidentally in the course of pursuing its business. To elevate the water districts so-called population census to the level of credibility NSO certifications enjoy is to render useless the existence of NSO. This will allow population data incidentally gathered by electric, telephone, sewage, and other utilities to enter into legislative processes even though these private entities are not in the business of generating statistical data and thus lack the scientific training, experience and competence to handle, collate and process them. Similarly, the Certification of the Liga ng Barangay is not authoritative because much like the Malolos City Water District, the Liga ng Barangay is not authorized to conduct population census, much less during off-census years. The non-NSO entities EO 135 authorizes to conduct population census are local government units (that is, province, city, municipality or barangay) subject to the prior approval of the NSCB and under the technical supervision of the NSO from planning to data processing.9 By presenting these alternative population indicators with their widely divergent population figures,10 the COMELEC unwittingly highlighted the danger of relying on non-NSO authorized certifications. EO 135s stringent standards ensuring reliability of population census cannot be diluted as these data lie at the core of crucial government decisions and, in this case, the legislative function of enforcing the constitutional mandate of creating congressional districts in cities with at least 250,000 constituents. There can be no doubt on the applicability of EO 135 to test the constitutionality of RA 9591. The COMELEC invoked EO 135 to convince the Court of the credibility and authoritativeness of Mirandas certificate.11 It is hardly alien for the Court to adopt standards contained in a parallel statute to fill gaps in the law in the absence of an express prohibition.12 Indeed, one is hard-pressed to find any distinction, statistically speaking, on the reliability of an NSO certification of a citys population for purposes of creating its legislative district and for purposes of converting it to a highlyurbanized or an independent component city.13 Congress itself confirms the wisdom and relevance of EO 135s paradigm of privileging NSO certifications by mandating that compliance with the population requirement in the creation and conversion of local government units shall be proved exclusively by an NSO certification.14 Unquestionably, representation in Congress is no less important than the creation of local government units in enhancing our democratic institutions, thus both processes should be subject to the same stringent standards. Third. Malolos City is entitled to representation in Congress only if, before the 10 May 2010 elections, it breaches the 250,000 population mark following the mandate in Section 3 of the Ordinance appended to the 1987 Constitution that "any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member." COMELEC neither alleged nor proved that Malolos City is in compliance with Section 3 of the Ordinance. Fourth. Aside from failing to comply with Section 5(3), Article VI of the Constitution on the population requirement, the creation by RA 9591 of a legislative district for Malolos City, carving the city from the former First Legislative District, leaves the town of Bulacan isolated from the rest of the geographic mass of that district.15 This contravenes the requirement in Section 5(3), Article VI that each legislative district shall "comprise, as far as practicable, contiguous, compact, and adjacent territory." It is no argument to say, as the OSG does, that it was impracticable for Congress to create a district with contiguous, compact, and adjacent territory because Malolos city lies at the center of the First Legislative District. The geographic lay-out of the First Legislative District is not an insuperable condition making compliance with Section 5(3) impracticable. To adhere to the
Aldaba vs Comelec
constitutional mandate, and thus maintain fidelity to its purpose of ensuring efficient representation, the practicable alternative for Congress was to include the municipality of Bulacan in Malolos Citys legislative district. Although unorthodox, the resulting contiguous and compact district fulfills the constitutional requirements of geographic unity and population floor, ensuring efficient representation of the minimum mass of constituents. WHEREFORE, the Supplemental Motion for Reconsideration of respondent Commission on Elections dated 22 February 2010 is DENIED WITH FINALITY. Let no further pleadings be allowed. SO ORDERED.
Navarro vs Ermita
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 180050 February 10, 2010
RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA, Petitioners, vs. EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines; Senate of the Philippines, represented by the SENATE PRESIDENT; House of Representatives, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS, representing the mother province of Surigao del Norte; GOVERNOR GERALDINE ECLEO VILLAROMAN, representing the new Province of Dinagat Islands, Respondents. DECISION PERALTA, J.: This is a petition for certiorari under Rule 65 of the Rules of Court seeking to nullify Republic Act (R.A.) No. 9355, otherwise known as An Act Creating the Province of Dinagat Islands, for being unconstitutional. Petitioners Rodolfo G. Navarro, Victor F. Bernal, and Rene O. Medina aver that they are taxpayers and residents of the Province of Surigao del Norte. They have served the Province of Surigao del Norte once as Vice- Governor and members of the Provincial Board, respectively. They claim to have previously filed a similar petition, which was dismissed on technical grounds.1 They allege that the creation of the Dinagat Islands as a new province, if uncorrected, perpetuates an illegal act of Congress, and unjustly deprives the people of Surigao del Norte of a large chunk of its territory, Internal Revenue Allocation and rich resources from the area. The facts are as follows: The mother province of Surigao del Norte was created and established under R.A. No. 2786 on June 19, 1960. The province is composed of three main groups of islands: (1) the Mainland and Surigao City; (2) Siargao Island and Bucas Grande; and (3) Dinagat Island, which is composed of seven municipalities, namely, Basilisa, Cagdianao, Dinagat, Libjo, Loreto, San Jose, and Tubajon. Based on the official 2000 Census of Population and Housing conducted by the National Statistics Office (NSO),2the population of the Province of Surigao del Norte as of May 1, 2000 was 481,416, broken down as follows: Mainland 281,111 Surigao City 118,534 Siargao Island & Bucas Grande 93,354 Dinagat Island 106,951
Navarro vs Ermita
Under Section 461 of R.A. No. 7610, otherwise known as The Local Government Code, a province may be created if it has an average annual income of not less than P20 million based on 1991 constant prices as certified by the Department of Finance, and a population of not less than 250,000 inhabitants as certified by the NSO, or a contiguous territory of at least 2,000 square kilometers as certified by the Lands Management Bureau. The territory need not be contiguous if it comprises two or more islands or is separated by a chartered city or cities, which do not contribute to the income of the province. On April 3, 2002, the Office of the President, through its Deputy Executive Secretary for Legal Affairs, advised the Sangguniang Panlalawigan of the Province of Surigao del Norte of the deficient population in the proposed Province of Dinagat Islands.3 In July 2003, the Provincial Government of Surigao del Norte conducted a special census, with the assistance of an NSO District Census Coordinator, in the Dinagat Islands to determine its actual population in support of the house bill creating the Province of Dinagat Islands. The special census yielded a population count of 371,576 inhabitants in the proposed province. The NSO, however, did not certify the result of the special census. On July 30, 2003, Surigao del Norte Provincial Governor Robert Lyndon S. Barbers issued Proclamation No. 01, which declared as official, for all purposes, the 2003 Special Census in Dinagat Islands showing a population of 371,576.4 The Bureau of Local Government Finance certified that the average annual income of the proposed Province of Dinagat Islands for calendar year 2002 to 2003 based on the 1991 constant prices was P82,696,433.23. The land area of the proposed province is 802.12 square kilometers. On August 14, 2006 and August 28, 2006, the Senate and the House of Representatives, respectively, passed the bill creating the Province of Dinagat Islands. It was approved and enacted into law as R.A. No. 9355 on October 2, 2006 by President Gloria Macapagal-Arroyo. On December 2, 2006, a plebiscite was held in the mother Province of Surigao del Norte to determine whether the local government units directly affected approved of the creation of the Province of Dinagat Islands into a distinct and independent province comprising the municipalities of Basilisa, Cagdianao, Dinagat, Libjo (Albor), Loreto, San Jose, and Tubajon. The result of the plebiscite yielded 69,943 affirmative votes and 63,502 negative votes.5 On December 3, 2006, the Plebiscite Provincial Board of Canvassers proclaimed that the creation of Dinagat Islands into a separate and distinct province was ratified and approved by the majority of the votes cast in the plebiscite.6 On January 26, 2007, a new set of provincial officials took their oath of office following their appointment by President Gloria Macapagal-Arroyo. Another set of provincial officials was elected during the synchronized national and local elections held on May 14, 2007. On July 1, 2007, the elected provincial officials took their oath of office; hence, the Province of Dinagat Islands began its corporate existence.7 Petitioners contended that the creation of the Province of Dinagat Islands under R.A. No. 9355 is not valid because it failed to comply with either the population or land area requirement prescribed by the Local Government Code. Petitioners prayed that R.A. No. 9355 be declared unconstitutional, and that all subsequent appointments and elections to the new vacant positions in the newly created Province of Dinagat Islands be declared null and void. They also prayed for the return of the municipalities of the
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Province of Dinagat Islands and the return of the former districts to the mother Province of Surigao del Norte. Petitioners raised the following issues: I WHETHER OR NOT REPUBLIC ACT NO. 9355, CREATING THE NEW PROVINCE OF DINAGAT ISLANDS, COMPLIED WITH THE CONSTITUTION AND STATUTORY REQUIREMENTS UNDER SECTION 461 OF REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991. II WHETHER OR NOT THE CREATION OF DINAGAT AS A NEW PROVINCE BY THE RESPONDENTS IS AN ACT OF GERRYMANDERING. III WHETHER OR NOT THE RESULT OF THE PLEBISCITE IS CREDIBLE AND TRULY REFLECTS THE MANDATE OF THE PEOPLE.8 In her Memorandum, respondent Governor Geraldine B. Ecleo-Villaroman of the Province of Dinagat Islands raises procedural issues. She contends that petitioners do not have the legal standing to question the constitutionality of the creation of the Province of Dinagat, since they have not been directly injured by its creation and are without substantial interest over the matter in controversy. Moreover, she alleges that the petition is moot and academic because the existence of the Province of Dinagat Islands has already commenced; hence, the petition should be dismissed. The contention is without merit. In Coconut Oil Refiners Association, Inc. v. Torres,9 the Court held that in cases of paramount importance where serious constitutional questions are involved, the standing requirements may be relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial review. In the same vein, with respect to other alleged procedural flaws, even assuming the existence of such defects, the Court, in the exercise of its discretion, brushes aside these technicalities and takes cognizance of the petition considering its importance and in keeping with the duty to determine whether the other branches of the government have kept themselves within the limits of the Constitution.10 Further, supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution.11 The courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review.12 The main issue is whether or not R.A. No. 9355 violates Section 10, Article X of the Constitution. Petitioners contend that the proposed Province of Dinagat Islands is not qualified to become a province because it failed to comply with the land area or the population requirement, despite its compliance with the income requirement. It has a total land area of only 802.12 square kilometers, which falls short of the statutory requirement of at least 2,000 square kilometers. Moreover, based on the NSO 2000 Census of Population, the total population of the proposed Province of Dinagat
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Islands is only 106,951, while the statutory requirement is a population of at least 250,000 inhabitants. Petitioners allege that in enacting R.A. No. 9355 into law, the House of Representatives and the Senate erroneously relied on paragraph 2 of Article 9 of the Rules and Regulations Implementing the Local Government Code of 1991, which states that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands."13 The preceding italicized provision contained in the Implementing Rules and Regulations is not expressly or impliedly stated as an exemption to the land area requirement in Section 461 of the Local Government Code. Petitioners assert that when the Implementing Rules and Regulations conflict with the law that they seek to implement, the law prevails. On the other hand, respondents contend in their respective Memoranda that the Province of Dinagat Islands met the legal standard for its creation.
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First, the Bureau of Local Government Finance certified that the average annual income of the proposed Province of Dinagat Islands for the years 2002 to 2003 based on the 1991 constant prices was P82,696,433.25. Second, the Lands Management Bureau certified that though the land area of the Province of Dinagat Islands is 802.12 square kilometers, it is composed of one or more islands; thus, it is exempt from the required land area of 2,000 square kilometers under paragraph 2 of Article 9 of the Rules and Regulations Implementing the Local Government Code. Third, in the special census conducted by the Provincial Government of Surigao del Norte, with the assistance of a District Census Coordinator of the NSO, the number of inhabitants in the Province of Dinagat Islands as of 2003, or almost three years before the enactment of R.A. No. 9355 in 2006, was 371,576, which is more than the minimum requirement of 250,000 inhabitants. In his Memorandum, respondent Governor Ace S. Barbers contends that although the result of the special census conducted by the Provincial Government of Surigao del Norte on December 2, 2003 was never certified by the NSO, it is credible since it was conducted with the aid of a representative of the NSO. He alleged that the lack of certification by the NSO was cured by the presence of NSO officials, who testified during the deliberations on House Bill No. 884 creating the Province of Dinagat Islands, and who questioned neither the conduct of the special census nor the validity of the result. The Ruling of the Court The petition is granted. The constitutional provision on the creation of a province in Section 10, Article X of the Constitution states: SEC. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected."14 Pursuant to the Constitution, the Local Government Code of 1991 prescribed the criteria for the creation of a province, thus:
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SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.15 As a clarification of the territorial requirement, the Local Government Code requires a contiguous territory of at least 2,000 square kilometers, as certified by the Lands Management Bureau. However, the territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities that do not contribute to the income of the province. If a proposed province is composed of two or more islands, does "territory," under Sec. 461 of the Local Government Code, include not only the land mass above the water, but also that which is beneath it? To answer the question above, the discussion in Tan v. Commission on Elections (COMELEC)16 is enlightening. In Tan v. COMELEC, petitioners therein contended that Batas Pambansa Blg. 885, creating the new Province of Negros del Norte, was unconstitutional for it was not in accord with Art. XI, Sec. 3 of the Constitution, and Batas Pambansa Blg. 337, the former Local Government Code. Although what was applicable then was the 1973 Constitution and the former Local Government Code, the provisions pertinent to the case are substantially similar to the provisions in this case. Art. XI, Sec. 3 of the 1973 Constitution provides: Sec. 3. No province, city, municipality or barrio (barangay in the 1987 Constitution) may be created, divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected. The requisites for the creation of a province in Sec. 197 of Batas Pambansa Blg. 337 are similar to the requisites in Sec. 461 of the Local Government Code of 1991, but the requirements for population and territory/land area are lower now, while the income requirement is higher. Sec. 197 of Batas Pambansa Blg. 337, the former Local Government Code, provides:
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SEC. 197.Requisites for Creation.A province may be created if it has a territory of at least three thousand five hundred square kilometers, a population of at least five hundred thousand persons, an average estimated annual income, as certified by the Ministry of Finance, of not less than ten million pesos for the last three consecutive years, and its creation shall not reduce the population and income of the mother province or provinces at the time of said creation to less than the minimum requirements under this section. The territory need not be contiguous if it comprises two or more islands. The average estimated annual income shall include the income allotted for both the general and infrastructure funds, exclusive of trust funds, transfers and nonrecurring income.17 In Tan v. COMELEC, petitioners therein filed a case for Prohibition for the purpose of stopping the COMELEC from conducting the plebiscite scheduled on January 3, 1986. Since the Court was in recess, it was unable to consider the petition on time. Petitioners filed a supplemental pleading, averring that the plebiscite sought to be restrained by them was held as scheduled, but there were still serious issues raised in the case affecting the legality, constitutionality and validity of such exercise which should properly be passed upon and resolved by the Court. At issue in Tan was the land area of the new Province of Negros del Norte, and the validity of the plebiscite, which did not include voters of the parent Province of Negros Occidental, but only those living within the territory of the new Province of Negros del Norte. The Court held that the plebiscite should have included the people living in the area of the proposed new province and those living in the parent province. However, the Court did not direct the conduct of a new plebiscite, because the factual and legal basis for the creation of the new province did not exist as it failed to satisfy the land area requirement; hence, Batas Pambansa Blg. 885, creating the new Province of Negros del Norte, was declared unconstitutional. The Court found that the land area of the new province was only about 2,856 square kilometers, which was below the statutory requirement then of 3,500 square kilometers. Respondents in Tan insisted that when the Local Government Code speaks of the required territory of the province to be created, what is contemplated is not only the land area, but also the land and water over which the said province has jurisdiction and control. The respondents submitted that in this regard, the marginal sea within the three mile limit should be considered in determining the extent of the territory of the new province. The Court stated that "[s]uch an interpretation is strained, incorrect and fallacious."18 It held: The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or more islands." The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly, reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control. Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b) touching along all or most of one side; (c) near, [n]ext, or adjacent (Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous," when employed as an adjective, as in the above sentence, is only used when it describes physical contact, or a touching of sides of two solid masses of matter. The meaning of particular terms in a statute may be ascertained by reference to words associated with or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R., p. 110). Therefore, in the context of the sentence above, what need not be "contiguous" is the "territory" the physical mass of land area. There would arise no need for the legislators to use the
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word contiguous if they had intended that the term "territory" embrace not only land area but also territorial waters. It can be safely concluded that the word territory in the first paragraph of Section 197 is meant to be synonymous with "land area" only. The words and phrases used in a statute should be given the meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the words are used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664).19 The discussion of the Court in Tan on the definition and usage of the terms "territory," and "contiguous," and the meaning of the provision, "The territory need not be contiguous if it comprises two or more islands," contained in Sec. 197 of the former Local Government Code, which provides for the requisites in the creation of a new province, is applicable in this case since there is no reason for a change in their respective definitions, usage, or meaning in its counterpart provision in the present Local Government Code contained in Sec. 461 thereof. The territorial requirement in the Local Government Code is adopted in the Rules and Regulations Implementing the Local Government Code of 1991 (IRR),20 thus: ART. 9. Provinces.(a) Requisites for creationA province shall not be created unless the following requisites on income and either population or land area are present: (1) Income An average annual income of not less than Twenty Million Pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; and (2) Population or land area - Population which shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by National Statistics Office; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds. However, the IRR went beyond the criteria prescribed by Section 461 of the Local Government Code when it added the italicized portion above stating that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands." Nowhere in the Local Government Code is the said provision stated or implied. Under Section 461 of the Local Government Code, the only instance when the territorial or land area requirement need not be complied with is when there is already compliance with the population requirement. The Constitution requires that the criteria for the creation of a province, including any exemption from such criteria, must all be written in the Local Government Code.21 There is no dispute that in case of discrepancy between the basic law and the rules and regulations implementing the said law, the basic law prevails, because the rules and regulations cannot go beyond the terms and provisions of the basic law.22 Hence, the Court holds that the provision in Sec. 2, Art. 9 of the IRR stating that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands" is null and void. Respondents, represented by the Office of the Solicitor General, argue that rules and regulations have the force and effect of law as long as they are germane to the objects and purposes of the law.
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They contend that the exemption from the land area requirement of 2,000 square kilometers is germane to the purpose of the Local Government Code to develop political and territorial subdivisions into self-reliant communities and make them more effective partners in the attainment of national goals.23 They assert that in Holy Spirit Homeowners Association, Inc. v. Defensor,24 the Court declared as valid the implementing rules and regulations of a statute, even though the administrative agency added certain provisions in the implementing rules that were not found in the law. In Holy Spirit Homeowners Association, Inc. v. Defensor, the provisions in the implementing rules and regulations, which were questioned by petitioner therein, merely filled in the details in accordance with a known standard. The law that was questioned was R.A. No. 9207, otherwise known as "National Government Center (NGC) Housing and Land Utilization Act of 2003." It was therein declared that the "policy of the State [was] to secure the land tenure of the urban poor. Toward this end, lands located in the NGC, Quezon City shall be utilized for housing, socioeconomic, civic, educational, religious and other purposes." Section 5 of R.A. No. 9207 created the National Government Center Administration Committee, which was tasked to administer, formulate the guidelines and policies and implement the land disposition of the areas covered by the law. Petitioners therein contended that while Sec. 3.2 (a.1) of the IRR fixed the selling rate of a lot at P700.00 per sq. m., R.A. No. 9207 did not provide for the price. In addition, Sec. 3.2 (c.1) of the IRR penalizes a beneficiary who fails to execute a contract to sell within six (6) months from the approval of the subdivision plan by imposing a price escalation, while there is no such penalty imposed by R.A. No. 9207. Thus, they conclude that the assailed provisions conflict with R.A. No. 9207 and should be nullified. In Holy Spirit Homeowners Association, Inc., the Court held: Where a rule or regulation has a provision not expressly stated or contained in the statute being implemented, that provision does not necessarily contradict the statute. A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to but in conformity with the standards prescribed by the law. In Section 5 of R.A. No. 9207, the Committee is granted the power to administer, formulate guidelines and policies, and implement the disposition of the areas covered by the law. Implicit in this authority and the statutes objective of urban poor housing is the power of the Committee to formulate the manner by which the reserved property may be allocated to the beneficiaries. Under this broad power, the Committee is mandated to fill in the details such as the qualifications of beneficiaries, the selling price of the lots, the terms and conditions governing the sale and other key particulars necessary to implement the objective of the law. These details are purposely omitted from the statute and their determination is left to the discretion of the Committee because the latter possesses special knowledge and technical expertise over these matters. The Committees authority to fix the selling price of the lots may be likened to the rate-fixing power of administrative agencies. In case of a delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just. However, it has been held that even in the absence of an express requirement as to reasonableness, this standard may be implied. In this regard, petitioners do not even claim that the selling price of the lots is unreasonable.
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The provision on the price escalation clause as a penalty imposed to a beneficiary who fails to execute a contract to sell within the prescribed period is also within the Committees authority to formulate guidelines and policies to implement R.A. No. 9207. The Committee has the power to lay down the terms and conditions governing the disposition of said lots, provided that these are reasonable and just. There is nothing objectionable about prescribing a period within which the parties must execute the contract to sell. This condition can ordinarily be found in a contract to sell and is not contrary to law, morals, good customs, public order, or public policy.25 Hence, the provisions in the implementing rules and regulations that were questioned in Holy Spirit Homeowners Association, Inc. merely filled in the necessary details to implement the objective of the law in accordance with a known standard, and were thus germane to the purpose of the law. In this case, the pertinent provision in the IRR did not fill in any detail in accordance with a known standard provided for by the law. Instead, the IRR added an exemption to the standard or criteria prescribed by the Local Government Code in the creation of a province as regards the land area requirement, which exemption is not found in the Code. As such, the provision in the IRR that the land area requirement shall not apply where the proposed province is composed of one or more islands is not in conformity with the standard or criteria prescribed by the Local Government Code; hence, it is null and void. Contrary to the contention of respondents, the extraneous provision cannot be considered as germane to the purpose of the law to develop territorial and political subdivisions into self-reliant communities because, in the first place, it already conflicts with the criteria prescribed by the law in creating a territorial subdivision. Further, citing Galarosa v. Valencia,26 the Office of the Solicitor General contends that the IRRs issued by the Oversight Committee composed of members of the legislative and executive branches of the government are entitled to great weight and respect, as they are in the nature of executive construction. The case is not in point. In Galarosa, the issue was whether or not Galarosa could continue to serve as a member of the Sangguniang Bayan beyond June 30, 1992, the date when the term of office of the elective members of theSangguniang Bayan of Sorsogon expired. Galarosa was the incumbent president of the Katipunang Bayan or Association of Barangay Councils (ABC) of the Municipality of Sorsogon, Province of Sorsogon; and was appointed as a member of the Sangguniang Bayan (SB) of Sorsogon pursuant to Executive Order No. 342 in relation to Sec. 146 of Batas Pambansa Blg. 337, the former Local Government Code. Sec. 494 of the Local Government Code of 199127 states that the duly elected presidents of the liga [ng mga barangay] at the municipal, city and provincial levels, including the component cities and municipalities of Metropolitan Manila, shall serve as ex officio members of the sangguniang bayan, sangguniang panglungsod, and sangguniang panlalawigan, respectively. They shall serve as such only during their term of office as presidents of the liga chapters which, in no case, shall be beyond the term of office of the sanggunian concerned. The section, however, does not fix the specific duration of their term as liga president. The Court held that this was left to the by-laws of the liga pursuant to Art. 211(g) of the Rules and Regulations Implementing the Local Government Code of 1991. Moreover, there was no indication that Secs. 49128 and 494 should be given retroactive effect to adversely affect the presidents of the ABC; hence, the said provisions were to be applied prospectively. The Court stated that there is no law that prohibits ABC presidents from holding over as members of theSangguniang Bayan. On the contrary, the IRR, prepared and issued by the Oversight Committee
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upon specific mandate of Sec. 533 of the Local Government Code, expressly recognizes and grants the hold-over authority to the ABC presidents under Art. 210, Rule XXIX.29 The Court upheld the application of the hold-over doctrine in the provisions of the IRR and the issuances of the DILG, whose purpose was to prevent a hiatus in the government pending the time when the successor may be chosen and inducted into office. The Court held that Sec. 494 of the Local Government Code could not have been intended to allow a gap in the representation of the barangays, through the presidents of the ABC, in the sanggunian. Since the term of office of the punong barangays elected in the March 28, 1989 election and the term of office of the presidents of the ABC had not yet expired, and taking into account the special role conferred upon, and the broader powers and functions vested in the barangays by the Code, it was inferred that the Code never intended to deprive thebarangays of their representation in the sangguniang bayan during the interregnum when the liga had yet to be formally organized with the election of its officers. Under the circumstances prevailing in Galarosa, the Court considered the relevant provisions in the IRR formulated by the Oversight Committee and the pertinent issuances of the DILG in the nature of executive construction, which were entitled to great weight and respect. Courts determine the intent of the law from the literal language of the law within the laws four corners.30 If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms.31If a literal application of the law results in absurdity, impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history of the law,32 or may consider the implementing rules and regulations and pertinent executive issuances in the nature of executive construction. In this case, the requirements for the creation of a province contained in Sec. 461 of the Local Government Code are clear, plain and unambiguous, and its literal application does not result in absurdity or injustice. Hence, the provision in Art. 9(2) of the IRR exempting a proposed province composed of one or more islands from the land-area requirement cannot be considered an executive construction of the criteria prescribed by the Local Government Code. It is an extraneous provision not intended by the Local Government Code and, therefore, is null and void. Whether R.A. No. 9355 complied with the requirements of Section 461 of the Local Government Code in creating the Province of Dinagat Islands It is undisputed that R.A. No. 9355 complied with the income requirement specified by the Local Government Code. What is disputed is its compliance with the land area or population requirement. R.A. No. 9355 expressly states that the Province of Dinagat Islands "contains an approximate land area of eighty thousand two hundred twelve hectares (80,212 has.) or 802.12 sq. km., more or less, including Hibuson Island and approximately forty-seven (47) islets x x x."33 R.A. No. 9355, therefore, failed to comply with the land area requirement of 2,000 square kilometers. The Province of Dinagat Islands also failed to comply with the population requirement of not less than 250,000 inhabitants as certified by the NSO. Based on the 2000 Census of Population conducted by the NSO, the population of the Province of Dinagat Islands as of May 1, 2000 was only 106,951. Although the Provincial Government of Surigao del Norte conducted a special census of population in Dinagat Islands in 2003, which yielded a population count of 371,000, the result was not certified by the NSO as required by the Local Government Code.34 Moreover, respondents failed to prove that
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with the population count of 371,000, the population of the original unit (mother Province of Surigao del Norte) would not be reduced to less than the minimum requirement prescribed by law at the time of the creation of the new province.35 Respondents contended that the lack of certification by the NSO was cured by the presence of the officials of the NSO during the deliberations on the house bill creating the Province of Dinagat Islands, since they did not object to the result of the special census conducted by the Provincial Government of Surigao del Norte. The contention of respondents does not persuade. Although the NSO representative to the Committee on Local Government deliberations dated November 24, 2005 did not object to the result of the provincial governments special census, which was conducted with the assistance of an NSO district census coordinator, it was agreed by the participants that the said result was not certified by the NSO, which is the requirement of the Local Government Code. Moreover, the NSO representative, Statistician II Ma. Solita C. Vergara, stated that based on their computation, the population requirement of 250,000 inhabitants would be attained by the Province of Dinagat Islands by the year 2065. The computation was based on the growth rate of the population, excluding migration. The pertinent portion of the deliberation on House Bill No. 884 creating the Province of Dinagat reads: THE CHAIRMAN (Hon. Alfredo S. Lim): . . . There is no problem with the land area requirement and to the income requirement. The problem is with the population requirement. xxxx Now because of this question, we would like to make it of record the stand and reply of National Statistics Office. Can we hear now from Ms. Solita Vergara? MS. VERGARA. We only certify population based on the counts proclaimed by the President. And in this case, we only certify the population based on the results of the 2000 census of population and housing. THE CHAIRMAN. Is that MS. VERGARA. Sir, as per Batas Pambansa, BP 72, we only follow kung ano po yong mandated by the law. So, as mandated by the law, we only certify those counts proclaimed official by the President. THE CHAIRMAN. But the government of Surigao del Norte is headed by Governor Robert Lyndon Ace Barbers and they conducted this census in year 2003 and yours was conducted in year 2000. So, within that time frame, three years, there could be an increase in population or transfer of residents, is that possible? MS. VERGARA. Yes, sir, but then we only conduct census of population every 10 years and we conduct special census every five years. So, in this case, maybe by next year, we will be conducting the 2006.
Navarro vs Ermita
THE CHAIRMAN. But next year will be quite a long time, the matter is now being discussed on the table. So, is that the only thing you could say that its not authorized by National Statistics Office? MS. VERGARA. Yes, sir. We have passed a resolutionorders to the provincial officesto our provincial offices stating that we can provide assistance in the conduct, but then we cannot certify the result of the conduct as official. THE CHAIRMAN. May we hear from the Honorable Governor Robert Lyndon Ace Barbers, your reply on the statement of the representative from National Statistics Office. MR. BARBERS. Thank you, Mr. Chairman, good morning. Yes, your Honor, we have conducted a special census in the year 2003. We were accompanied by one of the employees from the Provincial National Statistics Office. However, we also admit the fact that our special census or the special census we conducted in 2003 was not validated or certified by the National Statistics Office, as provided by law. So, we admit on our part that the certification that I have issued based on the submission of records of each locality or each municipality from Dinagat Island[s] were true and correct based on our level, not on National Statistics Office level. But with that particular objection of Executive Director Ericta on what we have conducted, I believe, your Honor, it will be, however, moot and academic in terms of the provision under the Local Government Code on the requirements in making one area a province because what we need is a minimum of 20 million, as stated by the Honorable Chairman and, of course, the land area. Now, in terms of the land area, Dinagat Island[s] is exempted because xxx the area is composed of more than one island. In fact, there are about 47 low tide and high tide, less than 40? xxxx THE CHAIRMAN. Thank you, Governor. xxxx xxxx THE CHAIRMAN. Although the claim of the governor is, even if we hold in abeyance this questioned requirement, the other two requirements, as mandated by law, is already achieved the income and the land area. MS. VERGARA. We do not question po the results of any locally conducted census, kasi po talagang we provide assistance while theyre conducting their own census. But then, ang requirement po kasi is, basta we will not certifywe will not certify any population count as a result noong kanilang locally conducted census. Eh, sa Local Government Code po, we all know na ang xxx nire-require nila is a certification provided by National Statistics Office. Yon po yong requirement, di ba po? THE CHAIRMAN. Oo. But a certification, even though not issued, cannot go against actual reality because thats just a bureaucratic requirement. Ang ibig kong sabihin, ipagpalagay, a couple isang lalaki, isang babae nagmamahalan sila. As an offshoot of this undying love, nagkaroon ng mga anak, hindi ba, pero hindi kasal, its a live-in situation. Ang tanong ko lang, whether eventually, they got married or not, that love remains. And we cannot deny also the existence of the offspring out of that love, di ba? Kayayon lang. Okay. So, we just skip on this.
Navarro vs Ermita
MS. VERGARA. Your Honor. REP. ECLEO (GLENDA). Mr. Chairman. THE CHAIRMAN. Please, Ms. Vergara. MS. VERGARA. Yong sinasabi nyo po, sir, bale we computed the estimated population po ng Dinagat Province for the next years. So, based on our computation, mari-reach po ng Dinagat Provinceyong requirement na 250,000 population by the year 2065 pa po based on the growth rates during the period of . THE CHAIRMAN. 2065? MS. VERGARA. 2065 po. xxxx THE CHAIRMAN. . . . [T]his is not the center of our argument since, as stated by the governor, kahit ha huwag na munang i-consider itong population requirement, eh, nakalagpas naman sila doon sa income and land area, hindi ba? Okay. Lets give the floor to Congresswoman Ecleo. REP. ECLEO (GLENDA). Thank you, Mr. Chairman. This is in connection with the special census. Before this was done, I went to the NSO. I talked to Administrator Ericta on the population. Then, I was told that the population, official population of Dinagat is 106,000. So, I told them that I want a special census to be conducted because there are so many houses that were not reached by the government enumerators, and I want to have my own or our own special census with the help of the provincial government. So, that is how it was conducted. Then, they told me that the official population of the proposed province will be on 2010. But at this moment, that is the official population of 106,000, even if our special census, we came up with 371,000 plus. So, that is it. THE CHAIRMAN. Thank you, Congresswoman. Your insights will be reflected in my reply to Senate President Drilon, so that he can also answer the letter of Bishop Cabahug. MS. VERGARA. Mr. Chairman, may clarifications lang din po ako. THE CHAIRMAN. Please. MS. VERGARA. Yon po sa sinasabi naming estimated population, we only based the computation doon sa growth rate lang po talaga, excluding the migration. xxxx MR. CHAIRMAN. Nong mga residents.
Navarro vs Ermita
MS. VERGARA. Yes, sir, natural growth lang po talaga siya.36 To reiterate, when the Dinagat Islands was proclaimed a new province on December 3, 2006, it had an official population of only 106,951 based on the NSO 2000 Census of Population. Less than a year after the proclamation of the new province, the NSO conducted the 2007 Census of Population. The NSO certified that as of August 1, 2007, Dinagat Islands had a total population of only 120,813,37 which was still below the minimum requirement of 250,000 inhabitants.38 In fine, R.A. No. 9355 failed to comply with either the territorial or the population requirement for the creation of the Province of Dinagat Islands. The Constitution clearly mandates that the creation of local government units must follow the criteria established in the Local Government Code.39 Any derogation of or deviation from the criteria prescribed in the Local Government Code violates Sec. 10, Art. X of the Constitution.40 Hence, R.A. No. 9355 is unconstitutional for its failure to comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local Government Code. Whether the creation of the Province of Dinagat Islands is an act of gerrymandering Petitioners contend that the creation of the Province of Dinagat Islands is an act of gerrymandering on the ground that House Bill No. 884 excluded Siargao Island, with a population of 118,534 inhabitants, from the new province for complete political dominance by Congresswoman Glenda Ecleo-Villaroman. According to petitioners, if Siargao were included in the creation of the new province, the territorial requirement of 2,000 square kilometers would have been easily satisfied and the enlarged area would have a bigger population of 200,305 inhabitants based on the 2000 Census of Population by the NSO. But House Bill No. 884 excluded Siargao Island, because its inclusion would result in uncertain political control. Petitioners aver that, in the past, Congresswoman Glenda Ecleo-Villaroman lost her congressional seat twice to a member of an influential family based in Siargao. Therefore, the only way to complete political dominance is by gerrymandering, to carve a new province in Dinagat Islands where the Philippine Benevolent Members Association (PMBA), represented by the Ecleos, has the numbers. The argument of petitioners is unsubstantiated. "Gerrymandering" is a term employed to describe an apportionment of representative districts so contrived as to give an unfair advantage to the party in power.41 Fr. Joaquin G. Bernas, a member of the 1986 Constitutional Commission, defined "gerrymandering" as the formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party.42 The Constitution proscribes gerrymandering, as it mandates each legislative district to comprise, as far as practicable, a contiguous, compact and adjacent territory.43 As stated by the Office of the Solicitor General, the Province of Dinagat Islands consists of one island and about 47 islets closely situated together, without the inclusion of separate territories. It is an unsubstantiated allegation that the province was created to favor Congresswoman Glenda EcleoVillaroman. Allegations of fraud and irregularities during the plebiscite cannot be resolved in a special civil action for certiorari
Navarro vs Ermita
Lastly, petitioners alleged that R.A. No. 9355 was ratified by a doubtful mandate in a plebiscite held on December 2, 2005, where the "yes votes" were 69,9343, while the "no votes" were 63,502. They contend that the 100% turnout of voters in the precincts of San Jose, Basilisa, Dinagat, Cagdianao and Libjo was contrary to human experience, and that the results were statistically improbable. Petitioners admit that they did not file any electoral protest questioning the results of the plebiscite, because they lacked the means to finance an expensive and protracted election case. Allegations of fraud and irregularities in the conduct of a plebiscite are factual in nature; hence, they cannot be the subject of this special civil action for certiorari under Rule 65 of the Rules of Court, which is a remedy designed only for the correction of errors of jurisdiction, including grave abuse of discretion amounting to lack or excess of jurisdiction.44 Petitioners should have filed the proper action with the Commission on Elections. However, petitioners admittedly chose not to avail themselves of the correct remedy. WHEREFORE, the petition is GRANTED. Republic Act No. 9355, otherwise known as [An Act Creating the Province of Dinagat Islands], is hereby declared unconstitutional. The proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared NULL and VOID. The provision in Article 9 (2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is declared NULL and VOID. No costs. SO ORDERED.
Bagabuyo vs Comelec
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 176970 December 8, 2008
ROGELIO Z. BAGABUYO, petitioner, vs. COMMISSION ON ELECTIONS, respondent. DECISION BRION, J.: Before us is the petition for certiorari, prohibition, and mandamus,1 with a prayer for the issuance of a temporary restraining order and a writ of preliminary injunction, filed by Rogelio Bagabuyo (petitioner) to prevent the Commission on Elections (COMELEC) from implementing Resolution No. 7837 on the ground that Republic Act No. 93712 - the law that Resolution No. 7837 implements - is unconstitutional. BACKGROUND FACTS On October 10, 2006, Cagayan de Oro's then Congressman Constantino G. Jaraula filed and sponsored House Bill No. 5859: "An Act Providing for the Apportionment of the Lone Legislative District of the City of Cagayan De Oro."3 This law eventually became Republic Act (R.A.) No. 9371.4 It increased Cagayan de Oro's legislative district from one to two. For the election of May 2007, Cagayan de Oro's voters would be classified as belonging to either the first or the second district, depending on their place of residence. The constituents of each district would elect their own representative to Congress as well as eight members of the Sangguniang Panglungsod. Section 1 of R.A. No. 9371 apportioned the City's barangays as follows: Legislative Districts - The lone legislative district of the City of Cagayan De Oro is hereby apportioned to commence in the next national elections after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth, Macasandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo, and Balubal and all urban barangays from Barangay 1 to Barangay 40 shall comprise the second district.5 On March 13, 2007, the COMELEC en Banc promulgated Resolution No. 78376 implementing R.A. No. 9371. Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on March 27, 2007.7 On 10 April 2008, the petitioner amended the petition to include the following as respondents: Executive Secretary Eduardo Ermita; the Secretary of the Department of Budget and Management;
Bagabuyo vs Comelec
the Chairman of the Commission on Audit; the Mayor and the members of the Sangguniang Panglungsod of Cagayan de Oro City; and its Board of Canvassers.8 In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on constitutional grounds, the petitioner argued that the COMELEC cannot implement R.A. No. 9371 without providing for the rules, regulations and guidelines for the conduct of a plebiscite which is indispensable for the division or conversion of a local government unit. He prayed for the issuance of an order directing the respondents to cease and desist from implementing R.A. No. 9371 and COMELEC Resolution No. 7837, and to revert instead to COMELEC Resolution No. 7801 which provided for a single legislative district for Cagayan de Oro. Since the Court did not grant the petitioner's prayer for a temporary restraining order or writ of preliminary injunction, the May 14 National and Local Elections proceeded according to R.A. No. 9371 and Resolution No. 7837. The respondent's Comment on the petition, filed through the Office of the Solicitor General, argued that: 1) the petitioner did not respect the hierarchy of courts, as the Regional Trial Court (RTC) is vested with concurrent jurisdiction over cases assailing the constitutionality of a statute; 2) R.A. No. 9371 merely increased the representation of Cagayan de Oro City in the House of Representatives and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution; 3) the criteria established under Section 10, Article X of the 1987 Constitution only apply when there is a creation, division, merger, abolition or substantial alteration of boundaries of a province, city, municipality, or barangay; in this case, no such creation, division, merger, abolition or alteration of boundaries of a local government unit took place; and 4) R.A. No. 9371 did not bring about any change in Cagayan de Oro's territory, population and income classification; hence, no plebiscite is required. The petitioner argued in his reply that: 1) pursuant to the Court's ruling in Del Mar v. PAGCOR,9 the Court may take cognizance of this petition if compelling reasons, or the nature and importance of the issues raised, warrant the immediate exercise of its jurisdiction; 2) Cagayan de Oro City's reapportionment under R.A. No. 9371 falls within the meaning of creation, division, merger, abolition or substantial alteration of boundaries of cities under Section 10, Article X of the Constitution; 3) the creation, division, merger, abolition or substantial alteration of boundaries of local government units involve a common denominator - the material change in the political and economic rights of the local government units directly affected, as well as of the people therein; 4) a voter's sovereign power to decide on who should be elected as the entire city's Congressman was arbitrarily reduced by at least one half because the questioned law and resolution only allowed him to vote and be voted for in the district designated by the COMELEC; 5) a voter was also arbitrarily denied his right to elect the Congressman and the members of the city council for the other legislative district, and 6) government funds were illegally disbursed without prior approval by the sovereign electorate of Cagayan De Oro City.10 THE ISSUES The core issues, based on the petition and the parties' memoranda, can be limited to the following contentious points: 1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant petition be dismissed on this ground? 2) Does R.A. No. 9371 merely provide for the legislative reapportionment of Cagayan de Oro City, or does it involve the division and conversion of a local government unit?
Bagabuyo vs Comelec
3) Does R.A. No. 9371 violate the equality of representation doctrine? OUR RULING Except for the issue of the hierarchy of courts rule, we find the petition totally without merit. The hierarchy of courts principle. The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, andhabeas corpus.11 It was pursuant to this original jurisdiction that the petitioner filed the present petition. While this jurisdiction is shared with the Court of Appeals12 and the RTCs,13 a direct invocation of the Supreme Court's jurisdiction is allowed only when there are special and important reasons therefor, clearly and especially set out in the petition. Reasons of practicality, dictated by an increasingly overcrowded docket and the need to prioritize in favor of matters within our exclusive jurisdiction, justify the existence of this rule otherwise known as the "principle of hierarchy of courts." More generally stated, the principle requires that recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with a higher court.14 Among the cases we have considered sufficiently special and important to be exceptions to the rule, are petitions for certiorari, prohibition, mandamus and quo warranto against our nation's lawmakers when the validity of their enactments is assailed.15 The present petition is of this nature; its subject matter and the nature of the issues raised - among them, whether legislative reapportionment involves a division of Cagayan de Oro City as a local government unit - are reasons enough for considering it an exception to the principle of hierarchy of courts. Additionally, the petition assails as well a resolution of the COMELEC en banc issued to implement the legislative apportionment that R.A. No. 9371 decrees. As an action against a COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court that in turn requires a review by this Court via a Rule 65 petition forcertiorari.16 For these reasons, we do not see the principle of hierarchy of courts to be a stumbling block in our consideration of the present case. The Plebiscite Requirement. The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de Oro as a local government unit, and does not merely provide for the City's legislative apportionment. This argument essentially proceeds from a misunderstanding of the constitutional concepts of apportionment of legislative districts and division of local government units. Legislative apportionment is defined by Black's Law Dictionary as the determination of the number of representatives which a State, county or other subdivision may send to a legislative body.17It is the allocation of seats in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the districts.18 Reapportionment, on the other hand, is the realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation.19 Article VI (entitled Legislative Department) of the 1987 Constitution lays down the rules on legislative apportionment under its Section 5 which provides: Sec. 5(1). (1) The House of Representatives shall be composed of not more than two hundred fifty members unless otherwise fixed by law, who shall be elected from legislative
Bagabuyo vs Comelec
districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a partylist system of registered national, regional and sectoral parties or organizations. xxx (3) Each legislative district shall comprise, as far as practicable, continuous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. Separately from the legislative districts that legal apportionment or reapportionment speaks of, are the local government units (historically and generically referred to as "municipal corporations") that the Constitution itself classified into provinces, cities, municipalities and barangays.20 In its strict and proper sense, a municipality has been defined as "a body politic and corporate constituted by the incorporation of the inhabitants of a city or town for the purpose of local government thereof."21 The creation, division, merger, abolition or alteration of boundary of local government units, i.e., of provinces, cities, municipalities, and barangays, are covered by the Article on Local Government (Article X). Section 10 of this Article provides: No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political unit directly affected. Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the authority to act has been vested in the Legislature. The Legislature undertakes the apportionment and reapportionment of legislative districts,22and likewise acts on local government units by setting the standards for their creation, division, merger, abolition and alteration of boundaries and by actually creating, dividing, merging, abolishing local government units and altering their boundaries through legislation. Other than this, not much commonality exists between the two provisions since they are inherently different although they interface and relate with one another. The concern that leaps from the text of Article VI, Section 5 is political representation and the means to make a legislative district sufficiently represented so that the people can be effectively heard. As above stated, the aim of legislative apportionment is "to equalize population and voting power among districts."23 Hence, emphasis is given to the number of people represented; the uniform and progressive ratio to be observed among the representative districts; and accessibility and commonality of interests in terms of each district being, as far as practicable, continuous, compact and adjacent territory. In terms of the people represented, every city with at least 250,000 people and every province (irrespective of population) is entitled to one representative. In this sense, legislative districts, on the one hand, and provinces and cities, on the other, relate and interface with each other. To ensure continued adherence to the required standards of apportionment, Section 5(4) specifically mandates reapportionment as soon as the given standards are met. In contrast with the equal representation objective of Article VI, Section 5, Article X, Section 10 expressly speaks of how local government units may be "created, divided, merged, abolished, or its boundary substantially altered." Its concern is the commencement, the termination, and the modification of local government units' corporate existence and territorial coverage; and it speaks of
Bagabuyo vs Comelec
two specific standards that must be observed in implementing this concern, namely, the criteria established in the local government code and the approval by a majority of the votes cast in a plebiscite in the political units directly affected. Under the Local Government Code (R.A. No. 7160) passed in 1991, the criteria of income, population and land area are specified as verifiable indicators of viability and capacity to provide services.24 The division or merger of existing units must comply with the same requirements (since a new local government unit will come into being), provided that a division shall not reduce the income, population, or land area of the unit affected to less than the minimum requirement prescribed in the Code.25 A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on the requirement of a plebiscite. The Constitution and the Local Government Code expressly require a plebiscite to carry out any creation, division, merger, abolition or alteration of boundary of a local government unit.26 In contrast, no plebiscite requirement exists under the apportionment or reapportionment provision. In Tobias v. Abalos,27 a case that arose from the division of the congressional district formerly covering San Juan and Mandaluyong into separate districts, we confirmed this distinction and the fact that no plebiscite is needed in a legislative reapportionment. The plebiscite issue came up because one was ordered and held for Mandaluyong in the course of its conversion into a highly urbanized city, while none was held for San Juan. In explaining why this happened, the Court ruled that no plebiscite was necessary for San Juan because the objective of the plebiscite was the conversion of Mandaluyong into a highly urbanized city as required by Article X, Section 10 the Local Government Code; the creation of a new legislative district only followed as a consequence. In other words, the apportionment alone and by itself did not call for a plebiscite, so that none was needed for San Juan where only a reapportionment took place. The need for a plebiscite under Article X, Section 10 and the lack of requirement for one under Article VI, Section 5 can best be appreciated by a consideration of the historical roots of these two provisions, the nature of the concepts they embody as heretofore discussed, and their areas of application. A Bit of History. In Macias v. COMELEC,28 we first jurisprudentially acknowledged the American roots of our apportionment provision, noting its roots from the Fourteenth Amendment29 of the U.S. Constitution and from the constitutions of some American states. The Philippine Organic Act of 1902 created the Philippine Assembly,30 the body that acted as the lower house of the bicameral legislature under the Americans, with the Philippine Commission acting as the upper house. While the members of the Philippine Commission were appointed by the U.S. President with the conformity of the U.S. Senate, the members of the Philippine Assembly were elected by representative districts previously delineated under the Philippine Organic Act of 1902 pursuant to the mandate to apportion the seats of the Philippine Assembly among the provinces as nearly as practicable according to population. Thus, legislative apportionment first started in our country. The Jones Law or the Philippine Autonomy Act of 1916 maintained the apportionment provision, dividing the country into 12 senate districts and 90 representative districts electing one delegate each to the House of Representatives. Section 16 of the Act specifically vested the Philippine Legislature with the authority to redistrict the Philippine Islands. Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative apportionment together with "district" as the basic unit of apportionment; the concern was "equality of representation . . . as an essential feature of republican institutions" as expressed in the leading case of Macias v. COMELEC.31 The case ruled that inequality of representation is a justiciable, not a political issue, which ruling was reiterated in Montejo v. COMELEC.32 Notably, no issue regarding the
Bagabuyo vs Comelec
holding of a plebiscite ever came up in these cases and the others that followed, as no plebiscite was required. Article VIII, Section 2 of the 1973 Constitution retained the concept of equal representation "in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio" with each district being, as far as practicable, contiguous, compact and adjacent territory. This formulation was essentially carried over to the 1987 Constitution, distinguished only from the previous one by the presence of party-list representatives. In neither Constitution was a plebiscite required. The need for a plebiscite in the creation, division, merger, or abolition of local government units was not constitutionally enshrined until the 1973 Constitution. However, as early as 1959, R.A. No. 226433 required, in the creation of barrios by Provincial Boards, that the creation and definition of boundaries be "upon petition of a majority of the voters in the areas affected." In 1961, the Charter of the City of Caloocan (R.A. No. 3278) carried this further by requiring that the "Act shall take effect after a majority of voters of the Municipality of Caloocan vote in favor of the conversion of their municipality into a city in a plebiscite." This was followed up to 1972 by other legislative enactments requiring a plebiscite as a condition for the creation and conversion of local government units as well as the transfer of sitios from one legislative unit to another.34 In 1973, the plebiscite requirement was accorded constitutional status. Under these separate historical tracks, it can be seen that the holding of a plebiscite was never a requirement in legislative apportionment or reapportionment. After it became constitutionally entrenched, a plebiscite was also always identified with the creation, division, merger, abolition and alteration of boundaries of local government units, never with the concept of legislative apportionment. Nature and Areas of Application. The legislative district that Article VI, Section 5 speaks of may, in a sense, be called a political unit because it is the basis for the election of a member of the House of Representatives and members of the local legislative body. It is not, however, a political subdivision through which functions of government are carried out. It can more appropriately be described as a representative unit that may or may not encompass the whole of a city or a province, but unlike the latter, it is not a corporate unit. Not being a corporate unit, a district does not act for and in behalf of the people comprising the district; it merely delineates the areas occupied by the people who will choose a representative in their national affairs. Unlike a province, which has a governor; a city or a municipality, which has a mayor; and a barangay, which has a punong barangay, a district does not have its own chief executive. The role of the congressman that it elects is to ensure that the voice of the people of the district is heard in Congress, not to oversee the affairs of the legislative district. Not being a corporate unit also signifies that it has no legal personality that must be created or dissolved and has no capacity to act. Hence, there is no need for any plebiscite in the creation, dissolution or any other similar action on a legislative district. The local government units, on the other hand, are political and corporate units. They are the territorial and political subdivisions of the state.35 They possess legal personality on the authority of the Constitution and by action of the Legislature. The Constitution defines them as entities that Congress can, by law, create, divide, abolish, merge; or whose boundaries can be altered based on standards again established by both the Constitution and the Legislature.36 A local government unit's corporate existence begins upon the election and qualification of its chief executive and a majority of the members of its Sanggunian.37
Bagabuyo vs Comelec
As a political subdivision, a local government unit is an "instrumentality of the state in carrying out the functions of government."38 As a corporate entity with a distinct and separate juridical personality from the State, it exercises special functions for the sole benefit of its constituents. It acts as "an agency of the community in the administration of local affairs"39 and the mediums through which the people act in their corporate capacity on local concerns.40 In light of these roles, the Constitution saw it fit to expressly secure the consent of the people affected by the creation, division, merger, abolition or alteration of boundaries of local government units through a plebiscite. These considerations clearly show the distinctions between a legislative apportionment or reapportionment and the division of a local government unit. Historically and by its intrinsic nature, a legislative apportionment does not mean, and does not even imply, a division of a local government unit where the apportionment takes place. Thus, the plebiscite requirement that applies to the division of a province, city, municipality or barangay under the Local Government Code should not apply to and be a requisite for the validity of a legislative apportionment or reapportionment. R.A. No. 9371 and COMELEC Res. No. 7837 R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in accordance with the authority granted to Congress under Article VI, Section 5(4) of the Constitution. Its core provision - Section 1 - provides: SECTION 1. Legislative Districts. - The lone legislative district of the City of Cagayan de Oro is hereby apportioned to commence in the next national elections after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth, Macansandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all urban barangays from Barangay 1 to Barangay 40 shall comprise the second district. Under these wordings, no division of Cagayan de Oro City as a political and corporate entity takes place or is mandated. Cagayan de Oro City politically remains a single unit and its administration is not divided along territorial lines. Its territory remains completely whole and intact; there is only the addition of another legislative district and the delineation of the city into two districts for purposes of representation in the House of Representatives. Thus, Article X, Section 10 of the Constitution does not come into play and no plebiscite is necessary to validly apportion Cagayan de Oro City into two districts. Admittedly, the legislative reapportionment carries effects beyond the creation of another congressional district in the city by providing, as reflected in COMELEC Resolution No. 7837, for additional Sangguniang Panglunsod seats to be voted for along the lines of the congressional apportionment made. The effect on the Sangguniang Panglunsod, however, is not directly traceable to R.A. No. 9371 but to another law - R.A. No. 663641 - whose Section 3 provides: SECTION 3. Other Cities. - The provision of any law to the contrary notwithstanding the City of Cebu, City of Davao, and any other city with more than one representative district shall have eight (8) councilors for each district who shall be residents thereof to be elected by the qualified voters therein, provided that the cities of Cagayan de Oro, Zamboanga, Bacolod, Iloilo and other cities comprising a representative district shall have twelve (12) councilors each and all other cities shall have ten (10) councilors each to be elected at large by the
Bagabuyo vs Comelec
qualified voters of the said cities: Provided, That in no case shall the present number of councilors according to their charters be reduced. However, neither does this law have the effect of dividing the City of Cagayan de Oro into two political and corporate units and territories. Rather than divide the city either territorially or as a corporate entity, the effect is merely to enhance voter representation by giving each city voter more and greater say, both in Congress and in the Sangguniang Panglunsod. To illustrate this effect, before the reapportionment, Cagayan de Oro had only one congressman and 12 city council members citywide for its population of approximately 500,000.42 By having two legislative districts, each of them with one congressman, Cagayan de Oro now effectively has two congressmen, each one representing 250,000 of the city's population. In terms of services for city residents, this easily means better access to their congressman since each one now services only 250,000 constituents as against the 500,000 he used to represent. The same goes true for the Sangguniang Panglungsod with its ranks increased from 12 to 16 since each legislative district now has 8 councilors. In representation terms, the fewer constituents represented translate to a greater voice for each individual city resident in Congress and in the Sanggunian; each congressman and each councilor represents both a smaller area and fewer constituents whose fewer numbers are now concentrated in each representative. The City, for its part, now has twice the number of congressmen speaking for it and voting in the halls of Congress. Since the total number of congressmen in the country has not increased to the point of doubling its numbers, the presence of two congressman (instead of one) from the same city cannot but be a quantitative and proportional improvement in the representation of Cagayan de Oro City in Congress. Equality of representation. The petitioner argues that the distribution of the legislative districts is unequal. District 1 has only 93,719 registered voters while District 2 has 127,071. District 1 is composed mostly of rural barangays while District 2 is composed mostly of urban barangays.43 Thus, R.A. No. 9371 violates the principle of equality of representation. A clarification must be made. The law clearly provides that the basis for districting shall be the number of the inhabitants of a city or a province, not the number of registered voters therein. We settled this very same question in Herrera v. COMELEC44 when we interpreted a provision in R.A. No. 7166 and COMELEC Resolution No. 2313 that applied to the Province of Guimaras. We categorically ruled that the basis for districting is the number of inhabitants of the Province of Guimaras by municipality based on the official 1995 Census of Population as certified to by Tomas P. Africa, Administrator of the National Statistics Office. The petitioner, unfortunately, did not provide information about the actual population of Cagayan de Oro City. However, we take judicial notice of the August 2007 census of the National Statistics Office which shows thatbarangays comprising Cagayan de Oro's first district have a total population of 254,644, while the second district has 299,322 residents. Undeniably, these figures show a disparity in the population sizes of the districts.45 The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation.46 In fact, for cities, all it asks is that "each city with a population of at least two hundred fifty thousand shall have one representative," while ensuring representation for every province regardless of the size of its population. To ensure quality representation through commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact, and adjacent territory. Thus, the Constitution leaves the local government units as they are found and does not require their division,
Bagabuyo vs Comelec
merger or transfer to satisfy the numerical standard it imposes. Its requirements are satisfied despite some numerical disparity if the units are contiguous, compact and adjacent as far as practicable. The petitioner's contention that there is a resulting inequality in the division of Cagayan de Oro City into two districts because the barangays in the first district are mostly rural barangays while the second district is mostly urban, is largely unsubstantiated. But even if backed up by proper proof, we cannot question the division on the basis of the difference in the barangays' levels of development or developmental focus as these are not part of the constitutional standards for legislative apportionment or reapportionment. What the components of the two districts of Cagayan de Oro would be is a matter for the lawmakers to determine as a matter of policy. In the absence of any grave abuse of discretion or violation of the established legal parameters, this Court cannot intrude into the wisdom of these policies.47 WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against the petitioner. SO ORDERED.
Ang Ladlad LGBT Party vs Comelec
Republic of the Philippines SUPREME COURT Baguio City EN BANC G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner, vs. COMMISSION ON ELECTIONS Respondent. DECISION DEL CASTILLO, J.: ... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. Justice Robert A. Jackson West Virginia State Board of Education v. Barnette1 One unavoidable consequence of everyone having the freedom to choose is that others may make different choices choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree and debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity and difference in opinion. Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox philosophical justifications about what is moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly. Factual Background This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated November 11, 20092 (the First Assailed Resolution) and December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELECs refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition5 for registration with the COMELEC. Before the COMELEC, petitioner argued that the LGBT community is a marginalized and underrepresented sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.6 Ang Ladlad laid out its national membership base consisting of individual members and organizational supporters, and outlined its platform of governance.7 On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that: x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus: x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity. and proceeded to define sexual orientation as that which: x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender." This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote: For this cause God gave them up into vile affections, for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was meet. In the Koran, the hereunder verses are pertinent: For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do mischief" (29:30). As correctly pointed out by the Law Department in its Comment dated October 2, 2008: The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par. 6F: Consensual partnerships or relationships by gays and lesbians who are already of age. It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or

MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah). Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied with for accreditation. ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any act, omission, establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or disregardsdecency or morality x x x It also collides with Article 1306 of the Civil Code: The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy are inexistent and void from the beginning. Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes Immoral doctrines, obscene publications and exhibitions and indecent shows as follows: Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: 1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals; 2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs,established policies, lawful orders, decrees and edicts. 3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it "or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections." Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to the youth." As an agency of the government, ours too is the States avowed duty under Section 13, Article II of the Constitution to protect our youth from moral and spiritual degradation.8

When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that: I. The Spirit of Republic Act No. 7941 Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly proven its under-representation and marginalization, it cannot be said that Ladlads expressed sexual orientations per se would benefit the nation as a whole. Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all representative organizations would have found themselves into the party-list race. But that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the realization of aspirations of marginalized individuals whose interests are also the nations only that their interests have not been brought to the attention of the nation because of their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is beneficial to the nation, its application for accreditation under the party-list system will remain just that. II. No substantial differentiation In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal equality of homosexual relations," as in the case of race or religion or belief. xxxx Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no denying that Ladlad constituencies are still males and females, and they will remain either male or female protected by the same Bill of Rights that applies to all citizens alike. xxxx IV. Public Morals x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there any attempt to any particular religious groups moral rules on Ladlad. Rather, what are being adopted as moral parameters and precepts are generally accepted public morals. They

are possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly accepted moral norms. V. Legal Provisions But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear from its Petitions paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who are already of age It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines "nuisance" as any act, omission x x x or anything else x x x which shocks, defies or disregards decency or morality x x x." These are all unlawful.10 On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010. On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment.12 Somewhat surprisingly, the OSG later filed a Comment in support of petitioners application.13 Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own comment.14 The COMELEC, through its Law Department, filed its Comment on February 2, 2010.15 In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist from implementing the Assailed Resolutions.16 Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the denial of Ang Ladladspetition on moral grounds violated the standards and principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to intervene. On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was granted on February 2, 2010.19 The Parties Arguments Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted violations of the Philippines international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners application for registration since there was no basis for COMELECs allegations of immorality. It also opined that LGBTs have their own special interests and concerns which should have been recognized by the COMELEC as a separate classification. However, insofar as the purported violations of petitioners freedom of speech, expression, and assembly were concerned, the OSG maintained that there had been no restrictions on these rights. In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by COMELECs field personnel. Our Ruling We grant the petition. Compliance with the Requirements of the Constitution and Republic Act No. 7941 The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration. Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,20 "the enumeration of marginalized and under-represented sectors is not exclusive". The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941. Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had nationwide existence through its members and affiliate organizations. The COMELEC claims that upon verification by its field personnel, it was shown that "save for a few isolated places in the country, petitioner does not exist in almost all provinces in the country."21 This argument that "petitioner made untruthful statements in its petition when it alleged its national existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it said that it or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioners accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioners alleged non-existence were already available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in respondents theory, and a serious violation of petitioners right to procedural due process. Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion group.22 Ang Ladlad also represented itself to be "a national

LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT networks:" Abra Gay Association Aklan Butterfly Brigade (ABB) Aklan Albay Gay Association Arts Center of Cabanatuan City Nueva Ecija Boys Legion Metro Manila Cagayan de Oro People Like Us (CDO PLUS) Cant Live in the Closet, Inc. (CLIC) Metro Manila Cebu Pride Cebu City Circle of Friends Dipolog Gay Association Zamboanga del Norte Gay, Bisexual, & Transgender Youth Association (GABAY) Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila Gay Mens Support Group (GMSG) Metro Manila Gay United for Peace and Solidarity (GUPS) Lanao del Norte Iloilo City Gay Association Iloilo City Kabulig Writers Group Camarines Sur Lesbian Advocates Philippines, Inc. (LEAP) LUMINA Baguio City Marikina Gay Association Metro Manila Metropolitan Community Church (MCC) Metro Manila Naga City Gay Association Naga City ONE BACARDI Order of St. Aelred (OSAe) Metro Manila

PUP LAKAN RADAR PRIDEWEAR Rainbow Rights Project (R-Rights), Inc. Metro Manila San Jose del Monte Gay Association Bulacan Sining Kayumanggi Royal Family Rizal Society of Transexual Women of the Philippines (STRAP) Metro Manila Soul Jive Antipolo, Rizal The Link Davao City Tayabas Gay Association Quezon Womens Bisexual Network Metro Manila Zamboanga Gay Association Zamboanga City23 Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlads principal place of business. Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof. Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof." At bottom, what our nonestablishment clause calls for is "government neutrality in religious matters."24 Clearly, "governmental reliance on religious justification is inconsistent with this policy of neutrality."25 We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor:26 x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular

terms." Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens.
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In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests.27 Public Morals as a Ground to Deny Ang Ladlads Petition for Registration Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues: Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because of the danger it poses to the people especially the youth. Once it is recognized by the government, a sector which believes that there is nothing wrong in having sexual relations with individuals of the same gender is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any society without a set of moral precepts is in danger of losing its own existence.28 We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally accepted public morals" have not been convincingly transplanted into the realm of law.29

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that "there should have been a finding by the COMELEC that the groups members have committed or are committing immoral acts."30 The OSG argues: x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full of disqualification cases against both the "straights" and the gays." Certainly this is not the intendment of the law.31 Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny. We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or morality," the remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings.32 A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability. As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondents blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal protection clause. Equal Protection Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be denied equal protection of the laws," courts have never interpreted the provision as an absolute prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of similar persons."33 The equal protection clause guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like circumstances.34 Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the classification as long as it bears a rational relationship to some legitimate government end.35 In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of analysis of equal protection

challenges x x x have followed the rational basis test, coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution."37 The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here that is, moral disapproval of an unpopular minority is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause. The COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a disfavored group. From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors. It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the party-list system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the OSGs position that homosexuals are a class in themselves for the purposes of the equal protection clause.38 We are not prepared to single out homosexuals as a separate class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly situated, and that the COMELEC made "an unwarranted and impermissible classification not justified by the circumstances of the case." Freedom of Expression and Association Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity of its position through normal democratic means.39 It is in the public square that deeply held convictions and differing opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor:40 In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies including protection of religious freedom "not only for a minority, however small not only for a majority, however large but for each of us" the

majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities. Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one. This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning ones homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well. Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality does not justify criminalizing same-sex conduct.41 European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international texts.42 To the extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Courts analysis. In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion, public institutions must show that their actions were caused by "something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."43 With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of association, even if such ideas may seem shocking or unacceptable to the authorities or the majority of the population.44 A political group should not be hindered solely because it seeks to publicly debate controversial political issues in order to find solutions capable of satisfying everyone concerned.45 Only if a political party incites violence or puts forward policies that are incompatible with democracy does it fall outside the protection of the freedom of association guarantee.46 We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community. Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this Decision will only serve to highlight the discrepancy between the rigid constitutional

analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality through this Decision. The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has been no restriction on their freedom of expression or association. The OSG argues that: There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section 4, Article III of the Constitution. xxxx A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a constitutionally-guaranteed right which cannot be limited. As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlads petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its members to fully and equally participate in public life through engagement in the party list elections. This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed by law. x x x47 The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system, and as advanced by the OSG itself the moral objection offered by the COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of COMELECs action, from publicly expressing its views as a political party and participating on an equal basis in the political process with other equally-qualified party-list candidates, we find that there has, indeed, been a transgression of petitioners fundamental rights. Non-Discrimination and International Law In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct. Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR. The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed to include "sexual orientation."48Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements.49 The UDHR provides: Article 21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. Likewise, the ICCPR states: Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows: 1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant.

xxxx 15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office.50 We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioners invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity),51 which petitioner declares to reflect binding principles of international law. At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.52 Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status. We also hasten to add that not everything that society or a certain segment of society wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are no longer controversial.
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Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are at best de lege ferenda and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris.53 As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Courts role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate. WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioners application for party-list accreditation. SO ORDERED.
Amores vs House of Representative Electoral Tribunal

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189600 June 29, 2010
MILAGROS E. AMORES, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and EMMANUEL JOEL J. VILLANUEVA,Respondents. DECISION CARPIO MORALES, J.: Via this petition for certiorari, Milagros E. Amores (petitioner) challenges the Decision of May 14, 2009 and Resolution No. 09-130 of August 6, 2009 of the House of Representatives Electoral Tribunal (public respondent), which respectively dismissed petitioners Petition for Quo Warranto questioning the legality of the assumption of office of Emmanuel Joel J. Villanueva (private respondent) as representative of the party-list organization Citizens Battle Against Corruption (CIBAC) in the House of Representatives, and denied petitioners Motion for Reconsideration. In her Petition for Quo Warranto1 seeking the ouster of private respondent, petitioner alleged that, among other things, private respondent assumed office without a formal proclamation issued by the Commission on Elections (COMELEC); he was disqualified to be a nominee of the youth sector of CIBAC since, at the time of the filing of his certificates of nomination and acceptance, he was already 31 years old or beyond the age limit of 30 pursuant to Section 9 of Republic Act (RA) No. 7941, otherwise known as the Party-List System Act; and his change of affiliation from CIBACs youth sector to its overseas Filipino workers and their families sector was not effected at least six months prior to the May 14, 2007 elections so as to be qualified to represent the new sector under Section 15 of RA No. 7941. Not having filed his Answer despite due notice, private respondent was deemed to have entered a general denial pursuant to public respondents Rules.2 As earlier reflected, public respondent, by Decision of May 14, 2009,3 dismissed petitioners Petition for Quo Warranto, finding that CIBAC was among the party-list organizations which the COMELEC had partially proclaimed as entitled to at least one seat in the House of Representatives through National Board of Canvassers (NBC) Resolution No. 07-60 dated July 9, 2007. It also found the petition which was filed on October 17, 2007 to be out of time, the reglementary period being 10 days from private respondents proclamation. Respecting the age qualification for youth sectoral nominees under Section 9 of RA No. 7941, public respondent held that it applied only to those nominated as such during the first three congressional terms after the ratification of the Constitution or until 1998, unless a sectoral party is thereafter registered exclusively as representing the youth sector, which CIBAC, a multi-sectoral organization, is not.

In the matter of private respondents shift of affiliation from CIBACs youth sector to its overseas Filipino workers and their families sector, public respondent held that Section 15 of RA No. 7941 did not apply as there was no resultant change in party-list affiliation. Her Motion for Reconsideration having been denied by Resolution No. 09-130 dated August 6, 2009,4 petitioner filed the present Petition for Certiorari.5 Petitioner contends that, among other things, public respondent created distinctions in the application of Sections 9 and 15 of RA No. 7941 that are not found in the subject provisions, fostering interpretations at war with equal protection of the laws; and NBC Resolution No. 07-60, which was a partial proclamation of winning party-list organizations, was not enough basis for private respondent to assume office on July 10, 2007, especially considering that he admitted receiving his own Certificate of Proclamation only on December 13, 2007. In his Comment,6 private respondent avers in the main that petitioner has not substantiated her claims of grave abuse of discretion against public respondent; and that he became a member of the overseas Filipinos and their families sector years before the 2007 elections. It bears noting that the term of office of party-list representatives elected in the May, 2007 elections will expire on June 30, 2010. While the petition has, thus, become moot and academic, rendering of a decision on the merits in this case would still be of practical value.7 The Court adopts the issues framed by public respondent, to wit: (1) whether petitioners Petition for Quo Warranto was dismissible for having been filed unseasonably; and (2) whether Sections 9 and 15 of RA No. 7941 apply to private respondent. On the first issue, the Court finds that public respondent committed grave abuse of discretion in considering petitioners Petition for Quo Warranto filed out of time. Its counting of the 10-day reglementary period provided in its Rules8 from the issuance of NBC Resolution No. 07-60 on July 9, 2007 is erroneous. To be sure, while NBC Resolution No. 07-60 partially proclaimed CIBAC as a winner in the May, 2007 elections, along with other party-list organizations,9 it was by no measure a proclamation of private respondent himself as required by Section 13 of RA No. 7941. Section 13. How Party-List Representatives are Chosen. Party-list representatives shall be proclaimed by the COMELEC based on the list of names submitted by the respective parties, organizations, or coalitions to the COMELEC according to their ranking in said list. AT ALL EVENTS, this Court set aside NBC Resolution No. 07-60 in Barangay Association for National Advancement and Transparency v. COMELEC10 after revisiting the formula for allocation of additional seats to party-list organizations. Considering, however, that the records do not disclose the exact date of private respondents proclamation, the Court overlooks the technicality of timeliness and rules on the merits. Alternatively, since petitioners challenge goes into private respondents qualifications, it may be filed at anytime during his term. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged.11

On the second and more substantial issue, the Court shall first discuss the age requirement for youth sector nominees under Section 9 of RA No. 7941 reading: Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1)year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term. (Emphasis and underscoring supplied.) The Court finds no textual support for public respondents interpretation that Section 9 applied only to those nominated during the first three congressional terms after the ratification of the Constitution or until 1998, unless a sectoral party is thereafter registered exclusively as representing the youth sector. A cardinal rule in statutory construction is that when the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation. There is only room for application.12 As the law states in unequivocal terms that a nominee of the youth sector must at least be twentyfive (25) but not more than thirty (30) years of age on the day of the election, so it must be that a candidate who is more than 30 on election day is not qualified to be a youth sector nominee. Since this mandate is contained in RA No. 7941, the Party-List System Act, it covers ALL youth sector nominees vying for party-list representative seats. As petitioner points out, RA No. 7941 was enacted only in March, 1995. There is thus no reason to apply Section 9 thereof only to youth sector nominees nominated during the first three congressional terms after the ratification of the Constitution in 1987. Under this interpretation, the last elections where Section 9 applied were held in May, 1995 or two months after the law was enacted. This is certainly not sound legislative intent, and could not have been the objective of RA No. 7941. There is likewise no rhyme or reason in public respondents ratiocination that after the third congressional term from the ratification of the Constitution, which expired in 1998, Section 9 of RA No. 7941 would apply only to sectoral parties registered exclusively as representing the youth sector. This distinction is nowhere found in the law. Ubi lex non distinguit nec nos distinguire debemus. When the law does not distinguish, we must not distinguish.13 Respecting Section 15 of RA No. 7941, the Court fails to find even an iota of textual support for public respondents ratiocination that the provision did not apply to private respondents shift of affiliation from CIBACs youth sector to its overseas Filipino workers and their families sector as there was no resultant change in party-list affiliation. Section 15 reads: Section 15. Change of Affiliation; Effect. Any elected party-list representative who changes his political party or sectoral affiliation during his term of office shall forfeit his seat: Provided, That if he changes his political party orsectoral affiliation within six (6) months before an election, he shall not be eligible for nomination as party-list representative under his new party or organization. (emphasis and underscoring supplied.)

What is clear is that the wording of Section 15 covers changes in both political party and sectoral affiliation. And the latter may occur within the same party since multi-sectoral party-list organizations are qualified to participate in the Philippine party-list system. Hence, a nominee who changes his sectoral affiliation within the same party will only be eligible for nomination under the new sectoral affiliation if the change has been effected at least six months before the elections. Again, since the statute is clear and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. This is the plain meaning rule or verba legis, as expressed in the maxim index animi sermo or speech is the index of intention.14 It is, therefore, beyond cavil that Sections 9 and 15 of RA No. 7941 apply to private respondent. The Court finds that private respondent was not qualified to be a nominee of either the youth sector or the overseas Filipino workers and their families sector in the May, 2007 elections. The records disclose that private respondent was already more than 30 years of age in May, 2007, it being stipulated that he was born in August, 1975.15 Moreover, he did not change his sectoral affiliation at least six months before May, 2007, public respondent itself having found that he shifted to CIBACs overseas Filipino workers and their families sector only on March 17, 2007.16
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That private respondent is the first nominee of CIBAC, whose victory was later upheld, is of no moment. A party-list organizations ranking of its nominees is a mere indication of preference, their qualifications according to law are a different matter. It not being contested, however, that private respondent was eventually proclaimed as a party-list representative of CIBAC and rendered services as such, he is entitled to keep the compensation and emoluments provided by law for the position until he is properly declared ineligible to hold the same.17 WHEREFORE, the petition is GRANTED. The Decision dated May 14, 2009 and Resolution No. 09130 dated August 6, 2009 of the House of Representatives Electoral Tribunal are SET ASIDE. Emmanuel Joel J. Villanueva is declared ineligible to hold office as a member of the House of Representatives representing the party-list organization CIBAC. SO ORDERED.
Lokin Jr. vs Comelec

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 179431-32 : June 22, 2010 LUIS K. LOKIN, JR., as the second nominee of CITIZENS BATTLE AGAINST CORRUPTION (CIBAC), Petitioner, vs.COMMISSION ON ELECTIONS and the HOUSE OF REPRESENTATIVES, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 180443 LUIS K. LOKIN, JR., Petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), EMMANUEL JOEL J. VILLANUEVA, CINCHONA C. GONZALES and ARMI JANE R. BORJE, Respondents. DECISION BERSAMIN, J.: The principal question posed in these consolidated special civil actions for certiorari and mandamus is whether the Commission on Elections (COMELEC) can issue implementing rules and regulations (IRRs) that provide a ground for the substitution of a party-list nominee not written in Republic Act (R.A.) No. 7941,1 otherwise known as the Party-List System Act, the law that the COMELEC thereby implements.
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Common Antecedents The Citizens' Battle Against Corruption (CIBAC) was one of the organized groups duly registered under the party-list system of representation that manifested their intent to participate in the May 14, 2007 synchronized national and local elections. Together with its manifestation of intent to participate,2 CIBAC, through its president, Emmanuel Joel J. Villanueva, submitted a list of five nominees from which its representatives would be chosen should CIBAC obtain the required number of qualifying votes. The nominees, in the order that their names appeared in the certificate of nomination dated March 29, 2007,3 were: (1) Emmanuel Joel J. Villanueva; (2) herein petitioner Luis K. Lokin, Jr.; (3) Cinchona C. Cruz-Gonzales; (4) Sherwin Tugna; and (5) Emil L. Galang. The nominees' certificates of acceptance were attached to the certificate of nomination filed by CIBAC. The list of nominees was later published in two newspapers of general circulation, The Philippine Star News4 (sic) and The Philippine Daily Inquirer.5
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Prior to the elections, however, CIBAC, still through Villanueva, filed a certificate of nomination, substitution and amendment of the list of nominees dated May 7, 2007,6 whereby it withdrew the nominations of Lokin, Tugna and Galang and substituted Armi Jane R. Borje as one of the nominees. The amended list of nominees of CIBAC thus included: (1) Villanueva, (2) Cruz-Gonzales, and (3) Borje.
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Following the close of the polls, or on June 20, 2007, Villanueva sent a letter to COMELEC Chairperson Benjamin Abalos,7 transmitting therewith the signed petitions of more than 81% of the CIBAC members, in order to confirm the withdrawal of the nomination of Lokin, Tugna and Galang and the substitution of Borje. In their petitions, the members of CIBAC averred that Lokin and Tugna were not among the nominees presented and proclaimed by CIBAC in its proclamation rally held in May 2007; and that Galang had signified his desire to focus on his family life.
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On June 26, 2007, CIBAC, supposedly through its counsel, filed with the COMELEC en banc sitting as the National Board of Canvassers a motion seeking the proclamation of Lokin as its second nominee.8 The right of CIBAC to a second seat as well as the right of Lokin to be thus proclaimed were purportedly based on Party-List Canvass Report No. 26, which showed CIBAC to have garnered a grand total of 744,674 votes. Using all relevant formulas, the motion asserted that CIBAC was clearly entitled to a second seat and Lokin to a proclamation.
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The motion was opposed by Villanueva and Cruz-Gonzales. Notwithstanding Villanueva's filing of the certificate of nomination, substitution and amendment of the list of nominees and the petitions of more than 81% of CIBAC members, the COMELEC failed to act on the matter, prompting Villanueva to file a petition to confirm the certificate of nomination, substitution and amendment of the list of nominees of CIBAC on June 28, 2007.9
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On July 6, 2007, the COMELEC issued Resolution No. 8219,10 whereby it resolved to set the matter pertaining to the validity of the withdrawal of the nominations of Lokin, Tugna and Galang and the substitution of Borje for proper disposition and hearing. The case was docketed as E.M. No. 07-054.
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In the meantime, the COMELEC en banc, sitting as the National Board of Canvassers, issued National Board of Canvassers (NBC) Resolution No. 07-60 dated July 9, 200711 to partially proclaim the following parties, organizations and coalitions participating under the Party-List System as having won in the May 14, 2007 elections, namely: Buhay Hayaan Yumabong, Bayan Muna, CIBAC, Gabriela Women's Party, Association of Philippine Electric Cooperatives, Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms, Inc., Akbayan! Citizen's Action Party, Alagad, Luzon Farmers Party, Cooperative-Natco Network Party, Anak Pawis, Alliance of Rural Concerns and Abono; and to defer the proclamation of the nominees of the parties, organizations and coalitions with pending disputes until final resolution of their respective cases.
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The COMELEC en banc issued another resolution, NBC Resolution No. 07-72 dated July 18, 2007,12 proclaiming Buhay Hayaan Yumabong as entitled to 2 additional seats and Bayan Muna, CIBAC, Gabriela Women's Party, and Association of Philippine Electric Cooperatives to an additional seat each; and holding in abeyance the proclamation of the nominees of said parties, organizations and coalitions with pending disputes until the final resolution of their respective cases.
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With the formal declaration that CIBAC was entitled to an additional seat, Ricardo de los Santos, purportedly as secretary general of CIBAC, informed Roberto P. Nazareno, Secretary General of the House of Representatives, of the promulgation of NBC Resolution No. 07-72 and requested that Lokin be formally sworn in by Speaker Jose de Venecia, Jr. to enable him to assume office. Nazareno replied, however, that the request of Delos Santos could not be granted because COMELEC Law Director Alioden D. Dalaig had notified him of the pendency of E.M. 07-054. On September 14, 2007, the COMELEC en banc resolved E.M. No. 07-05413 thuswise:
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WHEREFORE, considering the above discussion, the Commission hereby approves the withdrawal of the nomination of Atty. Luis K. Lokin, Sherwin N. Tugna and Emil Galang as second, third and fourth nominees respectively and the substitution thereby with Atty. Cinchona C. Cruz-Gonzales as second nominee and Atty. Armi Jane R. Borje as third nominee for the party list CIBAC. The new order of CIBAC's nominees therefore shall be:
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1. Emmanuel Joel J. Villanueva 2. Cinchona C. Cruz-Gonzales

3. Armi Jane R. Borje SO ORDERED. The COMELEC en banc explained that the actions of Villanueva in his capacity as the president of CIBAC were presumed to be within the scope of his authority as such; that the president was charged by Section 1 of Article IV of the CIBAC By-Laws to oversee and direct the corporate activities, which included the act of submitting the party's manifestation of intent to participate in the May 14, 2007 elections as well as its certificate of nominees; that from all indications, Villanueva as the president of CIBAC had always been provided the leeway to act as the party's representative and that his actions had always been considered as valid; that the act of withdrawal, although done without any written Board approval, was accomplished with the Board's acquiescence or at least understanding; and that the intent of the party should be given paramount consideration in the selection of the nominees. As a result, the COMELEC en banc proclaimed Cruz-Gonzales as the official second nominee of CIBAC.14 Cruz-Gonzales took her oath of office
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as a Party-List Representative of CIBAC on September 17, 2007.15
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Precs of the Consolidated Cases In G.R. No. 179431 and G.R. No. 179432, Lokin seeks through mandamus to compel respondent COMELEC to proclaim him as the official second nominee of CIBAC. In G.R. No. 180443, Lokin assails Section 13 of Resolution No. 7804 promulgated on January 12, 2007;16 and the resolution dated September 14, 2007 issued in E.M. No. 07-054 (approving CIBAC's withdrawal of the nominations of Lokin, Tugna and Galang as CIBAC's second, third and fourth nominees, respectively, and the substitution by Cruz-Gonzales and Borje in their stead, based on the right of CIBAC to change its nominees under Section 13 of Resolution No. 7804). 17 He alleges that Section 13 of Resolution No. 7804 expanded Section 8 of R.A. No. 7941.18 the law that the COMELEC seeks to thereby implement.
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In its comment, the COMELEC asserts that a petition for certiorari is an inappropriate recourse in law due to the proclamation of Cruz-Gonzales as Representative and her assumption of that office; that Lokin's proper recourse was an electoral protest filed in the House of Representatives Electoral Tribunal (HRET); and that, therefore, the Court has no jurisdiction over the matter being raised by Lokin. For its part, CIBAC posits that Lokin is guilty of forum shopping for filing a petition for mandamus and a petition for certiorari, considering that both petitions ultimately seek to have him proclaimed as the second nominee of CIBAC. Issues The issues are the following:
(a) Whether or not the Court has jurisdiction over the controversy; (b) Whether or not Lokin is guilty of forum shopping; (c) Whether or not Section 13 of Resolution No. 7804 is unconstitutional and violates the Party-List System Act; and

(d) Whether or not the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in approving the withdrawal of the nominees of CIBAC and allowing the amendment of the list of nominees of CIBAC without any basis in fact or law and after the close of the polls, and in ruling on matters that were intra-corporate in nature. Ruling The petitions are granted. A The Court has jurisdiction over the case The COMELEC posits that once the proclamation of the winning party-list organization has been done and its nominee has assumed office, any question relating to the election, returns and qualifications of the candidates to the House of Representatives falls under the jurisdiction of the HRET pursuant to Section 17, Article VI of the 1987 Constitution. Thus, Lokin should raise the question he poses herein either in an election protest or in a special civil action for quo warranto in the HRET, not in a special civil action for certiorari in this Court. We do not agree. An election protest proposes to oust the winning candidate from office. It is strictly a contest between the defeated and the winning candidates, based on the grounds of electoral frauds and irregularities, to determine who between them has actually obtained the majority of the legal votes cast and is entitled to hold the office. It can only be filed by a candidate who has duly filed a certificate of candidacy and has been voted for in the preceding elections. A special civil action for quo warranto refers to questions of disloyalty to the State, or of ineligibility of the winning candidate. The objective of the action is to unseat the ineligible person from the office, but not to install the petitioner in his place. Any voter may initiate the action, which is, strictly speaking, not a contest where the parties strive for supremacy because the petitioner will not be seated even if the respondent may be unseated. The controversy involving Lokin is neither an election protest nor an action for quo warranto, for it concerns a very peculiar situation in which Lokin is seeking to be seated as the second nominee of CIBAC. Although an election protest may properly be available to one party-list organization seeking to unseat another party-list organization to determine which between the defeated and the winning party-list organizations actually obtained the majority of the legal votes, Lokin's case is not one in which a nominee of a particular party-list organization thereby wants to unseat another nominee of the same party-list organization. Neither does an action for quo warranto lie, considering that the case does not involve the ineligibility and disloyalty of Cruz-Gonzales to the Republic of the Philippines, or some other cause of disqualification for her. Lokin has correctly brought this special civil action for certiorari against the COMELEC to seek the review of the September 14, 2007 resolution of the COMELEC in accordance with Section 7 of Article IX-A of the 1987 Constitution, notwithstanding the oath and assumption of office by Cruz-Gonzales. The constitutional mandate is now implemented by Rule 64 of the 1997 Rules of Civil Procedure, which provides for the review of the judgments, final orders or resolutions of the COMELEC and the Commission on Audit. As Rule 64 states, the mode of review is by a petition for certiorari in accordance with Rule 65 to be filed in the Supreme Court within a limited period of 30 days. Undoubtedly, the Court has original and exclusive jurisdiction over Lokin's petitions for certiorari and for mandamus against the COMELEC. B Petitioner is not guilty of forum shopping

Forum shopping consists of the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. Thus, forum shopping may arise: (a) whenever as a result of an adverse decision in one forum, a party seeks a favorable decision (other than by appeal or certiorari) in another; or (b) if, after having filed a petition in the Supreme Court, a party files another petition in the Court of Appeals, because he thereby deliberately splits appeals "in the hope that even as one case in which a particular remedy is sought is dismissed, another case (offering a similar remedy) would still be open"; or (c) where a party attempts to obtain a writ of preliminary injunction from a court after failing to obtain the writ from another court.19
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What is truly important to consider in determining whether forum shopping exists or not is the vexation caused to the courts and the litigants by a party who accesses different courts and administrative agencies to rule on the same or related causes or to grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by the different fora upon the same issue.20
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The filing of identical petitions in different courts is prohibited, because such act constitutes forum shopping, a malpractice that is proscribed and condemned as trifling with the courts and as abusing their processes. Forum shopping is an improper conduct that degrades the administration of justice. 21
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Nonetheless, the mere filing of several cases based on the same incident does not necessarily constitute forum shopping. The test is whether the several actions filed involve the same transactions and the same essential facts and circumstances.22 The actions must also raise identical causes of action, subject matter, and issues.23 Elsewise stated, forum shopping exists where the elements of litis pendentia are present, or where a final judgment in one case will amount to res judicata in the other.24
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Lokin has filed the petition for mandamus to compel the COMELEC to proclaim him as the second nominee of CIBAC upon the issuance of NBC Resolution No. 07-72 (announcing CIBAC's entitlement to an additional seat in the House of Representatives), and to strike down the provision in NBC Resolution No. 07-60 and NBC Resolution No. 07-72 holding in abeyance "all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases." He has insisted that the COMELEC had the ministerial duty to proclaim him due to his being CIBAC's second nominee; and that the COMELEC had no authority to exercise discretion and to suspend or defer the proclamation of winning party-list organizations with pending disputes. On the other hand, Lokin has resorted to the petition for certiorari to assail the September 14, 2007 resolution of the COMELEC (approving the withdrawal of the nomination of Lokin, Tugna and Galang and the substitution by Cruz-Gonzales as the second nominee and Borje as the third nominee); and to challenge the validity of Section 13 of Resolution No. 7804, the COMELEC's basis for allowing CIBAC's withdrawal of Lokin's nomination. Applying the test for forum shopping, the consecutive filing of the action for certiorari and the action for mandamus did not violate the rule against forum shopping even if the actions involved the same parties, because they were based on different causes of action and the reliefs they sought were different. C Invalidity of Section 13 of Resolution No. 7804 The legislative power of the Government is vested exclusively in the Legislature in accordance with the doctrine of separation of powers. As a general rule, the Legislature cannot surrender or abdicate its legislative power, for doing so will be unconstitutional. Although the power to make laws cannot be delegated by the Legislature to any other authority, a power that is not legislative in character may be delegated.25
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Under certain circumstances, the Legislature can delegate to executive officers and administrative boards the authority to adopt and promulgate IRRs. To render such delegation lawful, the Legislature must declare the policy of the law and fix the legal principles that are to control in given cases. The Legislature should set a definite or primary standard to guide those empowered to execute the law. For as long as the policy is laid down and a proper standard is established by statute, there can be no unconstitutional delegation of legislative power when the Legislature leaves to selected instrumentalities the duty of making subordinate rules within the prescribed limits, although there is conferred upon the executive officer or administrative board a large measure of discretion. There is a distinction between the delegation of power to make a law and the conferment of an authority or a discretion to be exercised under and in pursuance of the law, for the power to make laws necessarily involves a discretion as to what it shall be.26
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The authority to make IRRs in order to carry out an express legislative purpose, or to effect the operation and enforcement of a law is not a power exclusively legislative in character, but is rather administrative in nature. The rules and regulations adopted and promulgated must not, however, subvert or be contrary to existing statutes. The function of promulgating IRRs may be legitimately exercised only for the purpose of carrying out the provisions of a law. The power of administrative agencies is confined to implementing the law or putting it into effect. Corollary to this is that administrative regulation cannot extend the law and amend a legislative enactment. It is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere administrative rule issued for its implementation. Indeed, administrative or executive acts shall be valid only when they are not contrary to the laws or the Constitution.27
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To be valid, therefore, the administrative IRRs must comply with the following requisites to be valid: 28 1. Its promulgation must be authorized by the Legislature; 2. It must be within the scope of the authority given by the Legislature; 3. It must be promulgated in accordance with the prescribed procedure; and 4. It must be reasonable. The COMELEC is constitutionally mandated to enforce and administer all laws and regulations relative to the conduct of an election, a plebiscite, an initiative, a referendum, and a recall. 29 In addition to the powers and functions conferred upon it by the Constitution, the COMELEC is also charged to promulgate IRRs implementing the provisions of the Omnibus Election Code or other laws that the COMELEC enforces and administers.30
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The COMELEC issued Resolution No. 7804 pursuant to its powers under the Constitution, Batas Pambansa Blg. 881, and the Party-List System Act.31 Hence, the COMELEC met the first requisite.
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The COMELEC also met the third requisite. There is no question that Resolution No. 7804 underwent the procedural necessities of publication and dissemination in accordance with the procedure prescribed in the resolution itself. Whether Section 13 of Resolution No. 7804 was valid or not is thus to be tested on the basis of whether the second and fourth requisites were met. It is in this respect that the challenge of Lokin against Section 13 succeeds. As earlier said, the delegated authority must be properly exercised. This simply means that the resulting IRRs must not be ultra vires as to be issued beyond the limits of the authority conferred. It is basic that an administrative agency cannot amend an act of Congress,32 for administrative IRRs are solely intended to carry out, not to supplant or to modify, the law. The administrative agency issuing the IRRs may not enlarge, alter, or restrict the provisions of the law it administers and enforces, and cannot engraft additional non-contradictory requirements not contemplated by the Legislature.33
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Section 8 of R.A. No. 7941 reads:
Section 8. Nomination of Party-List Representatives.-Each registered party, organization or coalition shall submit to the COMELEC not later that forty-five (45) days before the election a list of names, not less than five (5), from which party-list representatives shall be chosen in case it obtains the required number of votes. A person may be nominated in one (1) list only. Only persons who have given their consent in writing may be named in the list. The list shall not include any candidate of any elective office or a person who has lost his bid for an elective office in the immediately preceding election. No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing his nomination, becomes incapacitated in which case the name of the substitute nominee shall be placed last in the list. Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned. The provision is daylight clear. The Legislature thereby deprived the party-list organization of the right to change its nominees or to alter the order of nominees once the list is submitted to the COMELEC, except when: (a) the nominee dies; (b) the nominee withdraws in writing his nomination; or (c) the nominee becomes incapacitated. The provision must be read literally because its language is plain and free from ambiguity, and expresses a single, definite, and sensible meaning. Such meaning is conclusively presumed to be the meaning that the Legislature has intended to convey. Even where the courts should be convinced that the Legislature really intended some other meaning, and even where the literal interpretation should defeat the very purposes of the enactment, the explicit declaration of the Legislature is still the law, from which the courts must not depart.34 When the law speaks in clear and categorical language, there is no reason for interpretation or construction, but only for application.35 Accordingly, an administrative agency tasked to implement a statute may not construe it by expanding its meaning where its provisions are clear and unambiguous.36
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The legislative intent to deprive the party-list organization of the right to change the nominees or to alter the order of the nominees was also expressed during the deliberations of the Congress, viz:
MR. LAGMAN: And again on Section 5, on the nomination of party list representatives, I do not see any provision here which prohibits or for that matter allows the nominating party to change the nominees or to alter the order of prioritization of names of nominees. Is the implication correct that at any time after submission the names could still be changed or the listing altered? MR. ABUEG: Mr. Speaker, that is a good issue brought out by the distinguished Gentleman from Albay and perhaps a perfecting amendment may be introduced therein. The sponsoring committee will gladly consider the same. MR. LAGMAN: In other words, what I would like to see is that after the list is submitted to the COMELEC officially, no more changes should be made in the names or in the order of listing. MR. ABUEG: Mr. Speaker, there may be a situation wherein the name of a particular nominee has been submitted to the Commission on Elections but before election day the nominee changed his political party affiliation. The nominee is therefore no longer qualified to be included in the party list and the political party has a perfect right to change the name of that nominee who changed his political party affiliation. MR. LAGMAN: Yes of course. In that particular case, the change can be effected but will be the exception rather than the rule. Another exception most probably is the nominee dies, then there has

to be a change but any change for that matter should always be at the last part of the list so that the prioritization made by the party will not be adversely affected.37
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The usage of "No" in Section 8 ' "No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing his nomination, or becomes incapacitated, in which case the name of the substitute nominee shall be placed last in the list" ' renders Section 8 a negative law, and is indicative of the legislative intent to make the statute mandatory. Prohibitive or negative words can rarely, if ever, be directory, for there is but one way to obey the command "thou shall not," and that is to completely refrain from doing the forbidden act,38 subject to certain exceptions stated in the law itself, like in this case.
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Section 8 does not unduly deprive the party-list organization of its right to choose its nominees, but merely divests it of the right to change its nominees or to alter the order in the list of its nominees' names after submission of the list to the COMELEC. The prohibition is not arbitrary or capricious; neither is it without reason on the part of lawmakers. The COMELEC can rightly presume from the submission of the list that the list reflects the true will of the party-list organization. The COMELEC will not concern itself with whether or not the list contains the real intended nominees of the party-list organization, but will only determine whether the nominees pass all the requirements prescribed by the law and whether or not the nominees possess all the qualifications and none of the disqualifications. Thereafter, the names of the nominees will be published in newspapers of general circulation. Although the people vote for the party-list organization itself in a party-list system of election, not for the individual nominees, they still have the right to know who the nominees of any particular party-list organization are. The publication of the list of the party-list nominees in newspapers of general circulation serves that right of the people, enabling the voters to make intelligent and informed choices. In contrast, allowing the party-list organization to change its nominees through withdrawal of their nominations, or to alter the order of the nominations after the submission of the list of nominees circumvents the voters' demand for transparency. The lawmakers' exclusion of such arbitrary withdrawal has eliminated the possibility of such circumvention. D Exceptions in Section 8 of R.A. 7941 are exclusive Section 8 of R.A. No. 7941 enumerates only three instances in which the party-list organization can substitute another person in place of the nominee whose name has been submitted to the COMELEC, namely: (a) when the nominee dies; (b) when the nominee withdraws in writing his nomination; and (c) when the nominee becomes incapacitated. The enumeration is exclusive, for, necessarily, the general rule applies to all cases not falling under any of the three exceptions. When the statute itself enumerates the exceptions to the application of the general rule, the exceptions are strictly but reasonably construed. The exceptions extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exceptions. Where the general rule is established by a statute with exceptions, none but the enacting authority can curtail the former. Not even the courts may add to the latter by implication, and it is a rule that an express exception excludes all others, although it is always proper in determining the applicability of the rule to inquire whether, in a particular case, it accords with reason and justice. 39
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The appropriate and natural office of the exception is to exempt something from the scope of the general words of a statute, which is otherwise within the scope and meaning of such general words. Consequently, the existence of an exception in a statute clarifies the intent that the statute shall apply to all cases not excepted. Exceptions are subject to the rule of strict construction; hence, any doubt will be resolved in favor of the general provision and against the exception. Indeed, the liberal construction of a statute will seem to require in many circumstances that the exception, by which the operation of the statute is limited or abridged, should receive a restricted construction.

E Section 13 of Resolution No. 7804 expanded the exceptions under Section 8 of R.A. No. 7941 Section 13 of Resolution No. 7804 states: Section 13. Substitution of nominees. ' A party-list nominee may be substituted only when he dies, or his nomination is withdrawn by the party, or he becomes incapacitated to continue as such, or he withdraws his acceptance to a nomination. In any of these cases, the name of the substitute nominee shall be placed last in the list of nominees. No substitution shall be allowed by reason of withdrawal after the polls. Unlike Section 8 of R.A. No. 7941, the foregoing regulation provides four instances, the fourth being when the "nomination is withdrawn by the party." Lokin insists that the COMELEC gravely abused its discretion in expanding to four the three statutory grounds for substituting a nominee. We agree with Lokin. The COMELEC, despite its role as the implementing arm of the Government in the enforcement and administration of all laws and regulations relative to the conduct of an election,40 has neither the authority nor the license to expand, extend, or add anything to the law it seeks to implement thereby. The IRRs the COMELEC issues for that purpose should always accord with the law to be implemented, and should not override, supplant, or modify the law. It is basic that the IRRs should remain consistent with the law they intend to carry out.41
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Indeed, administrative IRRs adopted by a particular department of the Government under legislative authority must be in harmony with the provisions of the law, and should be for the sole purpose of carrying the law's general provisions into effect. The law itself cannot be expanded by such IRRs, because an administrative agency cannot amend an act of Congress.42
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The COMELEC explains that Section 13 of Resolution No. 7804 has added nothing to Section 8 of R.A. No. 7941,43 because it has merely reworded and rephrased the statutory provision's phraseology.
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The explanation does not persuade. To reword means to alter the wording of or to restate in other words; to rephrase is to phrase anew or in a new form.44 Both terms signify that the meaning of the original word or phrase is not altered.
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However, the COMELEC did not merely reword or rephrase the text of Section 8 of R.A. No. 7941, because it established an entirely new ground not found in the text of the provision. The new ground granted to the party-list organization the unilateral right to withdraw its nomination already submitted to the COMELEC, which Section 8 of R.A. No. 7941 did not allow to be done. Neither was the grant of the unilateral right contemplated by the drafters of the law, who precisely denied the right to withdraw the nomination (as the quoted record of the deliberations of the House of Representatives has indicated). The grant thus conflicted with the statutory intent to save the nominee from falling under the whim of the party-list organization once his name has been submitted to the COMELEC, and to spare the electorate from the capriciousness of the party-list organizations. We further note that the new ground would not secure the object of R.A. No. 7941 of developing and guaranteeing a full, free and open party-list electoral system. The success of the system could only be ensured by avoiding any arbitrariness on the part of the party-list organizations, by seeing to the

transparency of the system, and by guaranteeing that the electorate would be afforded the chance of making intelligent and informed choices of their party-list representatives. The insertion of the new ground was invalid. An axiom in administrative law postulates that administrative authorities should not act arbitrarily and capriciously in the issuance of their IRRs, but must ensure that their IRRs are reasonable and fairly adapted to secure the end in view. If the IRRs are shown to bear no reasonable relation to the purposes for which they were authorized to be issued, they must be held to be invalid and should be struck down.45
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F Effect of partial nullity of Section 13 of Resolution No. 7804 An IRR adopted pursuant to the law is itself law.46 In case of conflict between the law and the IRR, the law prevails. There can be no question that an IRR or any of its parts not adopted pursuant to the law is no law at all and has neither the force nor the effect of law.47 The invalid rule, regulation, or part thereof cannot be a valid source of any right, obligation, or power.
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Considering that Section 13 of Resolution No. 7804 ' to the extent that it allows the party-list organization to withdraw its nomination already submitted to the COMELEC ' was invalid, CIBAC's withdrawal of its nomination of Lokin and the others and its substitution of them with new nominees were also invalid and ineffectual. It is clear enough that any substitution of Lokin and the others could only be for any of the grounds expressly stated in Section 8 of R.A. No. 7941. Resultantly, the COMELEC's approval of CIBAC's petition of withdrawal of the nominations and its recognition of CIBAC's substitution, both through its assailed September 14, 2007 resolution, should be struck down for lack of legal basis. Thereby, the COMELEC acted without jurisdiction, having relied on the invalidly issued Section 13 of Resolution No. 7804 to support its action. WHEREFORE, we grant the petitions for certiorari and mandamus. We declare Section 13 of Resolution No. 7804 invalid and of no effect to the extent that it authorizes a party-list organization to withdraw its nomination of a nominee once it has submitted the nomination to the Commission on Elections. Accordingly, we annul and set aside: (a) The resolution dated September 14, 2007 issued in E. M. No. 07-054 approving Citizens' Battle Against Corruption's withdrawal of the nominations of Luis K. Lokin, Jr., Sherwin N. Tugna, and Emil Galang as its second, third, and fourth nominees, respectively, and ordering their substitution by Cinchona C. Cruz-Gonzales as second nominee and Armi Jane R. Borje as third nominee; and (b) The proclamation by the Commission on Elections of Cinchona C. Cruz-Gonzales as a Party-List Representative representing Citizens' Battle Against Corruption in the House of Representatives. We order the Commission on Elections to forthwith proclaim petitioner Luis K. Lokin, Jr. as a Party-List Representative representing Citizens' Battle Against Corruption in the House of Representatives. We make no pronouncements on costs of suit. SO ORDERED.
Seneres vs. Comelec

BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT), Petitioner, vs. COMMISSION ON ELECTIONS (sitting as the National Board of Canvassers), Respondent. ARTS BUSINESS AND SCIENCE PROFESSIONALS, Intervenor. AANGAT TAYO, Intervenor. COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. (SENIOR CITIZENS),Intervenor. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179295 April 21, 2009
BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION, COOPERATION AND HARMONY TOWARDS EDUCATIONAL REFORMS, INC., and ABONO, Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. DECISION CARPIO, J.: The Case Petitioner in G.R. No. 179271 Barangay Association for National Advancement and Transparency (BANAT) in a petition for certiorari and mandamus,1 assails the Resolution2 promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The COMELECs resolution in NBC No. 07-041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the COMELEC En Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution. The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens). Petitioners in G.R. No. 179295 Bayan Muna, Abono, and Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms (A Teacher) in a petition for certiorari with mandamus and prohibition,3 assails NBC Resolution No. 07604 promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation of parties, organizations and coalitions that obtained at least two percent of the total votes cast under the PartyList System. The COMELEC announced that, upon completion of the canvass of the party-list
Seneres vs. Comelec

results, it would determine the total number of seats of each winning party, organization, or coalition in accordance with Veterans Federation Party v. COMELEC5 (Veterans). Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295. The Facts The 14 May 2007 elections included the elections for the party-list representatives. The COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System.6 On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its petition because "[t]he Chairman and the Members of the [COMELEC] have recently been quoted in the national papers that the [COMELEC] is duty bound to and shall implement the Veterans ruling, that is, would apply the Panganiban formula in allocating party-list seats."7 There were no intervenors in BANATs petition before the NBC. BANAT filed a memorandum on 19 July 2007. On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the party-list elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens Battle Against Corruption (CIBAC), Gabrielas Women Party (Gabriela), Association of Philippine Electric Cooperatives (APEC), A Teacher, Akbayan! Citizens Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns (ARC), and Abono. We quote NBC Resolution No. 07-60 in its entirety below: WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru its Sub-Committee for Party-List, as of 03 July 2007, had officially canvassed, in open and public proceedings, a total of fifteen million two hundred eighty three thousand six hundred fifty-nine (15,283,659) votes under the Party-List System of Representation, in connection with the National and Local Elections conducted last 14 May 2007; WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of Canvassers reveals that the projected/maximum total party-list votes cannot go any higher than sixteen million seven hundred twenty three thousand one hundred twenty-one (16,723,121) votes given the following statistical data: Projected/Maximum Party-List Votes for May 2007 Elections i. ii. Total party-list votes already canvassed/tabulated Total party-list votes remaining uncanvassed/ untabulated (i.e. canvass deferred) 15,283,659 1,337,032 102,430
iii. Maximum party-list votes (based on 100% outcome) from areas not yet submitted for canvass (Bogo, Cebu; Bais City; Pantar, Lanao del Norte; and Pagalungan, Maguindanao) Maximum Total Party-List Votes
16,723,121
Seneres vs. Comelec

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part: The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: provided, that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: provided, finally, that each party, organization, or coalition shall be entitled to not more than three (3) seats. WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the presumptive two percent (2%) threshold can be pegged at three hundred thirty four thousand four hundred sixty-two (334,462) votes; WHEREAS, the Supreme Court, in Citizens Battle Against Corruption (CIBAC) versus COMELEC, reiterated its ruling in Veterans Federation Party versus COMELEC adopting a formula for the additional seats of each party, organization or coalition receving more than the required two percent (2%) votes, stating that the same shall be determined only after all party-list ballots have been completely canvassed; WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three hundred thirty four thousand four hundred sixty-two (334,462) votes are as follows: RANK PARTY/ORGANIZATION/ VOTES COALITION RECEIVED 1 2 3 4 5 6 7 8 9 10 11 12 13 14 BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO BATAS ANAK PAWIS ARC ABONO 1,163,218 972,730 760,260 610,451 538,971 476,036 470,872 423,076 405,052 390,029 386,361 376,036 338,194 337,046
WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which anURGENT PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the Issuance of Restraining
Seneres vs. Comelec

Order) has been filed before the Commission, docketed as SPC No. 07-250, all the parties, organizations and coalitions included in the aforementioned list are therefore entitled to at least one seat under the party-list system of representation in the meantime. NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other election laws, the Commission on Elections, sittingen banc as the National Board of Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to certain conditions set forth below, the following parties, organizations and coalitions participating under the Party-List System: 1 2 3 4 5 6 Buhay Hayaan Yumabong Bayan Muna Citizens Battle Against Corruption Gabriela Womens Party Association of Philippine Electric Cooperatives Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms, Inc. Akbayan! Citizens Action Party Alagad Luzon Farmers Party BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER
7 8 9
AKBAYAN ALAGAD BUTIL COOP-NATCCO ANAKPAWIS ARC ABONO
10 Cooperative-Natco Network Party 11 Anak Pawis 12 Alliance of Rural Concerns 13 Abono
This is without prejudice to the proclamation of other parties, organizations, or coalitions which may later on be established to have obtained at least two percent (2%) of the total actual votes cast under the Party-List System. The total number of seats of each winning party, organization or coalition shall be determined pursuant toVeterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list results. The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) is hereby deferred until final resolution of SPC No. 07-250, in order not to render the proceedings therein moot and academic. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases.
Seneres vs. Comelec

Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED.8 (Emphasis in the original) Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC Resolution No. 07-72, which declared the additional seats allocated to the appropriate parties. We quote from the COMELECs interpretation of the Veterans formula as found in NBC Resolution No. 07-72: WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board of Canvassers proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on the presumptive two percent (2%) threshold of 334,462 votes from the projected maximum total number of party-list votes of 16,723,121, and were thus given one (1) guaranteed party-list seat each; WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National Board of Canvassers, the projected maximum total party-list votes, as of July 11, 2007, based on the votes actually canvassed, votes canvassed but not included in Report No. 29, votes received but uncanvassed, and maximum votes expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected maximum total votes for the thirteen (13) qualified parties, organizations and coalition[s] are as follows: Party-List 1 2 3 4 5 6 7 8 9 BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL Projected total number of votes 1,178,747 977,476 755,964 621,718 622,489 492,369 462,674 423,190 409,298 412,920 370,165 375,846 340,151
10 COOP-NATCO 11 12 13 ANAKPAWIS ARC ABONO
WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the highest number of votes among the thirteen (13) qualified parties, organizations and coalitions, making it the "first party" in accordance withVeterans Federation Party versus COMELEC, reiterated in Citizens Battle Against Corruption (CIBAC) versus COMELEC;
Seneres vs. Comelec

WHEREAS, qualified parties, organizations and coalitions participating under the party-list system of representation that have obtained one guaranteed (1) seat may be entitled to an additional seat or seats based on the formula prescribed by the Supreme Court in Veterans; WHEREAS, in determining the additional seats for the "first party", the correct formula as expressed in Veterans, is: Proportion of votes of first = party relative to total votes for Total votes for party-list system party-list system wherein the proportion of votes received by the first party (without rounding off) shall entitle it to additional seats: Proportion of votes received by the first party Equal to or at least 6% Equal to or greater than 4% but less than 6% Less than 4% Additional seats Two (2) additional seats One (1) additional seat No additional seat Number of votes of first party
WHEREAS, applying the above formula, Buhay obtained the following percentage: 1,178,747 = 0.07248 or 7.2% 16,261,369 which entitles it to two (2) additional seats. WHEREAS, in determining the additional seats for the other qualified parties, organizations and coalitions, the correct formula as expressed in Veterans and reiterated in CIBAC is, as follows: No. of votes of concerned party x No. of votes of first party
Additional seats for = a concerned party
No. of additional seats allocated to first party
WHEREAS, applying the above formula, the results are as follows: Party List BAYAN MUNA CIBAC GABRIELA Percentage 1.65 1.28 1.05 Additional Seat 1 1 1
Seneres vs. Comelec

APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO ANAKPAWIS ARC ABONO 1.05 0.83 0.78 0.71 0.69 0.69 0.62 0.63 0.57 1 0 0 0 0 0 0 0 0
NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws, the Commission on Elections en banc sitting as the National Board of Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the following parties, organizations or coalitions as entitled to additional seats, to wit: Party List BUHAY BAYAN MUNA CIBAC GABRIELA APEC Additional Seats 2 1 1 1 1
This is without prejudice to the proclamation of other parties, organizations or coalitions which may later on be established to have obtained at least two per cent (2%) of the total votes cast under the party-list system to entitle them to one (1) guaranteed seat, or to the appropriate percentage of votes to entitle them to one (1) additional seat. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy hereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED.9 Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August 2007, which reads as follows:
Seneres vs. Comelec

This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution filed by the Barangay Association for National Advancement and Transparency (BANAT). Acting on the foregoing Petition of the Barangay Association for National Advancement and Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers Legal Group submitted his comments/observations and recommendation thereon [NBC 07-041 (PL)], which reads: COMMENTS / OBSERVATIONS: Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution prayed for the following reliefs, to wit: 1. That the full number -- twenty percent (20%) -- of Party-List representatives as mandated by Section 5, Article VI of the Constitution shall be proclaimed. 2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes, should be harmonized with Section 5, Article VI of the Constitution and with Section 12 of the same RA 7941 in that it should be applicable only to the first party-list representative seats to be allotted on the basis of their initial/first ranking. 3. The 3-seat limit prescribed by RA 7941 shall be applied; and 4. Initially, all party-list groups shall be given the number of seats corresponding to every 2% of the votes they received and the additional seats shall be allocated in accordance with Section 12 of RA 7941, that is, in proportion to the percentage of votes obtained by each party-list group in relation to the total nationwide votes cast in the party-list election, after deducting the corresponding votes of those which were allotted seats under the 2% threshold rule. In fine, the formula/procedure prescribed in the "ALLOCATION OF PARTYLIST SEATS, ANNEX "A" of COMELEC RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of determining how many seats shall be proclaimed, which party-list groups are entitled to representative seats and how many of their nominees shall seat [sic]. 5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941 and that the procedure in allocating seats for party-list representative prescribed by Section 12 of RA 7941 shall be followed. R E C O M M E N D A T I O N: The petition of BANAT is now moot and academic. The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re "In the Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and Coalitions Participating Under the Party-List System During the May 14, 2007 National and Local Elections" resolved among others that the total number of seats of each winning party, organization or coalition shall be determined pursuant to the Veterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list results."
1awphi1
Seneres vs. Comelec

WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot and academic. Let the Supervisory Committee implement this resolution. SO ORDERED.10 BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88. On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 07-60 because the Veterans formula is violative of the Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the proceedings of the NBC.11 Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC proclaimed three other party-list organizations as qualified parties entitled to one guaranteed seat under the Party-List System: Agricultural Sector Alliance of the Philippines, Inc. (AGAP),12 Anak Mindanao (AMIN),13 and An Waray.14 Per the certification15 by COMELEC, the following party-list organizations have been proclaimed as of 19 May 2008: Party-List 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Buhay Bayan Muna CIBAC Gabriela APEC A Teacher Akbayan Alagad Butil No. of Seat(s) 3 2 2 2 2 1 1 1 1 1 1 1 1 1 1
1.10 Coop-Natco [sic] 1.11 Anak Pawis 1.12 ARC 1.13 Abono 1.14 AGAP 1.15 AMIN
The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an Urgent Petition for Cancellation/Removal of Registration and Disqualification of
Seneres vs. Comelec

Party-list Nominee (with Prayer for the Issuance of Restraining Order) has been filed before the COMELEC, was deferred pending final resolution of SPC No. 07-250. Issues BANAT brought the following issues before this Court: 1. Is the twenty percent allocation for party-list representatives provided in Section 5(2), Article VI of the Constitution mandatory or is it merely a ceiling? 2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold and "qualifier" votes prescribed by the same Section 11(b) of RA 7941 constitutional? 4. How shall the party-list representatives be allocated?16 Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their petition: I. Respondent Commission on Elections, acting as National Board of Canvassers, committed grave abuse of discretion amounting to lack or excess of jurisdiction when it promulgated NBC Resolution No. 07-60 to implement the First-Party Rule in the allocation of seats to qualified party-list organizations as said rule: A. Violates the constitutional principle of proportional representation. B. Violates the provisions of RA 7941 particularly: 1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for the "First Party" violates the principle of proportional representation under RA 7941. 2. The use of two formulas in the allocation of additional seats, one for the "First Party" and another for the qualifying parties, violates Section 11(b) of RA 7941. 3. The proportional relationships under the First Party Rule are different from those required under RA 7941; C. Violates the "Four Inviolable Parameters" of the Philippine party-list system as provided for under the same case of Veterans Federation Party, et al. v. COMELEC. II. Presuming that the Commission on Elections did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it implemented the First-Party Rule in the allocation of seats to qualified party-list organizations, the same being merely in consonance with the ruling in Veterans Federations Party, et al. v. COMELEC, the instant Petition is a justiciable case as the issues involved herein are constitutional in nature, involving the correct interpretation and implementation of RA 7941, and are of transcendental importance to our nation.17
Seneres vs. Comelec

Considering the allegations in the petitions and the comments of the parties in these cases, we defined the following issues in our advisory for the oral arguments set on 22 April 2008: 1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the Constitution mandatory or merely a ceiling? 2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat constitutional? 4. How shall the party-list representative seats be allocated? 5. Does the Constitution prohibit the major political parties from participating in the party-list elections? If not, can the major political parties be barred from participating in the party-list elections?18 The Ruling of the Court The petitions have partial merit. We maintain that a Philippine-style party-list election has at least four inviolable parameters as clearly stated in Veterans. For easy reference, these are: First, the twenty percent allocation the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list; Second, the two percent threshold only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to have a seat in the House of Representatives; Third, the three-seat limit each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats; Fourth, proportional representation the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes."19 However, because the formula in Veterans has flaws in its mathematical interpretation of the term "proportional representation," this Court is compelled to revisit the formula for the allocation of additional seats to party-list organizations. Number of Party-List Representatives: The Formula Mandated by the Constitution Section 5, Article VI of the Constitution provides: Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and
Seneres vs. Comelec

those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. The first paragraph of Section 11 of R.A. No. 7941 reads: Section 11. Number of Party-List Representatives. The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. xxx Section 5(1), Article VI of the Constitution states that the "House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law." The House of Representatives shall be composed of district representatives and party-list representatives. The Constitution allows the legislature to modify the number of the members of the House of Representatives.
1avv phi 1.zw+
Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list representatives to the total number of representatives. We compute the number of seats available to party-list representatives from the number of legislative districts. On this point, we do not deviate from the first formula in Veterans, thus: Number of seats available to legislative districts x .20 = .80 This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law. Since the 14th Congress of the Philippines has 220 district representatives, there are 55 seats available to party-list representatives. 220 x .20 = 55 .80 After prescribing the ratio of the number of party-list representatives to the total number of representatives, the Constitution left the manner of allocating the seats available to party-list representatives to the wisdom of the legislature. Allocation of Seats for Party-List Representatives: The Statutory Limits Presented by the Two Percent Threshold and the Three-Seat Cap
Number of seats available to party-list representatives
Seneres vs. Comelec

All parties agree on the formula to determine the maximum number of seats reserved under the Party-List System, as well as on the formula to determine the guaranteed seats to party-list candidates garnering at least two-percent of the total party-list votes. However, there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation of "additional seats" under the Party-List System. Veterans produced the First Party Rule,20 and Justice Vicente V. Mendozas dissent in Veterans presented Germanys Niemeyer formula21 as an alternative. The Constitution left to Congress the determination of the manner of allocating the seats for party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of Section 11 and Section 12 of which provide: Section 11. Number of Party-List Representatives. x x x In determining the allocation of seats for the second vote,22 the following procedure shall be observed: (a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Section 12. Procedure in Allocating Seats for Party-List Representatives. The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system. (Emphasis supplied) In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate party-list representative seats. The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2% requirement with Section 12 of R.A. No. 7941. BANAT described this procedure as follows: (a) The party-list representatives shall constitute twenty percent (20%) of the total Members of the House of Representatives including those from the party-list groups as prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District Representatives in the 14th Congress, there shall be 55 Party-List Representatives. All seats shall have to be proclaimed. (b) All party-list groups shall initially be allotted one (1) seat for every two per centum (2%) of the total party-list votes they obtained; provided, that no party-list groups shall have more than three (3) seats (Section 11, RA 7941). (c) The remaining seats shall, after deducting the seats obtained by the party-list groups under the immediately preceding paragraph and after deducting from their total the votes corresponding to those seats, the remaining seats shall be allotted proportionately to all the
Seneres vs. Comelec

party-list groups which have not secured the maximum three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA 7941.23 Forty-four (44) party-list seats will be awarded under BANATs first interpretation. The second interpretation presented by BANAT assumes that the 2% vote requirement is declared unconstitutional, and apportions the seats for party-list representatives by following Section 12 of R.A. No. 7941. BANAT states that the COMELEC: (a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis; (b) rank them according to the number of votes received; and, (c) allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization or coalition as against the total nationwide votes cast for the party-list system.24 BANAT used two formulas to obtain the same results: one is based on the proportional percentage of the votes received by each party as against the total nationwide party-list votes, and the other is "by making the votes of a party-list with a median percentage of votes as the divisor in computing the allocation of seats."25 Thirty-four (34) party-list seats will be awarded under BANATs second interpretation. In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELECs original 2-46 formula and the Veterans formula for systematically preventing all the party-list seats from being filled up. They claim that both formulas do not factor in the total number of seats alloted for the entire Party-List System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but accept the 2% threshold. After determining the qualified parties, a second percentage is generated by dividing the votes of a qualified party by the total votes of all qualified parties only. The number of seats allocated to a qualified party is computed by multiplying the total party-list seats available with the second percentage. There will be a first round of seat allocation, limited to using the whole integers as the equivalent of the number of seats allocated to the concerned party-list. After all the qualified parties are given their seats, a second round of seat allocation is conducted. The fractions, or remainders, from the whole integers are ranked from highest to lowest and the remaining seats on the basis of this ranking are allocated until all the seats are filled up.26 We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives. Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the highest to the lowest based on the number of votes they garnered during the elections. Table 1. Ranking of the participating parties from the highest to the lowest based on the number of votes garnered during the elections.27 Votes Garnered Votes Garnered 88,868 79,386
Rank 1 2 BUHAY
Party
Rank KALAHI APOI
Party
1,169,234 48 979,039 49
BAYAN MUNA
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3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD COOP-NATCCO BUTIL BATAS ARC ANAKPAWIS ABONO AMIN AGAP AN WARAY YACAP FPJPM UNI-MAD ABS KAKUSA KABATAAN ABA-AKO ALIF SENIOR CITIZENS AT VFP ANAD BANAT ANG KASANGGA BANTAY 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058 197,872 196,266 188,521 177,028 170,531 169,801 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 BP AHONBAYAN BIGKIS PMAP AKAPIN PBA GRECON BTM A SMILE NELFFI AKSA BAGO BANDILA AHON ASAHAN MO AGBIAG! SPI BAHANDI ADD AMANG ABAY PARAK BABAE KA SB ASAP PEP ABA ILONGGO VENDORS ADD-TRIBAL ALMANA AANGAT KA PILIPINO 78,541 78,424 77,327 75,200 74,686 71,544 62,220 60,993 58,717 57,872 57,012 55,846 54,751 54,522 51,722 50,837 50,478 46,612 45,624 43,062 42,282 36,512 34,835 34,098 33,938 33,903 33,691 32,896 32,255 29,130
Seneres vs. Comelec

33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 ABAKADA 1-UTAK TUCP COCOFED AGHAM ANAK ABANSE! PINAY PM AVE SUARA ASSALAM DIWA ANC SANLAKAS ABC 166,747 164,980 162,647 155,920 146,032 141,817 130,356 119,054 110,769 110,732 110,440 107,021 99,636 97,375 90,058 80 81 82 83 84 85 86 87 88 89 90 91 92 93 AAPS HAPI AAWAS SM AG AGING PINOY APO BIYAYANG BUKID ATS UMDJ BUKLOD FILIPINA LYPAD AA-KASOSYO KASAPI TOTAL 26,271 25,781 22,946 20,744 16,916 16,729 16,421 16,241 14,161 9,445 8,915 8,471 8,406 6,221 15,950,900
The first clause of Section 11(b) of R.A. No. 7941 states that "parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each." This clause guarantees a seat to the two-percenters. In Table 2 below, we use the first 20 party-list candidates for illustration purposes. The percentage of votes garnered by each party is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for all party-list candidates. Table 2. The first 20 party-list candidates and their respective percentage of votes garnered over the total votes for the party-list.28 Votes Garnered over Total Votes for Party-List, in % 7.33% 6.14% 4.74% 3.89% 3.88% 3.07% 1 1 1 1 1 1
Rank 1 2 3 4 5 6 BUHAY
Party
Votes Garnered 1,169,234 979,039 755,686 621,171 619,657 490,379
Guaranteed Seat
BAYAN MUNA CIBAC GABRIELA APEC A TEACHER
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7 8 9 10 11 12 13 14 15 16 17 AKBAYAN ALAGAD COOP-NATCCO BUTIL BATAS29 ARC ANAKPAWIS ABONO AMIN AGAP AN WARAY Total 18 19 20 YACAP FPJPM UNI-MAD 310,889 300,923 245,382 1.95% 1.89% 1.54% 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02% 1 1 1 1 1 1 1 1 1 1 1 17 0 0 0
From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number of votes cast for party-list candidates. The 17 qualified party-list candidates, or the twopercenters, are the party-list candidates that are "entitled to one seat each," or the guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed seats. The second clause of Section 11(b) of R.A. No. 7941 provides that "those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes." This is where petitioners and intervenors problem with the formula in Veterans lies. Veterans interprets the clause "in proportion to their total number of votes" to be in proportion to the votes of the first party. This interpretation is contrary to the express language of R.A. No. 7941. We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives. To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party list elections. A party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the available party-list
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seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of parties get two percent of the votes for every party, it is always impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present. We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of "the broadest possible representation of party, sectoral or group interests in the House of Representatives."30 In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed: 1. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. 2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each. 3. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated. 4. Each party, organization, or coalition shall be entitled to not more than three (3) seats. In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as "additional seats" are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats. In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats in Table 3 below to the two-percenters. The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for party-list candidates. There are two steps in the second round of seat allocation. First, the percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the remaining available seats corresponds to a partys share in the remaining available seats. Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each qualified party-list candidate is entitled. Thus: Table 3. Distribution of Available Party-List Seats Votes Guaranteed Additional (B) plus Applying Garnered Seat Seats (C), in Votes the three over (First (Second whole Garnered seat cap Total Round) Round) integers (E) Votes for (B) (C) (D)
Rank
Party
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Party List, in % (A) 1 2 3 4 5 6 7 8 931 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 BUHAY BAYAN MUNA CIBAC GABRIELA APEC A Teacher AKBAYAN ALAGAD COOPNATCCO BUTIL BATAS ARC 1,169,234 7.33% 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02% 1.95% 1.89% 1.54% 1.47% 1.44% 1.43% 1.37% 1.37% 1.34% 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 2.79 2.33 1.80 1.48 1.48 1.17 1.11 1.01 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 3 3 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 1 1 1 1 1 1 1 1 1 N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A.
ANAKPAWIS 370,261 ABONO AMIN AGAP AN WARAY YACAP FPJPM UNI-MAD ABS KAKUSA KABATAAN ABA-AKO ALIF SENIOR CITIZENS 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058
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27 28 29 30 31 32 33 34 35 36 Total AT VFP ANAD BANAT ANG KASANGGA BANTAY ABAKADA 1-UTAK TUCP COCOFED 197,872 196,266 188,521 177,028 170,531 169,801 166,747 164,980 162,647 155,920 1.24% 1.23% 1.18% 1.11% 1.07% 1.06% 1.05% 1.03% 1.02% 0.98% 0 0 0 0 0 0 0 0 0 0 17 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 55 N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A.
Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-list representatives from the 36 winning party-list organizations. All 55 available party-list seats are filled. The additional seats allocated to the parties with sufficient number of votes for one whole seat, in no case to exceed a total of three seats for each party, are shown in column (D). Participation of Major Political Parties in Party-List Elections The Constitutional Commission adopted a multi-party system that allowed all political parties to participate in the party-list elections. The deliberations of the Constitutional Commission clearly bear this out, thus: MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. x x x We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit within the 50 allocated under the party list system. x x x. xxx MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My question is this: Are we going to classify for example Christian Democrats and Social Democrats as political parties? Can they run under the party list concept or must they be under the district legislation side of it only? MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can field candidates for the Senate as well as for the House of Representatives. Likewise, they can also field sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we are allocating under the party list system.
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MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also participate in the party list system? MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only sectoral candidates. MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system? MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different marginalized sectors that we shall designate in this Constitution. MR. MONSOD. Suppose Senator Taada wants to run under BAYAN group and says that he represents the farmers, would he qualify? MR. VILLACORTA. No, Senator Taada would not qualify. MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or not? MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly minority political parties, are not prohibited to participate in the party list election if they can prove that they are also organized along sectoral lines. MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is precisely the contention of political parties that they represent the broad base of citizens and that all sectors are represented in them. Would the Commissioner agree? MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang party list system. Gusto ko lamang bigyan ng diin ang "reserve." Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties. MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned from running under the party list system? MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO may be allowed to register for the party list system. MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer? MR. TADEO. The same. MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines. xxxx MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties and mass organizations to seek common ground. For example, we have the PDP-Laban and the UNIDO. I see no reason why they should not be able to make common goals with mass organizations so that the very leadership of these parties can be transformed through the participation of mass organizations.
Seneres vs. Comelec

And if this is true of the administration parties, this will be true of others like the Partido ng Bayan which is now being formed. There is no question that they will be attractive to many mass organizations. In the opposition parties to which we belong, there will be a stimulus for us to contact mass organizations so that with their participation, the policies of such parties can be radically transformed because this amendment will create conditions that will challenge both the mass organizations and the political parties to come together. And the party list system is certainly available, although it is open to all the parties. It is understood that the parties will enter in the roll of the COMELEC the names of representatives of mass organizations affiliated with them. So that we may, in time, develop this excellent system that they have in Europe where labor organizations and cooperatives, for example, distribute themselves either in the Social Democratic Party and the Christian Democratic Party in Germany, and their very presence there has a transforming effect upon the philosophies and the leadership of those parties. It is also a fact well known to all that in the United States, the AFL-CIO always vote with the Democratic Party. But the businessmen, most of them, always vote with the Republican Party, meaning that there is no reason at all why political parties and mass organizations should not combine, reenforce, influence and interact with each other so that the very objectives that we set in this Constitution for sectoral representation are achieved in a wider, more lasting, and more institutionalized way. Therefore, I support this [Monsod-Villacorta] amendment. It installs sectoral representation as a constitutional gift, but at the same time, it challenges the sector to rise to the majesty of being elected representatives later on through a party list system; and even beyond that, to become actual political parties capable of contesting political power in the wider constitutional arena for major political parties. x x x 32 (Emphasis supplied) R.A. No. 7941 provided the details for the concepts put forward by the Constitutional Commission. Section 3 of R.A. No. 7941 reads: Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections (COMELEC). Component parties or organizations of a coalition may participate independently provided the coalition of which they form part does not participate in the party-list system. (b) A party means either a political party or a sectoral party or a coalition of parties. (c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office. It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. (d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interests and concerns of their sector, (e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns.
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(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the party-list elections. Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list system. On the contrary, the framers of the Constitution clearly intended the major political parties to participate in party-list elections through their sectoral wings. In fact, the members of the Constitutional Commission voted down, 19-22, any permanent sectoral seats, and in the alternative the reservation of the party-list system to the sectoral groups.33 In defining a "party" that participates in party-list elections as either "a political party or a sectoral party," R.A. No. 7941 also clearly intended that major political parties will participate in the party-list elections. Excluding the major political parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the exclusion of major political parties from the party-list elections in patent violation of the Constitution and the law. Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major political parties are allowed to establish, or form coalitions with, sectoral organizations for electoral or political purposes. There should not be a problem if, for example, the Liberal Party participates in the party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can thus organize, or affiliate with, their chosen sector or sectors. To further illustrate, the Nacionalista Party can establish a fisherfolk wing to participate in the party-list election, and this fisherfolk wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban poor. The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941: Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the elections, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue until the expiration of his term. Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organizations nominee "wallow in poverty, destitution and infirmity"34 as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors,35 that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen. Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-list representatives found in the Constitution. The Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the number of the members of the House of Representatives to Congress: "The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, x x x." The 20% allocation of party-list representatives is merely a ceiling; party-list representatives cannot be more than 20% of the members of the House of
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Representatives. However, we cannot allow the continued existence of a provision in the law which will systematically prevent the constitutionally allocated 20% party-list representatives from being filled. The three-seat cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a valid statutory device that prevents any party from dominating the party-list elections. Seats for party-list representatives shall thus be allocated in accordance with the procedure used in Table 3 above. However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections, directly or indirectly. Those who voted to continue disallowing major political parties from the party-list elections joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate party-list seats, the Court is unanimous in concurring with this ponencia. WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the distribution of additional party-list seats. The allocation of additional seats under the Party-List System shall be in accordance with the procedure used in Table 3 of this Decision. Major political parties are disallowed from participating in party-list elections. This Decision is immediately executory. No pronouncement as to costs. SO ORDERED.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 179271 July 8, 2009
BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT), Petitioner, vs. COMMISSION ON ELECTIONS (sitting as the National Board of Canvassers), Respondent. ARTS BUSINESS AND SCIENCE PROFESSIONALS, Intervenor. AANGAT TAYO, Intervenor. COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. (SENIOR CITIZENS),Intervenor. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179295 BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION, COOPERATION AND HARMONY TOWARDS EDUCATIONAL REFORMS, INC., and ABONO, Petitioners,
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vs. COMMISSION ON ELECTIONS, Respondent. RESOLUTION CARPIO, J.: The House of Representatives, represented by Speaker Prospero C. Nograles, filed a motion for leave to intervene in G.R. Nos. 179271 and 179295. The House of Representatives filed a motion for clarification in intervention and enumerated the issues for clarification as follows: A. There are only 219 legislative districts and not 220. Accordingly, the alloted seats for party-list representation should only be 54 and not 55. The House of Representatives seeks clarification on which of the party-list representatives shall be admitted to the Roll of Members considering that the Court declared as winners 55 party-list representatives. B. The House of Representatives wishes to be guided on whether it should enroll in its Roll of Members the 32 named party-list representatives enumerated in Table 3 or only such number of representatives that would complete the 250 member maximum prescribed by Article VI, Sec. 5(1) of the Constitution. In the event that it is ordered to admit all 32, will this act not violate the above-cited Constitutional provision considering that the total members would now rise to 270. C. The Court declared as unconstitutional the 2% threshold only in relation to the distribution of additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. Yet, it distributed first seats to party-list groups which did not attain the minimum number of votes that will entitle them to one seat. Clarification is, therefore, sought whether the term "additional seats" refer to 2nd and 3rd seats only or all remaining available seats. Corollary thereto, the House of Representatives wishes to be clarified whether there is no more minimum vote requirement to qualify as a party-list representative. D. For the guidance of the House of Representatives, clarification is sought as to whether the principle laid down in Veterans that "the filling up of the allowable seats for party-list representatives is not mandatory," has been abandoned.1 On the other hand, Armi Jane Roa-Borje (Roa-Borje), third nominee of Citizens Battle Against Corruption (CIBAC), filed a motion for leave for partial reconsideration-in-intervention, alleging that: The Supreme Court, in ruling on the procedure for distribution of seats, has deprived without due process and in violation of the equal protection clause, parties with more significant constituencies, such as CIBAC, Gabriela and APEC, in favor of parties who did not even meet the 2% threshold.2 Following the Courts Decision of 21 April 2009, the Commission on Elections (COMELEC) submitted to this Court on 27 April 2009 National Board of Canvassers (NBC) Resolution No. 09001. NBC Resolution No. 09-001 updated the data used by this Court in its Decision of 21 April 2009. The total votes for party-list is now 15,723,764 following the cancellation of the registration of party-list group Filipinos for Peace, Justice and Progress Movement (FPJPM). Moreover, the total number of legislative districts is now 219 following the annulment of Muslim Mindanao Autonomy Act No. 201 creating the province of Shariff Kabunsuan. Thus, the percentage and ranking of the actual winning party-list groups are different from Table 3 of the Decision in G.R. Nos. 179271 and 179295.
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The Number of Members of the House of Representatives in the 2007 Elections Section 5(1), Article VI of the 1987 Constitution reads: The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (Emphasis supplied) The 1987 Constitution fixes the maximum number of members of the House of Representatives at 250. However, the 1987 Constitution expressly allows for an increase in the number of members of the House of Representatives provided a law is enacted for the purpose. This is clear from the phrase "unless otherwise provided by law" in Section 5(1), Article VI of the 1987 Constitution. The Legislature has the option to choose whether the increase in the number of members of the House of Representatives is done by piecemeal legislation or by enactment of a law authorizing a general increase. Legislation that makes piecemeal increases of the number of district representatives is no less valid than legislation that makes a general increase. In 1987, there were only 200 legislative districts. Twenty legislative districts were added by piecemeal legislation after the ratification of the 1987 Constitution: Republic Act 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 7160 7675 7854 7878 7896 and 7897 7926 8470 8487 8526 9229 9230 8508 and 9232 9232 9269 9355 9357 Year Signed into Law 1992 1994 1994 1995 1995 1995 1998 1998 1998 2003 2003 1998 and 2003 2003 2004 2006 2006 Legislative District Biliran Mandaluyong City Makati (2nd District) Apayao Guimaras Muntinlupa City Compostela Valley Taguig City (2nd District) Valenzuela City (2nd District) Paraaque (2nd District) San Jose del Monte City Antipolo (1st District) Antipolo (2nd District) Zamboanga City (2nd District) Dinagat Island Sultan Kudarat (2nd District)
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17 18 19 20 9360 9364 9371 9387 2006 2006 2007 2007 Zamboanga Sibugay (2nd District) Marikina City (2nd District) Cagayan de Oro (2nd District) Navotas City
Thus, for purposes of the 2007 elections, there were only 219 district representatives. Navotas City became a separate district on 24 June 2007, more than a month after the 14 May 2007 elections. The Number of Party-List Seats in the 2007 Elections Section 5(2), Article VI of the 1987 Constitution reads in part: The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. x x x The 1987 Constitution fixes the ratio of party-list representatives to district representatives. This ratio automatically applies whenever the number of district representatives is increased by law. The mathematical formula for determining the number of seats available to party-list representatives is Number of seats available to legislative districts .80 As we stated in our Decision of 21 April 2009, "[t]his formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law." Thus, for every four district representatives, the 1987 Constitution mandates that there shall be one party-list representative. There is no need for legislation to create an additional party-list seat whenever four additional legislative districts are created by law. Section 5(2), Article VI of the 1987 Constitution automatically creates such additional party-list seat. We use the table below to illustrate the relationship between the number of legislative districts and the number of party-list seats for every election year after 1987. Number of Legislative Districts 200 206 New Districts: Biliran Mandaluyong City Makati (2nd District) Apayao Number of Party-List Seats 50 51 Total Number of Members of the House of Representatives 250 257
.20
Number of seats available to party-list representatives
Election Year 1992 1995
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Guimaras Muntinlupa City 1998 209 New Districts: Compostela Valley Taguig City (2nd District) Valenzuela City (2nd District) 2001 2004 209 214 New Districts: Paraaque City (2nd District) San Jose del Monte City Antipolo (1st District) Antipolo (2nd District) Zamboanga City (2nd District) 2007 219 New Districts: Dinagat Island Sultan Kudarat (2nd District) Zamboanga Sibugay (2nd District) Marikina City (2nd District) Cagayan de Oro (2nd District) 2010 220 New District: Navotas City (assuming no additional districts are created) We see that, as early as the election year of 1995, the total number of members of the House of Representatives is already beyond the initial maximum of 250 members as fixed in the 1987 Constitution. 55 275 54 273 52 53 261 267 52 261
Seneres vs. Comelec

Any change in the number of legislative districts brings a corresponding change in the number of party-list seats. However, the increase in the number of members of the House of Representatives went unnoticed as the available seats for party-list representatives have never been filled up before. As of the oral arguments in G.R. Nos. 179271 and 179295, there were 220 legislative districts. Fiftyfive party-list seats were thus allocated. However, the number of legislative districts was subsequently reduced to 219 with our ruling on 16 July 2008 declaring void the creation of the Province of Sharif Kabunsuan.3 Thus, in the 2007 elections, the number of party-list seats available for distribution should be correspondingly reduced from 55 to 54. The filling-up of all available party-list seats is not mandatory. Actual occupancy of the party-list seats depends on the number of participants in the party-list election. If only ten parties participated in the 2007 party-list election, then, despite the availability of 54 seats, the maximum possible number of occupied party-list seats would only be 30 because of the three-seat cap. In such a case, the three-seat cap prevents the mandatory allocation of all the 54 available seats. Under Section 11(b) of R.A. No. 7941, garnering 2% of the total votes cast guarantees a party one seat. This 2% threshold for the first round of seat allocation does not violate any provision of the 1987 Constitution. Thus, the Court upholds this 2% threshold for the guaranteed seats as a valid exercise of legislative power.
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In the second round allocation of additional seats, there is no minimum vote requirement to obtain a party-list seat because the Court has struck down the application of the 2% threshold in the allocation of additional seats. Specifically, the provision in Section 11(b) of the Party-List Act stating that "those garnering more than two percent (2%) of the votes shall be entitled to additional seats in the proportion to their total number of votes" can no longer be given any effect. Otherwise, the 20 percent party-list seats in the total membership of the House of Representatives as provided in the 1987 Constitution will mathematically be impossible to fill up. However, a party-list organization has to obtain a sufficient number of votes to gain a seat in the second round of seat allocation. What is deemed a sufficient number of votes is dependent upon the circumstances of each election, such as the number of participating parties, the number of available party-list seats, and the number of parties with guaranteed seats received in the first round of seat allocation. To continue the example above, if only ten parties participated in the 2007 party-list election and each party received only one thousand votes, then each of the ten parties would receive 10% of the votes cast. All are guaranteed one seat, and are further entitled to receive two more seats in the second round of seat allocation. Similarly, a presidential candidate may win the elections even if he receives only one thousand votes as long as all his opponents receive less than one thousand votes. A winning presidential candidate only needs to receive more votes than his opponents. The same policy applies in every election to public office, from the presidential to the barangay level. Except for the guaranteed party-list seat, there is no minimum vote requirement before a candidate in any election, for any elective office, can be proclaimed the winner. Of course, the winning candidate must receive at least one vote, assuming he has no opponents or all his opponents do not receive a single vote. In the absence of a minimum vote requirement in the second round of party-list seat allocation, there is no need to belabor the disparity between the votes obtained by the first and last ranked winning parties in the 2007 party-list elections. In the same manner, no one belabors the disparity between the votes obtained by the highest and lowest ranked winners in the senatorial elections. However, for those interested in comparing the votes received by party-list representatives vis-a-vis the votes received by district representatives, the 162,678 votes cast in favor of TUCP, the last party to obtain
Seneres vs. Comelec

a party-list seat, is significantly higher than the votes received by 214 of the 218 elected district representatives.4 The Actual Number of Party-List Representatives in the 2007 Elections The data used in Table 3 of our Decision promulgated on 21 April 2009 was based on the submissions of the parties. We used the figures from Party-List Canvass Report No. 32, as of 6:00 p.m. of 31 August 2007. The NBC issued NBC Report No. 33 on 11 June 2008, updating the 31 August 2007 report. The parties did not furnish this Court with a copy of NBC Report No. 33. In any case, we stated in the dispositive portion of our Decision that "[t]he allocation of additional seats under the Party-List System shall be in accordance with the procedureused in Table 3 of this decision." Party-List Canvass Report No. 32 is not part of the procedure.
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The computation of the COMELEC in NBC No. 09-001 applying the procedure laid down in our Decision requires correction for purposes of accuracy. Instead of multiplying the percentage of votes garnered over the total votes for party-list by 36, the COMELEC multiplied the percentage by 37. Thirty-six is the proper multiplier as it is the difference between 54, the number of available party-list seats, and 18, the number of guaranteed seats. Only the figures in column (C) are affected. The allocation of seats to the winning party-list organizations, however, remains the same as in NBC No. 09-001. Our modification of the COMELECs computation in NBC No. 09-001 is shown below: Votes Garnered over Total Votes for Party List, in % (A) 7.44% 6.23% 4.81% 3.95% 3.94% 3.12% 2.97% 2.69% 2.61% 2.60% 2.45%
Rank
Party
Votes Garnered
Guaranteed Seat (First Round) (B) 1 1 1 1 1 1 1 1 1 1 1
Additional Seats (Second Round) (C) 2.68 2.24 1.73 1.42 1.42 1.12 1.07 1 1 1 1 3 3 2 2 2 2 2 2 2 2 2
(B) plus (C), in whole integers (D)
Applying the three seat cap (E)
1 2 3 4 5 6 7 85 9 10 11
BUHAY BAYAN MUNA CIBAC GABRIELA APEC A Teacher AKBAYAN ALAGAD COOPNATCCO BUTIL BATAS
1,169,338 979,189 755,735 621,266 619,733 490,853 466,448 423,165 409,987 409,168 385,956
N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A.
Seneres vs. Comelec

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 ARC ANAKPAWIS AMIN ABONO YACAP AGAP AN WARAY UNI-MAD ABS ALIF KAKUSA KABATAAN ABA-AKO SENIOR CITIZENS AT VFP ANAD BANAT ANG KASANGGA BANTAY ABAKADA 1-UTAK TUCP COCOFED 374,349 370,323 347,527 340,002 331,623 328,814 321,516 251,804 235,152 229,267 229,036 228,700 219,363 213,095 200,030 196,358 188,573 177,068 170,594 169,869 166,897 165,012 162,678 156,007 Total 2.38% 2.36% 2.21% 2.16% 2.11% 2.09% 2.04% 1.60% 1.50% 1.46% 1.46% 1.45% 1.40% 1.36% 1.27% 1.25% 1.20% 1.13% 1.08% 1.08% 1.06% 1.05% 1.03% 0.99% 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 18 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 0 2 2 2 2 2 2 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 0 54 N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A.
Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) and Ang Laban ng Indiginong Filipino (ALIF) both have pending cases before the COMELEC. The COMELEC correctly deferred the proclamation of both BATAS and ALIF as the outcome of their cases may affect the final composition of party-list representatives. The computation and allocation of seats may still be modified in the event that the COMELEC decides against BATAS and/or ALIF.
Seneres vs. Comelec

To address Roa-Borjes motion for partial reconsideration-in-intervention and for purposes of computing the results in future party-list elections, we reiterate that in the second step of the second round of seat allocation, the preference in the distribution of seats should be in accordance with the higher percentage and higher rank, without limiting the distribution to parties receiving two-percent of the votes.6 To limit the distribution of seats to the two-percenters would mathematically prevent the filling up of all the available party-list seats. In the table above, CIBAC cannot claim a third seat from the seat allocated to TUCP, the last ranked party allocated with a seat. CIBAC's 2.81% (from the percentage of 4.81% less the 2% for its guaranteed seat) has a lower fractional seat value after the allocation of its second seat compared to TUCP's 1.03%. CIBAC's fractional seat after receiving two seats is only 0.03 compared to TUCP's 0.38 fractional seat. Multiplying CIBAC's 2.81% by 37, the additional seats for distribution in the second round, gives 1.03 seat, leaving 0.03 fractional seat. Multiplying TUCP's 1.03% by 37 gives a fractional seat of 0.38, higher than CIBAC's fractional seat of 0.03. The fractional seats become material only in the second step of the second round of seat allocation to determine the ranking of parties. Thus, for purposes of the second step in the second round of seat allocation,7 TUCP has a higher rank than CIBAC. Roa-Borjes position stems from the perceived need for absolute proportionality in the allocation of party-list seats. However, the 1987 Constitution does not require absolute proportionality in the allocation of party-list seats. Section 5(1), Article VI of the 1987 Constitution provides: (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties and organizations. (Boldfacing and italicization supplied) The phrase "legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" in Section 5(1) of Article VI requires that legislative districts shall be apportioned according to proportional representation. However, this principle of proportional representation applies only to legislative districts, not to the party-list system. The allocation of seats under the party-list system is governed by the last phrase of Section 5(1), which states that the party-list representatives shall be "those who, as provided by law, shall be elected through a party-list system," giving the Legislature wide discretion in formulating the allocation of party-list seats. Clearly, there is no constitutional requirement for absolute proportional representation in the allocation of party-list seats in the House of Representatives. Section 2, on Declaration of Policy, of R.A. No. 7941 provides that the "State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof x x x." However, this proportional representation in Section 2 is qualified by Section 11(b)8 of the same law which mandates a three-seat cap, which is intended to bar any single partylist organization from dominating the party-list system. Section 11(b) also qualifies this proportional representation by imposing a two percent cut-off for those entitled to the guaranteed seats. These statutory qualifications are valid because they do not violate the Constitution, which does not require absolute proportional representation for the party-list system.
Seneres vs. Comelec

To summarize, there are four parameters in a Philippine-style party-list election system: 1. Twenty percent of the total number of the membership of the House of Representatives is the maximum number of seats available to party-list organizations, such that there is automatically one party-list seat for every four existing legislative districts. 2. Garnering two percent of the total votes cast in the party-list elections guarantees a partylist organization one seat. The guaranteed seats shall be distributed in a first round of seat allocation to parties receiving at least two percent of the total party-list votes. 3. The additional seats, that is, the remaining seats after allocation of the guaranteed seats, shall be distributed to the party-list organizations including those that received less than two percent of the total votes. The continued operation of the two percent threshold as it applies to the allocation of the additional seats is now unconstitutional because this threshold mathematically and physically prevents the filling up of the available party-list seats. The additional seats shall be distributed to the parties in a second round of seat allocation according to the two-step procedure laid down in the Decision of 21 April 2009 as clarified in this Resolution. 4. The three-seat cap is constitutional. The three-seat cap is intended by the Legislature to prevent any party from dominating the party-list system. There is no violation of the Constitution because the 1987 Constitution does not require absolute proportionality for the party-list system. The well-settled rule is that courts will not question the wisdom of the Legislature as long as it is not violative of the Constitution. These four parameters allow the mathematical and practical fulfillment of the Constitutional provision that party-list representatives shall comprise twenty percent of the members of the House of Representatives. At the same time, these four parameters uphold as much as possible the Party-List Act, striking down only that provision of the Party-List Act that could not be reconciled anymore with the 1987 Constitution. WHEREFORE, the Courts Decision of 21 April 2009 in the present case is clarified accordingly. SO ORDERED.
Seneres vs. Comelec

DR. HANS CHRISTIAN M. SEERES, Petitioner, vs. COMMISSION ON ELECTIONS and MELQUIADES A. ROBLES, Respondents. DECISION VELASCO, JR., J.: The Case Before us is a Petition for Certiorari1 under Rule 65 with a prayer for a temporary restraining order and/or preliminary injunction to nullify and enjoin the implementation of the Resolution2 dated July 19, 2007 of the Commission on Elections (COMELEC), which declared respondent Melquiades Robles (Robles) as the President of Buhay Hayaan Yumabong (Buhay). The Undisputed Facts In 1999, private respondent Robles was elected president and chairperson of Buhay, a party-list group duly registered with COMELEC.3 The constitution of BUHAY provides for a three-year term for all its party officers, without re-election.4 BUHAY participated in the 2001 and 2004 elections, with Robles as its president. All the required Manifestations of Desire to Participate in the said electoral exercises, including the Certificates of Nomination of representatives, carried the signature of Robles as president of BUHAY.5 On January 26, 2007, in connection with the May 2007 elections, BUHAY again filed a Manifestation of its Desire to Participate in the Party-List System of Representation.6 As in the past two elections, the manifestation to participate bore the signature of Robles as BUHAY president. On March 29, 2007, Robles signed and filed a Certificate of Nomination of BUHAYs nominees for the 2007 elections containing the following names: (i) Rene M. Velarde, (ii) Ma. Carissa Coscolluela, (iii) William Irwin C. Tieng, (iv) Melchor R. Monsod, and (v) Teresita B. Villarama. Earlier, however, or on March 27, 2007, petitioner Hans Christian Seeres, holding himself up as acting president and secretary-general of BUHAY, also filed a Certificate of Nomination with the COMELEC, nominating: (i) himself, (ii) Hermenegildo C. Dumlao, (iii) Antonio R. Bautista, (iv) Victor Pablo C. Trinidad, and (v) Eduardo C. Solangon, Jr.7 Consequently, on April 17, 2007, Seeres filed with the COMELEC a Petition to Deny Due Course to Certificates of Nomination.8 In it, petitioner Seeres alleged that he was the acting president and secretary-general of BUHAY, having assumed that position since August 17, 2004 when Robles vacated the position. Pushing the point, Seeres would claim that the nominations made by Robles were, for lack of authority, null and void owing to the expiration of the latters term as party president. Furthermore, Seeres asserted that Robles was, under the Constitution,9 disqualified from being an officer of any political party, the latter being the Acting Administrator of the Light Railway Transport Authority (LRTA), a government-controlled corporation. Robles, so Seeres would charge, was into
Seneres vs. Comelec

a partisan political activity which civil service members, like the former, were enjoined from engaging in. On May 10, 2007, the National Council of BUHAY adopted a resolution10 expelling Seeres as party member for his act of submitting a Certificate of Nomination for the party. The resolution reads in part: WHEREAS, Hans Christian M. Seeres, without authority from the National Council, caused the filing of his Certificate of Nomination with the Comelec last 27 March 2007. WHEREAS, Hans Christian M. Seeres, again without authority from the National Council, listed in his Certificate of Nomination names of persons who are not even members of the Buhay party. WHEREAS, Hans Christian M. Seeres, knowing fully well that the National Council had previously approved the following as its official nominees, to wit x x x to the 2007 Party-List elections; and that Mr. Melquiades A. Robles was authorized to sign and submit the partys Certificate of Nomination with the Comelec; and, with evident premeditation to put the party to public ridicule and with scheming intention to create confusion, still proceeded with the filing of his unauthorized certificate of nomination even nomination persons who are not members of Buhay. WHEREAS, Hans Christian M. Seeres, in view of the foregoing, underwent Party Discipline process pursuant to Article VII of the Constitution and By-Laws of the Party. xxxx WHEREAS, after a careful examination of the [evidence] on his case, the National Council found Hans Christian M. Seeres to have committed acts in violation of the constitution and by-laws of the party and decided to expel him as a member of the party. NOW THEREFORE, be it RESOLVED as it is hereby RESOLVED that the National Council has decided to expel Hans M. Seeres as a member of the party effective close of business hour of 10 May 2007. BE IT RESOLVED FURTHER, that all rights and privileges pertaining to the membership of Hans M. Seeres with the party are consequently cancelled. BE IT RESOLVED FURTHER, that the President and Chairman of the National Council of Buhay, Mr. Melquiades A. Robles, is hereby authorized to cause the necessary filing of whatever documents/letters before the House of Representatives and/or to any other entity/agency/person to remove/drop Mr. Seeres name in the roll of members in the said lower house. 11 Later developments saw Robles filing a petition praying for the recognition of Jose D. Villanueva as the new representative of BUHAY in the House of Representatives for the remaining term until June 30, 2007.12 Attached to the petition was a copy of the expelling resolution adverted to. Additionally, Robles also filed on the same day an "Urgent Motion to Declare Null and Void the Certificate of Nomination and Certificates of Acceptance filed by Hans Christian M. Seeres, Hermenegildo Dumlao, Antonio R. Bautista, Victor Pablo Trinidad and Eduardo Solangon, Jr."13 On July 9 and July 18, 2007, respectively, the COMELEC issued two resolutions proclaiming BUHAY as a winning party-list organization for the May 2007 elections entitled to three (3) House seats.14
Seneres vs. Comelec

This was followed by the issuance on July 19, 2007 by the en banc COMELEC of Resolution E.M. No. 07-043 recognizing and declaring Robles as the president of BUHAY and, as such, was the one "duly authorized to sign documents in behalf of the party particularly the Manifestation to participate in the party-list system of representation and the Certification of Nomination of its nominees."15 Explaining its action, COMELEC stated that since no party election was held to replace Robles as party president, then he was holding the position in a hold-over capacity.16
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The COMELEC disposed of the partisan political activity issue with the terse observation that Seeres arguments on the applicability to Robles of the prohibition on partisan political activity were unconvincing.17 The dispositive portion of the COMELEC Resolution reads: WHEREFORE, premises considered, this Commission (En Banc) hereby recognizes Melquiades A. Robles as the duly authorized representative of Buhay Hayaan Yumabong (Buhay) and to act for and in its behalf pursuant to its Constitution and By-Laws. SO ORDERED.18 On July 20, 2007, the first three (3) listed nominees of BUHAY for the May 2007 elections, as per the Certificate of Nomination filed by Robles, namely Rene M. Velarde, Ma. Carissa Coscolluela, and William Irwin C. Tieng, took their oaths of office as BUHAY party-list representatives in the current Congress.19 Accordingly, on September 3, 2007, the COMELEC, sitting as National Board of Canvassers, issued a Certificate of Proclamation to BUHAY and its nominees as representatives to the House of Representatives.20 Aggrieved, petitioner filed the instant petition. The Issue Whether or not the COMELEC acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its challenged Resolution dated June 19, 2007, which declared respondent Robles as the duly authorized representative of BUHAY, and there is no appeal or any other plain, speedy or adequate remedy in the ordinary course of law except the instant petition. Our Ruling The petition should be dismissed for lack of merit. Petition for Certiorari Is an Improper Remedy A crucial matter in this recourse is whether the petition for certiorari filed by Seeres is the proper remedy. A special civil action for certiorari may be availed of when the tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction and there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law for the purpose of annulling the proceeding.21 It is the "proper remedy to question any final order, ruling and decision of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers."22 For certiorari to prosper, however, there must be a showing that the COMELEC acted with grave abuse of discretion and that there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.
Seneres vs. Comelec

In the present case, a plain, speedy and adequate remedy in the ordinary course of law was available to Seeres. The 1987 Constitution cannot be more explicit in this regard. Its Article VI, Section 17 states: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective Members. x x x This constitutional provision is reiterated in Rule 14 of the 1991 Revised Rules of the Electoral Tribunal of the House of Representatives, to wit: RULE 14. Jurisdiction.The Tribunal shall be the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives. In Lazatin v. House Electoral Tribunal, the Court elucidated on the import of the word "sole" in Art. VI, Sec. 17 of the Constitution, thus: The use of the word sole emphasizes the exclusive character of the jurisdiction conferred. The exercise of the power by the Electoral Commission under the 1935 Constitution has been described as intended to be as complete and unimpaired as if it had remained originally in the legislature. Earlier, this grant of power to the legislature was characterized by Justice Malcolm as full, clear and complete. Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the legislature and the Electoral Commission. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution."23 Then came Rasul v. COMELEC and Aquino-Oreta, in which the Court again stressed that "the word sole in Sec. 17, Art. VI of the 1987 Constitution and Sec. 250 of the Omnibus Election Code underscore the exclusivity of the Tribunals jurisdiction over election contests relating to its members."24 The House of Representatives Electoral Tribunals (HRETs) sole and exclusive jurisdiction over contests relative to the election, returns and qualifications of the members of the House of Representatives "begins only after a candidate has become a member of the House of Representatives."25 Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, COMELECs jurisdiction over elections relating to the election, returns, and qualifications ends, and the HRETs own jurisdiction begins.26 It is undisputed that the COMELEC, sitting as National Board of Canvassers, proclaimed BUHAY as a winning party-list organization for the May 14, 2007 elections, entitled to three (3) seats in the House of Representatives.27 The proclamation came in the form of two Resolutions dated July 9, 2007 and July 18, 2007,28respectively. Said resolutions are official proclamations of COMELEC considering it is BUHAY that ran for election as party-list organization and not the BUHAY nominees. The following day, on July 19, 2007, the COMELEC issued the assailed resolution declaring "Melquiades A. Robles as the duly authorized representative of Buhay Hayaan Yumabong (Buhay) and to act in its behalf pursuant to its Constitution and By-Laws." COMELEC affirmed that his Certificate of Nomination was a valid one as it ruled that "Robles is the President of Buhay Party-List and therefore duly authorized to sign documents in behalf of the party particularly the Manifestation to participate in the pary-list system of representation and theCertificate of Nomination of its nominees."29 The September 3, 2007 proclamation merely confirmed the challenged July 19, 2007
Seneres vs. Comelec

Resolution. The July 19, 2007 Resolution coupled with the July 9, 2007 and July 18, 2007 proclamations vested the Robles nominees the right to represent BUHAY as its sectoral representatives. Consequently, the first three (3) nominees in the Certificate of Nomination submitted by Robles then took their oaths of office before the Chief Justice on July 20, 2007 and have since then exercised their duties and functions as BUHAY Party-List representatives in the current Congress. Without a doubt, at the time Seeres filed this petition before this Court on July 23, 2007, the right of the nominees as party-list representatives had been recognized and declared in the July 19, 2007 Resolution and the nominees had taken their oath and already assumed their offices in the House of Representatives. As such, the proper recourse would have been to file a petition for quo warranto before the HRET within ten (10) days from receipt of the July 19, 2007 Resolution and not a petition for certiorari before this Court.30 Since Seeres failed to file a petition for quo warranto before the HRET within 10 days from receipt of the July 19, 2007 Resolution declaring the validity of Robles Certificate of Nomination, said Resolution of the COMELEC has already become final and executory. Thus, this petition has now become moot and can be dismissed outright. And even if we entertain the instant special civil action, still, petitioners postulations are bereft of merit. Act of Nominating Is Not Partisan Political Activity Petitioner Seeres contends that Robles, acting as BUHAY President and nominating officer, as well as being the Administrator of the LRTA, was engaging in electioneering or partisan political campaign. He bases his argument on the Constitution, which prohibits any officer or employee in the civil service from engaging, directly or indirectly, in any electioneering or partisan political campaign.31 He also cites Sec. 4 of the Civil Service Law which provides that "no officer or employee in the Civil Service x x x shall engage in any partisan political activity." Lastly, he mentions Sec. 26(i) of the Omnibus Election Code which makes it "an election offense for any officer in the civil service to directly or indirectly x x x engage in any partisan political activity." This contention lacks basis and is far from being persuasive. The terms "electioneering" and "partisan political activity" have well-established meanings in the Omnibus Election Code, to wit: Section 79. x x x (b) The term election campaign or partisan political activity refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;
Seneres vs. Comelec

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a political party, agreement, or coalition of parties shall not be considered as election campaign or partisan election activity. Public expression of opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forth coming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article. (Emphasis supplied.) Guided by the above perspective, Robles act of submitting a nomination list for BUHAY cannot, without more, be considered electioneering or partisan political activity within the context of the Election Code. First of all, petitioner did not aver that Robles committed any of the five (5) acts defined in the aforequoted Sec. 79(b) of the Code, let alone adduce proof to show the fact of commission. Second, even if Robles performed any of the previously mentioned acts, Sec. 79 of the Code is nonetheless unequivocal that if the same is done only for the "purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a political party, agreement, or coalition of parties," it is not considered as a prohibited electioneering or partisan election activity. From this provision, one can conclude that as long as the acts embraced under Sec. 79 pertain to or are in connection with the nomination of a candidate by a party or organization, then such are treated as internal matters and cannot be considered as electioneering or partisan political activity. The twin acts of signing and filing a Certificate of Nomination are purely internal processes of the party or organization and are not designed to enable or ensure the victory of the candidate in the elections. The act of Robles of submitting the certificate nominating Velarde and others was merely in compliance with the COMELEC requirements for nomination of party-list representatives and, hence, cannot be treated as electioneering or partisan political activity proscribed under by Sec. 2(4) of Art. IX(B) of the Constitution for civil servants. Moreover, despite the fact that Robles is a nominating officer, as well as Chief of the LRTA, petitioner was unable to cite any legal provision that prohibits his concurrent positions of LRTA President and acting president of a party-list organization or that bars him from nominating. Last but not least, the nomination of Velarde, Coscolluela, Tieng, Monsod, and Villarama to the 2007 party-list elections was, in the final analysis, an act of the National Council of BUHAY. Robles role in the nominating process was limited to signing, on behalf of BUHAY, and submitting the partys Certificate of Nomination to the COMELEC.32 The act of nominating BUHAYs representatives was veritably a direct and official act of the National Council of BUHAY and not Robles. Be that as it may, it is irrelevant who among BUHAYs officials signs the Certificate of Nomination, as long as the signatory was so authorized by BUHAY. The alleged disqualification of Robles as nominating officer is indeed a non-issue and does not affect the act of the National Council of nominating Velarde and others. Hence, the Certificate of Nomination, albeit signed by Robles, is still the product of a valid and legal act of the National Council of BUHAY. Robles connection with LRTA could not really be considered as a factor invalidating the nomination process. "Hold-Over" Principle Applies
Seneres vs. Comelec

Petitioner Seeres further maintains that at the time the Certificate of Nomination was submitted, Robles term as President of BUHAY had already expired, thus effectively nullifying the Certificate of Nomination and the nomination process. Again, petitioners contention is untenable. As a general rule, officers and directors of a corporation hold over after the expiration of their terms until such time as their successors are elected or appointed.33 Sec. 23 of the Corporation Code contains a provision to this effect, thus: Section 23. The board of directors or trustees.Unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the board of directors or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of the corporation, who shall hold office for one (1) year until their successors are elected and qualified. The holdover doctrine has, to be sure, a purpose which is at once legal as it is practical. It accords validity to what would otherwise be deemed as dubious corporate acts and gives continuity to a corporate enterprise in its relation to outsiders.34 This is the analogical situation obtaining in the present case. The voting members of BUHAY duly elected Robles as party President in October 1999. And although his regular term as such President expired in October 2002,35 no election was held to replace him and the other original set of officers.36 Further, the constitution and by-laws of BUHAY do not expressly or impliedly prohibit a hold-over situation. As such, since no successor was ever elected or qualified, Robles remained the President of BUHAY in a "hold-over" capacity. Authorities are almost unanimous that one who continues with the discharge of the functions of an office after the expiration of his or her legal termno successor having, in the meantime, been appointed or chosenis commonly regarded as a de facto officer, even where no provision is made by law for his holding over and there is nothing to indicate the contrary.37 By fiction of law, the acts of such de facto officer are considered valid and effective.38 So it must be for the acts of Robles while serving as a hold-over Buhay President. Among these acts was the submission of the nomination certificate for the May 14, 2007 elections. As a final consideration, it bears to state that petitioner is estopped from questioning the authority of Robles as President of BUHAY. As a principle of equity rooted on natural justice, the bar of estoppel precludes a person from going back on his own acts and representations to the prejudice of another whom he has led to rely upon them.39 Again, it cannot be denied that Robles, as BUHAY President, signed all manifestations of the partys desire to participate in the 2001 and 2004 elections, as well as all Certificates of Nomination.40 In fact, the corresponding certificate for the 2004 elections included petitioner as one of the nominees. During this time, Robles term as President had already expired, and yet, petitioner never questioned Robles authority to sign the Certificate of Nomination. As a matter of fact, petitioner even benefited from the nomination, because he earned a seat in the House of Representatives as a result of the partys success.41 Clearly, petitioner cannot now be heard to argue that Robles term as president of BUHAY has long since expired, and that his act of submitting the Certificate of Nomination and the manifestation to participate in the 2007 elections is null and void. He is already precluded from doing so. WHEREFORE, the petition is DISMISSED. Resolution E.M. No. 07-043 of the COMELEC dated July 19, 2007 isAFFIRMED. No costs.
Abayon vs. HRET

DARYL GRACE J. ABAYON, Petitioner, vs. THE HONORABLE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, PERFECTO C. LUCABAN, JR., RONYL S. DE LA CRUZ and AGUSTIN C. DOROGA, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 189506 CONGRESSMAN JOVITO S. PALPARAN, JR., Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET), DR. REYNALDO LESACA, JR., CRISTINA PALABAY, RENATO M. REYES, JR., ERLINDA CADAPAN, ANTONIO FLORES and JOSELITO USTAREZ,Respondents. DECISION ABAD, J.: These two cases are about the authority of the House of Representatives Electoral Tribunal (HRET) to pass upon the eligibilities of the nominees of the party-list groups that won seats in the lower house of Congress. The Facts and the Case In G.R. 189466, petitioner Daryl Grace J. Abayon is the first nominee of the Aangat Tayo party-list organization that won a seat in the House of Representatives during the 2007 elections. Respondents Perfecto C. Lucaban, Jr., Ronyl S. Dela Cruz, and Agustin C. Doroga, all registered voters, filed a petition for quo warranto with respondent HRET against Aangat Tayo and its nominee, petitioner Abayon, in HRET Case 07-041. They claimed that Aangat Tayo was not eligible for a party-list seat in the House of Representatives, since it did not represent the marginalized and underrepresented sectors. Respondent Lucaban and the others with him further pointed out that petitioner Abayon herself was not qualified to sit in the House as a party-list nominee since she did not belong to the marginalized and underrepresented sectors, she being the wife of an incumbent congressional district representative. She moreover lost her bid as party-list representative of the party-list organization called An Waray in the immediately preceding elections of May 10, 2004. Petitioner Abayon countered that the Commission on Elections (COMELEC) had already confirmed the status of Aangat Tayo as a national multi-sectoral party-list organization representing the workers, women, youth, urban poor, and elderly and that she belonged to the women sector. Abayon
Abayon vs. HRET

also claimed that although she was the second nominee of An Waray party-list organization during the 2004 elections, she could not be regarded as having lost a bid for an elective office. Finally, petitioner Abayon pointed out that respondent HRET had no jurisdiction over the petition for quo warranto since respondent Lucaban and the others with him collaterally attacked the registration of Aangat Tayo as a party-list organization, a matter that fell within the jurisdiction of the COMELEC. It was Aangat Tayo that was taking a seat in the House of Representatives, and not Abayon who was just its nominee. All questions involving her eligibility as first nominee, said Abayon, were internal concerns of Aangat Tayo. On July 16, 2009 respondent HRET issued an order, dismissing the petition as against Aangat Tayo but upholding its jurisdiction over the qualifications of petitioner Abayon.1 The latter moved for reconsideration but the HRET denied the same on September 17, 2009,2 prompting Abayon to file the present petition for special civil action of certiorari. In G.R. 189506, petitioner Jovito S. Palparan, Jr. is the first nominee of the Bantay party-list group that won a seat in the 2007 elections for the members of the House of Representatives. Respondents Reynaldo Lesaca, Jr., Cristina Palabay, Renato M. Reyes, Jr., Erlinda Cadapan, Antonio Flores, and Joselito Ustarez are members of some other party-list groups. Shortly after the elections, respondent Lesaca and the others with him filed with respondent HRET a petition forquo warranto against Bantay and its nominee, petitioner Palparan, in HRET Case 07-040. Lesaca and the others alleged that Palparan was ineligible to sit in the House of Representatives as party-list nominee because he did not belong to the marginalized and underrepresented sectors that Bantay represented, namely, the victims of communist rebels, Civilian Armed Forces Geographical Units (CAFGUs), former rebels, and security guards. Lesaca and the others said that Palparan committed gross human rights violations against marginalized and underrepresented sectors and organizations. Petitioner Palparan countered that the HRET had no jurisdiction over his person since it was actually the party-list Bantay, not he, that was elected to and assumed membership in the House of Representatives. Palparan claimed that he was just Bantays nominee. Consequently, any question involving his eligibility as first nominee was an internal concern of Bantay. Such question must be brought, he said, before that party-list group, not before the HRET. On July 23, 2009 respondent HRET issued an order dismissing the petition against Bantay for the reason that the issue of the ineligibility or qualification of the party-list group fell within the jurisdiction of the COMELEC pursuant to the Party-List System Act. HRET, however, defended its jurisdiction over the question of petitioner Palparans qualifications.3 Palparan moved for reconsideration but the HRET denied it by a resolution dated September 10, 2009,4 hence, the recourse to this Court through this petition for special civil action of certiorari and prohibition. Since the two cases raise a common issue, the Court has caused their consolidation. The Issue Presented The common issue presented in these two cases is: Whether or not respondent HRET has jurisdiction over the question of qualifications of petitioners Abayon and Palparan as nominees of Aangat Tayo and Bantay party-list organizations, respectively, who took the seats at the House of Representatives that such organizations won in the 2007 elections.
Abayon vs. HRET

The Courts Ruling Petitioners Abayon and Palparan have a common theory: Republic Act (R.A.) 7941, the Party-List System Act, vests in the COMELEC the authority to determine which parties or organizations have the qualifications to seek party-list seats in the House of Representatives during the elections. Indeed, the HRET dismissed the petitions for quo warranto filed with it insofar as they sought the disqualifications of Aangat Tayo and Bantay. Since petitioners Abayon and Palparan were not elected into office but were chosen by their respective organizations under their internal rules, the HRET has no jurisdiction to inquire into and adjudicate their qualifications as nominees. If at all, says petitioner Abayon, such authority belongs to the COMELEC which already upheld her qualification as nominee of Aangat Tayo for the women sector. For Palparan, Bantays personality is so inseparable and intertwined with his own person as its nominee so that the HRET cannot dismiss the quo warranto action against Bantay without dismissing the action against him. But, although it is the party-list organization that is voted for in the elections, it is not the organization that sits as and becomes a member of the House of Representatives. Section 5, Article VI of the Constitution,5 identifies who the "members" of that House are: Sec. 5. (1). The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (Underscoring supplied) Clearly, the members of the House of Representatives are of two kinds: "members x x x who shall be elected from legislative districts" and "those who x x x shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations." This means that, from the Constitutions point of view, it is the party-list representatives who are "elected" into office, not their parties or organizations. These representatives are elected, however, through that peculiar party-list system that the Constitution authorized and that Congress by law established where the voters cast their votes for the organizations or parties to which such party-list representatives belong. Once elected, both the district representatives and the party-list representatives are treated in like manner. They have the same deliberative rights, salaries, and emoluments. They can participate in the making of laws that will directly benefit their legislative districts or sectors. They are also subject to the same term limitation of three years for a maximum of three consecutive terms. It may not be amiss to point out that the Party-List System Act itself recognizes party-list nominees as "members of the House of Representatives," thus: Sec. 2. Declaration of Policy. - The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to the marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in
Abayon vs. HRET

the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. (Underscoring supplied) As this Court also held in Bantay Republic Act or BA-RA 7941 v. Commission on Elections,6 a partylist representative is in every sense "an elected member of the House of Representatives." Although the vote cast in a party-list election is a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate cases, would eventually sit in the House of Representatives. Both the Constitution and the Party-List System Act set the qualifications and grounds for disqualification of party-list nominees. Section 9 of R.A. 7941, echoing the Constitution, states: Sec. 9. Qualification of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.
1avvph i1
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue until the expiration of his term. In the cases before the Court, those who challenged the qualifications of petitioners Abayon and Palparan claim that the two do not belong to the marginalized and underrepresented sectors that they ought to represent. The Party-List System Act provides that a nominee must be a "bona fide member of the party or organization which he seeks to represent."7 It is for the HRET to interpret the meaning of this particular qualification of a nomineethe need for him or her to be a bona fide member or a representative of his party-list organizationin the context of the facts that characterize petitioners Abayon and Palparans relation to Aangat Tayo and Bantay, respectively, and the marginalized and underrepresented interests that they presumably embody. Petitioners Abayon and Palparan of course point out that the authority to determine the qualifications of a party-list nominee belongs to the party or organization that nominated him. This is true, initially. The right to examine the fitness of aspiring nominees and, eventually, to choose five from among them after all belongs to the party or organization that nominates them.8 But where an allegation is made that the party or organization had chosen and allowed a disqualified nominee to become its party-list representative in the lower House and enjoy the secured tenure that goes with the position, the resolution of the dispute is taken out of its hand. Parenthetically, although the Party-List System Act does not so state, the COMELEC seems to believe, when it resolved the challenge to petitioner Abayon, that it has the power to do so as an incident of its authority to approve the registration of party-list organizations. But the Court need not resolve this question since it is not raised here and has not been argued by the parties. What is inevitable is that Section 17, Article VI of the Constitution9 provides that the HRET shall be the sole judge of all contests relating to, among other things, the qualifications of the members of the House of Representatives. Since, as pointed out above, party-list nominees are "elected members" of the House of Representatives no less than the district representatives are, the HRET has jurisdiction to hear and pass upon their qualifications. By analogy with the cases of district representatives, once the party or organization of the party-list nominee has been proclaimed and
Abayon vs. HRET

the nominee has taken his oath and assumed office as member of the House of Representatives, the COMELECs jurisdiction over election contests relating to his qualifications ends and the HRETs own jurisdiction begins.10 The Court holds that respondent HRET did not gravely abuse its discretion when it dismissed the petitions for quo warranto against Aangat Tayo party-list and Bantay party-list but upheld its jurisdiction over the question of the qualifications of petitioners Abayon and Palparan. WHEREFORE, the Court DISMISSES the consolidated petitions and AFFIRMS the Order dated July 16, 2009 and Resolution 09-183 dated September 17, 2009 in HRET Case 07-041 of the House of Representatives Electoral Tribunal as well as its Order dated July 23, 2009 and Resolution 09-178 dated September 10, 2009 in HRET Case 07-040. SO ORDERED.
Senate of the Philippines vs Ermita 495 SCRA 170

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 193256 March 22, 2011
ABC (ALLIANCE FOR BARANGAY CONCERNS) PARTY LIST, represented herein by its Chairman, JAMES MARTY LIM, Petitioner, vs. COMMISSION ON ELECTIONS and MELANIO MAURICIO, JR., Respondents. DECISION PERALTA, J.: This is a special civil action for certiorari1 alleging that the Commission on Elections (COMELEC) en banc acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolution dated August 3, 2010, which reinstated the petition to cancel the registration and accreditation of petitioner ABC (Alliance for Barangay Concerns) Party-List, and directed the Commission Secretary to schedule a hearing on the petition. The facts are as follows: On May 25, 2010, private respondent Melanio Mauricio, Jr. filed a petition2 with the COMELEC for the cancellation of registration and accreditation of petitioner ABC Party-List3 on the ground that petitioner is a front for a religious organization; hence, it is disqualified to become a party-list group under Section 6 (1)4 of Republic Act (R.A.) No. 7941, otherwise known as the Party-List System Act. Private respondent contends that ABC is a front for a religious group called the Children of God International, which is more popularly known as Ang Dating Daan, based on the following circumstances: 1. Although its National Chairman, James Marty Lim, was being publicly bruited as its first nominee, the real number one nominee of the party is Arnulfo "Noel" Molero, who is a known top official of Ang Dating Daan; 2. ABC was organized, established and is being run by Ang Dating Daan not as a party-list organization for political purposes [envisioned by R.A. No. 7941 (the Party-List System Act)], but as a religious sect for religious purposes; 3. The resources of Ang Dating Daan are being used to finance the campaign of ABC on a nationwide scale; and 4. The membership of ABC is composed of the members of Ang Dating Daan.5 Private respondent also alleged that ABC made an untruthful statement in its petition for accreditation, as it stated that it does not possess any of the disqualifications provided by the PartyList System Act when it is disqualified for being, in reality, a religious organization. In addition, he alleged that ABC is receiving support from third parties abroad.

Private respondent prayed that the accreditation of ABC be cancelled, and that it be declared disqualified as a party-list group for violating R.A. No. 7941. In its Answer,6 petitioner ABC denied private respondents allegations, which were unproven by any material and convincing evidence. It averred that ABC, as a political party, is allowed by law to be registered and run under the party-list system of representation. The COMELEC has approved petitioners registration and accreditation as a party-list group, and petitioner had participated and was voted upon in the 2007 elections. Moreover, petitioner stated that as a political party of national constituency, it was founded and headed by Mr. James Marty Lim, who held the position of National President of the Association of Barangay Chairmen for 11 years. Its stature as a party-list organization with national constituency that could contribute to the formulation and enactment of appropriate legislation for the marginalized and underrepresented sectors of society should remove any doubt that it was established for religious purposes. Petitioner averred that it has not been identified with any religious entity or aggrupation. On June 16, 2010, the COMELEC, Second Division issued a Resolution7 dismissing the petition based on procedural and substantial grounds. The dismissal on procedural grounds was grounded on the lack of proper verification of the petition. According to the COMELEC, Second Division, the Verification with Certification Re: Forum Shopping and Special Power of Attorney was not duly notarized in accordance with the 2004 Rules on Notarial Practice, as amended. Sections 1 and 6, Rule II of the 2004 Rules on Notarial Practice require that the person appearing before a notary public must be known to the notary public or identified by the notary public through competent evidence of identity. In this case, the COMELEC, Second Division found that the "Acknowledgment" at the end of the verification did not contain the name of private respondent who supposedly appeared before the notary public, and he was not identified by any competent evidence of identity as required by the rules on notarial practice. The COMELEC, Second Division also dismissed the petition based on substantial grounds, as it found that ABC is not a religious sect, and is, therefore, not disqualified from registration. On June 22, 2010, private respondent filed a Motion for Reconsideration with Motion to Annul Proclamation and Suspend its Effects.8 He argued that his petition was not defective since attached to the verification were photocopies of his identification cards. He likewise argued that he should be given the opportunity to present his evidence to support his Petition in accordance with Section 6 of R.A. No. 7941. On July 6, 2010, petitioner filed its Comment/Opposition with Extremely Urgent Motion to Dismiss.9 On July 6, 2010, private respondent submitted a Supplemental Motion for Reconsideration10 and his evidence to support his petition. In response thereto, petitioner filed on July 21, 2010 a Supplement11 to its Comment/Opposition with Extremely Urgent Motion to Dismiss that was filed on July 6, 2010. Petitioner urged the COMELEC to dismiss the petition for lack of jurisdiction, since the Secretary General of the House of Representatives had already recognized ABC as a proclaimed party-list group by asking its first nominee to attend the Orientation Program for the new members of the House of Representatives, Fifteenth Congress on July 8, 2010 at the plenary hall.

On July 30, 2010, private respondent filed a Comment/Opposition12 to petitioner's motion to dismiss, arguing that ABC was not validly proclaimed; hence, the COMELEC still has jurisdiction over the case. On August 3, 2010, the COMELEC en banc issued a Resolution13 partially granting private respondents Motion for Reconsideration with Motion to Annul Proclamation and Suspend Its Effects dated June 22, 2010. The dispositive portion of the Resolution reads: WHEREFORE, premises considered, the instant motion for reconsideration is PARTIALLY GRANTED. The petition is hereby REINSTATED and the Commission Secretary is hereby DIRECTED TO SCHEDULE a hearing on the petition with notice to the parties.14 Contrary to the findings of the Second Division, the COMELEC en banc found that the petitions verification page substantially complied with the 2004 Rules on Notarial Practice, thus: x x x A perusal of the said verification page immediately shows that photostatic copies of Mauricio, Jr.s Community Tax Certificate No. CCI2009 30975061, Integrated Bar of the Philippines Lifetime Membership Card, and Permit to Carry Firearms No. 09083204 were attached thereto, thereby making them an integral part of said verification page. Clearly, Mauricio Jr.s submission of his community tax certificate and two (2) identification cards, with the verification page substantially complies with the requirements of the 2004 Notarial Rules.15 More importantly, the COMELEC en banc stated that the records of the case showed that the Resolution of the Second Division was issued without any hearing, which deprived Mauricio of the opportunity to submit evidence in support of his petition. The COMELEC en banc averred that Section 616 of R.A. No. 7941 requires the sending out of notices and that an actual hearing is held to ensure that the parties right to due process is respected. It cited the case of Sandoval v. Commission on Elections,17 which held that procedural due process demands notice and hearing. ABC filed this petition raising the following issues: 1. The Commission en banc has no more jurisdiction to entertain the petition for cancellation of registration and accreditation since ABC was already proclaimed as winner. 2. Granting that public respondent still has jurisdiction, the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it set the petition of Mauricio for hearing when he was already given all the time and opportunity to present and substantiate his case. 3. Granting that public respondent still has jurisdiction, the COMELEC en banc committed grave abuse of discretion amountING to lack or excess of jurisdiction when it did not recognize that on its face the petition of Mauricio is unmeritorious and procedurally defective. 4. Granting that public respondent still has jurisdiction, the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it singled out the case of ABC, setting the same for hearing when all the other cases of the same nature were all summarily and motu proprio dismissed by the COMELEC. 5. Because of the foregoing, the assailed Resolution of August 3, 2010 is a patent nullity; hence, direct resort to this honorable Supreme Court is proper.18

Petitioner contends that the COMELEC en banc no longer had jurisdiction to entertain the petition for cancellation of registration and accreditation of ABC Party-List after it was already proclaimed as one of the winners in the party-list elections of May 10, 2010 per National Board of Canvassers Resolution No. 10-00919 promulgated on May 31, 2010. Petitioner avers that Section 17, Article VI of the Constitution provides that "[t]he Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members." Hence, once a candidate for House of Representatives is proclaimed, the COMELEC is divested of jurisdiction to pass upon its qualification and the same is vested with the House of Representatives Electoral Tribunal (HRET). Petitioner states that in this case, there is no dispute that ABC Party-List has been proclaimed by the COMELEC as one of the winners in the party-list elections of May 10, 2010; therefore, any question as to its qualification should be resolved by the HRET and not by the COMELEC. Petitioner asserts that once a party-list group has been proclaimed winner and its nominees have taken their oath, the COMELEC should be divested of its jurisdiction over both the party-list group and its nominees. Further, petitioner submits that Section 6 of R.A. No. 7941, which states that the COMELEC may motu proprio or upon verified complaint of any interested party remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition, is applicable only to a non-winning party-list group. According to petitioner, its submission is supported by the fact that one of the grounds for the cancellation of the registration of any national, regional or sectoral party is failure to obtain the required two percent of votes or to participate in the past two elections which are obviously applicable only to losing party-list groups. The arguments of petitioner do not persuade. The jurisdiction of the COMELEC over petitions for cancellation of registration of any political party, organization or coalition is derived from Section 2 (5), Article IX-C of the Constitution, which states: Sec, 2. The Commission on Elections shall exercise the following powers and functions: xxxx (5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs, and when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.20 Based on the provision above, the Constitution grants the COMELEC the authority to register political parties, organizations or coalitions, and the authority to cancel the registration of the same on legal grounds. The said authority of the COMELEC is reflected in Section 6 of R.A. No. 7941, which provides:

Section 6. Refusal and/or Cancellation of Registration. -- The Comelec may motu proprio or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: (1) It is a religious sect or denomination, organization or association organized for religious purposes; xxx It is, therefore, clear that the COMELEC has jurisdiction over the instant petition for cancellation of the registration of the ABC Party-List. In the case of the party-list nominees/representatives, it is the HRET that has jurisdiction over contests relating to their qualifications. Although it is the party-list organization that is voted for in the elections, it is not the organization that sits as and becomes a member of the House of Representatives,21 but it is the party-list nominee/representative who sits as a member of the House of Representatives. The members of the House of Representatives are provided for in Section 5, Article VI of the Constitution: Sec. 5. (1). The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.22 Thus, the members of the House of Representatives are composed of the members who shall be elected from legislative districts and those who shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. Abayon v. House of Representatives Electoral Tribunal23 held: x x x x [F]rom the Constitution's point of view, it is the party-list representatives who are "elected" into office, not their parties or organizations. These representatives are elected, however, through that peculiar party-list system that the Constitution authorized and that Congress by law established where the voters cast their votes for the organizations or parties to which such party-list representatives belong. Once elected, both the district representatives and the party-list representatives are treated in like manner. They have the same deliberative rights, salaries, and emoluments. They can participate in the making of laws that will directly benefit their legislative districts or sectors. They are also subject to the same term limitation of three years for a maximum of three consecutive terms. It may not be amiss to point out that the Party-List System Act itself recognizes party-list nominees as "members of the House of Representatives," thus: Sec. 2. Declaration of Policy. - The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national,

regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to the marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. (Underscoring supplied)24 Since the representative of the elected party-list organization becomes a member of the House of Representatives, contests relating to the qualifications of the said party-list representative is within the jurisdiction of the HRET, as Section 17, Article VI of the Constitution provides: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Abayon held: x x x [P]arty-list nominees are "elected members" of the House of Representatives no less than the district representatives are, the HRET has jurisdiction to hear and pass upon their qualifications. By analogy with the cases of district representatives, once the party or organization of the party-list nominee has been proclaimed and the nominee has taken his oath and assumed office as member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his qualifications ends and the HRET's own jurisdiction begins.25 Therefore, the jurisdiction of the HRET over contests relating to the qualifications of a party-list nominee or representative is derived from Section 17, Article VI of the Constitution, while the jurisdiction of the COMELEC over petitions for cancellation of registration of any national, regional or sectoral party, organization or coalition is derived from Section 2 (5), Article IX-C of the Constitution. In sum, the COMELEC en banc had jurisdiction over the petition for cancellation of the registration and accreditation of petitioner ABC Party-List for alleged violation of Section 6 (1) of R.A. No. 7941. Moreover, petitioner contends that the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it still set the petition for hearing despite the fact that private respondent had the opportunity to be heard and was not denied due process, and he presented his evidence as attachments to his Supplemental Motion for Reconsideration. The contention lacks merit. The COMELEC has the constitutional mandate to register political parties, organizations and coalitions, and to cancel their registration on legal grounds; hence, the COMELEC en banc, in this case, has the prerogative to direct that a hearing be conducted on the petition for cancellation of registration of the ABC Party-List. The COMELEC en banc stated in its Resolution that only then can the petition be resolved on its merits with due regard to private respondents right to due process. Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility.26 The grave abuse of discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law.27It is absent in this case.
1avvphi 1

As regards the alleged lack of proper verification of the petition of private respondent, the COMELEC en banc held that private respondent substantially complied with the requirements of the 2004 Rules on Notarial Practice as he submitted his community tax certificate and two identification cards with the verification page. The Court agrees with the ruling of the COMELEC en banc, which has the discretion to liberally construe procedural rules in order to achieve a just and speedy resolution of every action brought before the COMELEC. Further, petitioner contends that the COMELEC en banc committed grave abuse of discretion when it singled out this case and directed that it be set for hearing when other cases of the same nature were summarily and motu proprio dismissed by the COMELEC, citing the cases of Barangay Natin Party-List (BANAT) v. Citizens Battle Against Corruption (CIBAC) Foundation, Inc., and BANAT v. 1st Consumers Alliance for Rural Energy (1-CARE) and Association of Philippine Electric Cooperatives (APEC).28 The contention is without merit. In the cited case of BANAT v. CIBAC Foundation, Inc., the COMELEC dismissed the petition for cancellation of the certificate of registration and accreditation of CIBAC Foundation Inc. on the ground that this Court had already determined the eligibility of CIBAC as a registered/accredited party-list organization, unlike in this case.29 In regard to the case of BANAT v. 1-CARE and APEC,30 the COMELEC dismissed a similar petition on the ground that the registration and qualification of APEC and its nominees have been settled affirmatively by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.31 In fine, the COMELEC en banc did not act without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolution dated August 3, 2010. WHEREFORE, the petition is hereby DISMISSED for lack of merit. Costs against petitioner. SO ORDERED.
EN BANC G.R. No. 169777 Present: PANGANIBAN, C.J., PUNO, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO,* AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, JR., JJ.
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, COMPANERA PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA LOI EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S. LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, MAR ROXAS and MANUEL B. VILLAR, JR., Petitioners, - versus EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President GloriaMacapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines, Respondents. x------------------------------------------x
Promulgated: July 14, 20006
G.R. No. 169659 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, - versus EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, Respondent. x------------------------------------------x FRANCISCO I. CHAVEZ, Petitioner, - versus EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents. x------------------------------------------x ALTERNATIVE LAW GROUPS, G.R. No. 169667
G.R. No. 169660
INC. (ALG), Petitioner, - versus HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent. x-----------------------------------------x G.R. No. 169834 PDP- LABAN, Petitioner, - versus EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent. x------------------------------------------x G.R. No. 171246 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, - versus -
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x-------------------------------------------------x RESOLUTION CARPIO MORALES, J.: Pending consideration are 1) the Motion for Reconsideration dated May 18, 2006 filed by respondents, praying that the Decision promulgated on April 20, 2006 (the Decision) be set aside, and 2) the Motion for Reconsideration dated May 17, 2006 filed by petitioner PDP-Laban in so far as the Decision held that it was without the requisite standing to file the petition in G.R. No. 169834. Petitioners Senate of the Philippines et al., Alternative Law Groups, Inc., Francisco I. Chavez, and PDP-Laban filed their respective Comments to respondents Motion for Reconsideration. Respecting PDP-Labans Motion for Reconsideration, petitioners Senate of the Philippines et al. and petitioner Chavez endorse the same. Respondents, however, pray for its denial. In their Motion for Reconsideration, respondents argue that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation has not been published, hence, the President may properly prohibit the appearance of executive officials before Congress. Even assuming arguendo that the said Rules of Procedure had not been published, such does not have any bearing on the validity of any of the provisions of E.O. 464. The prohibition under Section 1 of E.O. 464 has to do with the question hour, not with inquiries in aid of legislation. As to the prohibition authorized by Section 3 in relation to Section 2(b), the basis thereof is executive privilege, not the purported failure to publish rules of procedure. If the President would prohibit executive officials from appearing before Congress on the ground of lack of published rules of procedure, such would not be an exercise of executive privilege, but simply a claim to protection under the due process clause a right which the President has in common with any other citizen. The claim to such protection is not based on the confidential nature of the
information held by the official concerned, as in the case of executive privilege, but on the defective nature of the legislative inquiry itself. The prohibition under Section 3 in relation to Section 2(b) of E.O. 464, however, is based solely on executive privilege, not on any alleged defect in the inquiry arising from a lack of published rules of procedure. Respondents go on to argue that the Presidents invocation of executive privilege is for practical purposes, in that since the President would be in no position to raise an objection the moment a question is asked by Congress, she must be allowed to prohibit the appearance of the official concerned, at least until she is able to thoroughly discuss the matter with the said official. For, so respondents contend, once the information has been coerced out of the official, there is no turning back, and the damage that could result might be devastating to the functioning of government.[1] The tentative prevention of an official from appearing before Congress pending discussion of the matter on inquiry with the President cannot, however, be properly deemed an exercise of executive privilege, not even one for practical purposes. Any such discussion is meant precisely to allow the President to determine whether the information sought falls under the privilege. Before such determination, the claim of privilege could only be based on mere speculation that the information sought might be confidential in nature. Certainly, Congress cannot be bound by such a tenuous invocation of the privilege. The executive branch, nonetheless, need not be apprehensive that it might not be able to invoke executive privilege in time to prevent disclosures of legitimately confidential information. As this Court stated in the Decision, the President and the Executive Secretary must be given fair opportunity to determine whether the matter under legislative investigation calls for a claim of privilege.[2] To secure this fair opportunity, the executive branch need not resort to a precautionary claim of privilege like that proffered by respondents. The President may, instead, direct the official concerned to ask Congress for reasonable time to discuss with her the subject matter of the investigation. Section 3 in relation to 2(b) of E.O. 464, however, is far from being a mere directive to officials summoned by Congress to ask for time to confer with the President. It is an authorization for implied claims of privilege.[3] As such, the criteria for evaluating its validity must be those for claims of executive
privilege. On the basis of such criteria, the Court found the implied claim authorized under Section 3 in relation to Section 2(b) of E.O. 464 to be defective. In fine, no argument in respondents Motion for Reconsideration merits a reversal or modification of the Decision. As for its Motion for Reconsideration, petitioner PDP-Laban avers that there is no fundamental difference between it and petitioner Bayan Muna to justify their unequal treatment since both of them have members in Congress. It claims, moreover, that all its members are taxpayers and Filipino citizens whose right to information was, as held in the Decision, violated by E.O. 464. There are, however, fundamental distinctions between PDPLaban and Bayan Muna which call for this Courts contrasting rulings with regard to their standing. While both parties have members in Congress, PDP-Laban, unlike Bayan Muna, is not represented therein as a party-list organization. The PDP-Laban members in Congress were elected to represent, not their party, but their constituents, i.e., their legislative district in the case of representatives, or the nation at large in the case of senators. The Bayan Muna members in Congress, on the other hand, were elected precisely to represent their party. [4] In fact, in light of the party-list system, the representatives from Bayan Muna may be said to have been elected only indirectly, since it was Bayan Muna itself, as a party, which was voted for in the last elections where it received enough votes to entitle it to three seats in the House of Representatives.[5] This, again, contrasts with the situation of the PDP-Laban members in Congress who were all elected in their individual capacities. Indeed, the rights of the Bayan Muna representatives are so intertwined with their partys right to representation in Congress that, in the event they change their party affiliation during their term of office, they would have to forfeit their seat [6] a rule which clearly does not apply to the PDP-Laban members in Congress. Bayan Muna is thus entitled to participate in the legislative process in a way that cannot be said of PDP-Laban.
With regard to PDP-Labans assertion that it consists of taxpayers and Filipino citizens, suffice it to state that its Petition did not assert this as a ground for its standing to sue. It merely alleged that E.O. 464 hampers its legislative agenda and that the issues involved are of transcendental importance, [7] which points were already addressed in the Decision. If PDP-Laban intended to sue as an organization of citizens in pursuit of the right to information of such citizens, it did not so state in its petition. As such, the Court could not be satisfied that its participation in the controversy would ensure concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[8] A final point. Petitioners Senate of the Philippines et al., by Manifestation dated April 25, 2006, called this Courts attention to the inadvertent omission, in the title of the petition in G.R. No. 169777, of the name of Senator Manuel B. Villar, Jr. The Manifestation reiterated an earlier Manifestation dated October 24, 2005 requesting that Senator Villars name be included in the title of said petition. Finding the Manifestations well-taken, the title of G.R. No. 169777 is hereby amended to reflect the name of SenatorVillar as one of the petitioners. WHEREFORE, the MOTION FOR RECONSIDERATION of Respondents dated May 18, 2006 and the MOTION FOR RECONSIDERATION of Petitioner PDP-Laban dated May 17, 2006 are DENIED WITH FINALITY for lack of merit. The title of G.R. No. 169777 is amended to include the name Senator Manuel B. Villar, Jr. as one of the petitioners. SO ORDERED.
Duenas vs HRET
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 191550 May 4, 2010
HENRY "JUN" DUEAS, JR., Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ANGELITO "JETT" P. REYES, Respondents. DECISION PERALTA, J.: This resolves the Petition for Certiorari under Rule 65 of the Rules of Court praying that the Decision1 of the House of Representatives Electoral Tribunal (HRET) dated February 25, 2010 and its Resolution2 dated March 18, 2010 be declared null and void ab initio. Petitioner was proclaimed as the Congressman for the Second Legislative District of Taguig City. Private respondent filed an election protest with the HRET. After revision of ballots in 100% of the protested precincts and 25% of the counter-protested precincts, the case was submitted for resolution upon the parties' submission of memoranda. However, in its Order3 dated September 25, 2008, the HRET directed the continuation of the revision and appreciation of ballots for the remaining 75% of the counter-protested precincts. Petitioner's motion for reconsideration of said Order was denied in a HRET Resolution dated October 21, 2008 which reiterated the Order to continue revision in the remaining 75% of the counter-protested precincts. Petitioner then filed a petition for certiorari with this Court docketed as G.R. No. 185401, seeking the nullification of said order of revision, alleging that it was issued with grave abuse of discretion. On July 21, 2009, the Court promulgated a Decision dismissing the petition. Said Decision became final and executory and the HRET continued the proceeding in the electoral protest case. On February 25, 2010, the HRET promulgated its Decision which declared private respondent as the winner with a margin of 37 votes. In the instant petition, the main thrust of petitioner's argument is that since private respondent's margin of votes is merely 37, this shows that the alleged reason for the HRET's order of revision, i.e., that the proclaimed results of the congressional elections in Taguig City have been substantially affected by the results of the initial revision and appreciation of ballots, is baseless. Petitioner then continued to reiterate his arguments raised in his earlier petition for certiorari seeking the nullification of the HRET Resolution dated October 21, 2008. He also pointed out that the three Justices of the Court who are members of the HRET took no part in the HRET's Decision and Resolution denying reconsideration. In his Comment, private respondent counters that petitioner's allegations do not show grave abuse of discretion on the part of the HRET. The Court resolves to dismiss the petition for lack of merit.
Duenas vs HRET
It is hornbook principle that this Court's jurisdiction to review decisions and orders of electoral tribunals is exercised only upon showing of grave abuse of discretion committed by the tribunal; otherwise, the Court shall not interfere with the electoral tribunals exercise of its discretion or jurisdiction.4 Grave abuse of discretion has been defined as the capricious and whimsical exercise of judgment, the exercise of power in an arbitrary manner, where the abuse is so patent and gross as to amount to an evasion of positive duty.5 Such showing of grave abuse of discretion is sorely wanting in this case. Petitioner dwells on his theory that there was no justification for the HRET's Order to continue the revision of ballots in 75% of the counter-protested precincts. Since it was eventually determined that private respondent's margin of votes is only 37, this allegedly shows that the results of the initial revision of ballots really had no substantial effect on the proclaimed results and, thus, the order for continuation of revision of ballots was uncalled for. In petitioner's view, the HRET's continuation of revision of ballots, in addition to the circumstance that none of the Supreme Court Justices who are members of the HRET took part in the Decision, are proof that the HRET committed grave abuse of discretion.
1avvphi1
The Court has long declared in Dueas, Jr. v. House of Representatives Electoral Tribunal,6 that the HRET was acting well within the rules when it ordered the continuation of revision of ballots. Petitioner cannot resurrect his claims, which had been finally adjudged unmeritorious by this Court, through the present petition. Thus, the fact that the HRET went on with the revision of ballots in 75% of the counter-protested precincts cannot be considered as grave abuse of discretion on the part of the electoral tribunal. Likewise, the circumstance that none of the three Supreme Court Justices took part in the Decision, cannot be taken as proof of grave abuse of discretion. Rule 89 of the 2004 Rules of the House of Representatives Electoral Tribunal provides that "[f]or rendition of decisions and the adoption of formal resolutions, the concurrence of at least five (5) Members shall be necessary." The HRET Decision dated February 25, 2010 had the concurrence of six of its members. Verily, the HRET was acting in accordance with its rules and cannot be said to have committed any abuse of its discretion. WHEREFORE, the petition is DISMISSED for lack of merit. The Decision dated February 25, 2010 and the Resolution dated March 18, 2010 of the House of Representatives Electoral Tribunal are AFFIRMED. SO ORDERED.
Drilon vs De Venecia
EN BANC
FRANKLIN M. DRILON as President and in representation of the LIBERAL PARTY OF THE PHILIPPINES (LP), AND HON. JOSEPH EMILIO A. ABAYA, HON. WAHAB M. AKBAR, HON. MARIA EVITA R. ARAGO, HON. PROCESSO J. ALCALA, HON. ROZZANO RUFINO BIAZON, HON. MARY MITZI CAJAYON, HON. FREDENIL H. CASTRO, HON. GLENN ANG CHONG, HON. SOLOMON R. CHUNGALAO, HON. PAUL RUIZ DAZA, HON. ANTONIO A. DEL ROSARIO, HON. CECILIA S. LUNA, HON. MANUEL M. MAMBA, HON. HERMILANDO I. MANDANAS, HON. ALVIN SANDOVAL, HON. LORENZO R. TAADA III, HON. REYNALDO S. UY, HON. ALFONSO V. UMALI JR., HON. LIWAYWAY VINZONS-CHATO, Petitioners,
G.R. No. 180055
Present:
PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO,
-versus-
BRION,* PERALTA, and
HON. JOSE DE VENECIA JR. in his official capacity as Speaker of the House of Representatives; HON. ARTHUR D. DEFENSOR, SR., in his official capacity as Majority Floor Leader of the House of
BERSAMIN, JJ.
Promulgated:
Representatives, HON. MANUEL B. VILLAR, in his official capacity as exofficio Chairman of the Commission on Appointments, ATTY. MA. GEMMA D. ASPIRAS, in her official capacity as Secretary of the Commission on Appointments, HON. PROSPERO C. NOGRALES, HON. EDGARDO C. ZIALCITA, HON. ABDULLAH D. DIMAPORO, HON. JOSE CARLOS V. LACSON, HON. EILEEN R. ERMITA-BUHAIN, HON. JOSE V. YAP, HON. RODOLFO T. ALBANO III, HON. EDUARDO R. GULLAS, HON. CONRADO M. ESTRELLA III, HON. RODOLFO OMPONG PLAZA, HON. EMMYLOU J. TALIO-MENDOZA and HON. EMMANUEL JOEL J. VILLANUEVA, in their individual official capacities as elected members of the Commission on Appointments, Respondents.
July 31, 2009
x----------------------x
SENATOR MA. ANA CONSUELO A.S. MADRIGAL, Petitioner,
- versus -
SENATOR MANUEL VILLAR in his capacity as Senate President and ExOfficio Chairman of the Commissionon Appointments, REPRESENTATIVE PROSPERO NOGRALES in his capacity as the Speaker of the House of Representatives, and THE COMMISSION ON APPOINTMENTS, Respondents. G.R. No. 183055
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
In August 2007, the Senate and the House of Representatives elected their respective contingents to the Commission on Appointments (CA). The contingent in the Senate to the CA was composed of the following senators with their respective political parties:
Sen. Maria Ana Consuelo A.S. Madrigal PDP-Laban Sen. Joker Arroyo Sen. Alan Peter Cayetano Sen. Panfilo Lacson Sen. Jinggoy Ejercito Estrada Sen. Juan Ponce Enrile Sen. Loren Legarda Sen. Richard Gordon Sen. Mar Roxas Sen. Lito Lapid Sen. Miriam Defensor-Santiago UNO PMP PMP NPC Lakas-CMD LP Lakas-CMD PRP KAMPI Lakas-CMD
The members of the contingent of the House of Representatives in the CA and their respective political parties were as follows: Rep. Prospero C. Nograles Rep. Eduardo C. Zialcita Rep. Abdullah D. Dimaporo Rep. Jose Carlos V. Lacson Rep. Eileen R. Ermita-Buhain Rep. Jose V. Yap Rep. Rodolfo T. Albano III Rep. Eduardo R. Gullas Rep. Rodolfo Ompong G. Plaza Lakas-CMD Lakas-CMD Lakas-CMD Lakas-CMD Lakas-CMD Lakas-CMD KAMPI KAMPI NPC
Rep. Conrado M. Estrella Rep. Emmylou J. Talio-Mendoza Rep. Emmanuel Joel J. Villanueva
NPC NP CIBAC Party List
In the second week of August 2007, petitioners in the first petition, G.R. No. 180055, went to respondent then Speaker Jose de Venecia to ask for one seat for the Liberal Party in the CA. Speaker Jose de Venecia merely said that he would study their demand.[1] During the session of the House of Representatives on September 3, 2007, petitioner in the first petition, Representative Taada, requested from the House of Representatives leadership[2] one seat in the CA for the Liberal Party.[3] To his request, Representative Neptali Gonzales II[4] begged the indulgence of the Liberal Party to allow the Legal Department to make a study on the matter.[5] In a separate move, Representative Taada, by letter of September 10, 2007, requested the Secretary General of the House of Representatives the reconstitution of the House contingent in the CA to include one seat for the Liberal Party in compliance with the provision of Section 18, Article VI of the Constitution.[6] Representative Taada also brought the matter to the attention of then Speaker De Venecia, reiterating the position that since there were at least 20 members of the Liberal Party in the 14th Congress, the party should be represented in the CA.[7] As of October 15, 2007, however, no report or recommendation was proffered by the Legal Department, drawing Representative Taada to request a report or recommendation on the matter within three days.[8]
In reply, Atty. Grace Andres of the Legal Affairs Bureau of the House of Representatives informed Representative Taada that the department was constrained to withhold the release of its legal opinion because the handling lawyer was directed to secure documents necessary to establish some of the members party affiliations.[9] Hence spawned the filing on October 31, 2007 of the first petition by petitioner former Senator Franklin M. Drilon (in representation of the Liberal Party), et al., for prohibition, mandamus, and quo warranto with prayer for the issuance of writ of preliminary injunction and temporary restraining order, against then Speaker De Venecia, Representative Arthur Defensor, Sr. in his capacity as Majority Floor Leader of the House of Representatives, Senator Manuel B. Villar in his capacity as ex officio chairman of the CA, Atty. Ma. Gemma D. Aspiras in her capacity as Secretary of the CA, and the individual members of the House of Representatives contingent to the CA.[10] The petition in G.R. No. 180055 raises the following issues:
a. WHETHER THE LIBERAL PARTY WITH AT LEAST TWENTY (20) MEMBERS WHO SIGNED HEREIN AS PETITIONERS, IS CONSTITUTIONALLY ENTITLED TO ONE (1) SEAT IN THE COMMISSION ON APPOINTMENTS. b. WHETHER THE HOUSE OF REPRESENTATIVES RESPONDENTS HAVE COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CONSTITUTING THE COMMISSION ON APPOINTMENTS IN CONTRAVENTION OF THE REQUIRED PROPORTIONAL CONSTITUTION BY DEPRIVING THE LIBERAL PARTY OF ITS CONSTITUTIONAL ENTITLEMENT TO ONE (1) SEAT THEREIN. c. WHETHER AS A RESULT OF THE GRAVE ABUSE OF DISCRETION COMMITTED BY THE HOUSE OF REPRESENTATIVES RESPONDENTS, THE WRITS PRAYED FOR IN THIS PETITION BE ISSUED NULLIFYING THE CURRENT COMPOSITION OF THE COMMISSION ON APPOINTMENTS, RESTRAINING THE CURRENT HOUSE OF REPRESENTATIVE MEMBERS FROM SITTING AND PARTICIPATING IN THE PROCEEDINGS OF THE COMMISSION ON APPOINTMENTS, OUSTING THE AFFECTED RESPONDENTS WHO USURPED, INTRUDED INTO AND UNLAWFULLY HELD POSITIONS IN THE COMMISSION ON APPOINTMENTS AND REQUIRING THE RESPONDENTS TO
Drilon vs De Venecia RECONSTITUTE AND/OR REELECT THE MEMBERS OF SAID COMMISSION.[11] (Italics in the original)
And it prays that this Court:

a. Immediately upon the filing of the instant Petition, issue a Temporary Restraining Order and/or a Writ of Preliminary Prohibitory and Mandatory Injunction, enjoining all Respondents and all persons under their direction, authority, supervision, and control from further proceeding with their actions relating to the illegal and unconstitutional constitution of the Commission on Appointments and to the unlawful exercise of its members functions, contrary to the rule on proportional representation of political parties with respect to the House of Representatives contingent in the said Commission; After careful consideration of the merits of the case, render judgment making the injunction permanent and ordering Respondents and all persons under their direction, authority, supervision, and control; xxxx c. Declare Respondents action in not allotting one (1) seat to Petitioners null and void for being a direct violation of Section 18, Article VI of the Constitution; Declare the proceedings of the Commission on Appointments null and void, insofar as they violate the rule on proportional representation of political parties in said Commission; Oust the affected respondents, whoever they are, who usurped, intruded into and have unlawfully held positions in the Commission on Appointments and Require Respondents to alter, reorganize, reconstitute and reconfigure the composition of the Commission on Appointments in accordance with proportional representation based on the actual numbers of members belonging to duly accredited and registered political parties who were elected into office during the last May 14, 2007 Elections by, at the very least, respecting and allowing Congressman Alfonso V. Umali, Jr. as the duly nominated Commission on Appointments member of the Liberal Party of the Philippines to sit therein as such.[12]
b.
d.
e.
f.
Respondents Senator Villar and CA Secretary Aspiras filed their Comment[13] on December 6, 2007, moving for the dismissal of the petition on these grounds:
I. THE POWER TO ELECT MEMBERS TO THE COMMISSION ON APPOINTMENTS BELONGS TO EACH HOUSE OF CONGRESS PURSUANT TO THE CONSTITUTION. AS SUCH, THE PETITION IS NOT DIRECTED AT THE HEREIN RESPONDENTS. THE CONSTITUTION DOES NOT REQUIRE THAT THE COMMISSION MUST HAVE COMPLETE MEMBERSHIP IN ORDER THAT IT CAN FUNCTION. WHAT THE CONSTITUTION REQUIRES IS THAT THERE MUST AT LEAST BE A MAJORITY OF ALL THE MEMBERS OF THE COMMISSION FOR IT TO VALIDLY CONDUCT ITS PROCEEDINGS AND TRANSACT ITS BUSINESS.[14] (Emphasis in the original)
II.
Then Speaker De Venecia and Representative Defensor filed their Comment and Opposition[15] on February 18, 2008, moving too for the dismissal of the petition on these grounds:
I. THE ACTS COMPLAINED OF DO NOT CONSTITUTE GRAVE ABUSE OF DISCRETION THAT WILL JUSTIFY THE GRANT OF THE EXTRAORDINARY WRIT OF MANDAMUS.[16] THE LIBERAL PARTY DOES NOT POSSESS THE REQUISITE NUMBER OF MEMBERS THAT WOULD ENTITLE THE PARTY TO A SEAT IN THE COMMISSION ON APPOINTMENTS. IT IS, THEREFORE, NOT THE PROPER PARTY TO INSTITUTE THE INSTANT PETITION FOR QUO WARRANTO.[17] THE PETITIONERS FAILED TO EXHAUST THE REMEDIES AVAILABLE TO THEM. [18] THE CONFLICTING CLAIMS OF THE PARTIES AS TO THE AFFILIATION OF THE MEMBERS NEED TO BE SETTLED IN A TRIAL.[19] (Emphasis in the original)
II.
III. IV.
Meantime, Senator Ma. Ana Consuelo A.S. Madrigal of PDP-Laban, by separate letters of April 17, 2008 to Senator Villar and Speaker Prospero
Nograles, claimed that the composition of the Senate contingent in the CA violated the constitutional requirement of proportional representation for the following reasons:
1. PMP has two representatives in the CA although it only has two members in the Senate and thus [is] entitled only to one (1) seat. KAMPI has only one (1) member in the Senate and thus is not entitled to a CA seat and yet it is represented in the CA. PRP has only one (1) member in the Senate and thus is not entitled to a CA seat and yet it is represented in the CA. If Senators Richard Gordon and Pilar Juliana Cayetano are Independents, then Sen. Gordon cannot be a member of the CA as Independents cannot be represented in the CA even though there will be three Independents in the CA. If Sen. Alan Peter Cayetano is now NP, he still can sit in the CA representing NP.[20]
2.
3.
4.
5.
She also claimed that the composition of the House of Representatives contingent in the CA violated the constitutional requirement of proportional representation for the following reasons:
1. Lakas-CMD currently has five (5) members in the Commission on Appointments although it is entitled only to four (4) representatives and thus [is] in excess of a member; KAMPI currently has three (3) members in the Commission on Appointments although it is entitled only to two (2) representatives and thus is excess of a member; Liberal Party is not represented in the Commission on Appointments although it is entitled to one (1) nominee; and Party-List CIBAC has a representative in the Commission on Appointments although it only has two members in the House of Representatives and therefore [is] not entitled to any seat.[21]
2.
3.
4.
Senator Madrigal thus requested the reorganization of the membership of the CA and that, in the meantime, all actions of *the+ CA be held in abeyance as the same may be construed as illegal and unconstitutional.[22] By letter of May 13, 2008, Senator Madrigal again wrote Senator Villar as follows:
Today, I was advised that the Committee on Budget and Management of Senator Mar Roxas has endorsed the ad interim appointment of Rolando G. Andaya as Secretary of the Department of Budget and Management for approval by the CA in the plenary. I believe it is imperative that the serious constitutional questions that I have raised be settled before the plenary acts on this endorsement by the Committee on Budget and Management. Otherwise, like Damocles sword, a specter of doubt continues to be raised on the validity of actions taken by the CA and its committees.[23]
Still later or on May 19, 2008, Senator Madrigal sent another letter to Senator Villar declaring that she cannot in good conscience continue to participate in the proceedings of the CA, until such time as [she] get[s] a response to *her+ letters and until the constitutional issue of the CAs composition is resolved by the leadership of the Commission,[24] and that without any such resolution, she would be forced to invoke Section 20 of the CA rules against every official whose confirmation would be submitted to the body for deliberation.[25] The CA Committee on Rules and Resolutions, by letter-comment of May 26, 2008, opined that the CA has neither the power nor the discretion to reject a member who is elected by either House, and that any complaints about the election of a member or members should be addressed to the body that elected them.[26]
By letter of May 28, 2008, Senator Villar advised Senator Madrigal as follows:
xxxx Noting your position that you will not continue to participate in the proceedings of the CA until the constitutional issue of the CAs composition is resolved by the leadership of the Commission x x x, the Secretary of the Commission, upon my instructions, transmitted the same to the CA Committee on Rules and Resolutions. It was my intention to have the Committee study and deliberate on the matter and to recommend what step/s to take on your request that all actions of the Commission be held in abeyance x x x. In view however, of your manifestation during the May 26, 2008 meeting of the CA Committee on Rules and Resolutions, and of the writtencomment of Sen. Arroyo that If there is a complaint in the election of a member or members, it shall be addressed to the body that elected them, namely the Senate and/or the House, I have given instructions to transmit the original copies of your letters to the Senate Secretary for their immediate inclusion in the Order of Business of the Session of the Senate so that your concerns may be addressed by the Senate in caucus and/or in plenary.[27] (Emphasis and underscoring supplied)
Undaunted, Senator Madrigal, by letter of June 2, 2008 addressed to Senator Villar, reiterated her request that all actions of the CA be held in abeyance pending the reorganization of both the Senate and House of Representatives contingents.[28] Senator Madrigal thereafter filed on June 13, 2008 the second petition, G.R. No. 183055, for prohibition and mandamus with prayer for issuance of temporary restraining order/writ of preliminary injunction against Senator Villar in his capacity as Senate President and ExOfficio Chairman of the CA, Speaker Nograles, and the CA,[29] alleging that
respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction

A. . . . IN FAILING TO COMPLY WITH THE CONSTITUTIONALLY REQUIRED PROPORTIONAL PARTY REPRESENTATION OF THE MEMBERS OF THE COMMISSION ON APPOINTMENTS; . . . IN CONTINUOUSLY CONDUCTING HEARINGS AND PROCEEDINGS ON THE APPOINTMENTS DESPITE THE COMMISSION ON APPOINTMENTS UNCONSTITUTIONAL COMPOSITION WHICH MUST BE PROHIBITED BY THIS HONORABLE COURT; and . . . IN FAILING, DESPITE REPEATED DEMANDS FROM PETITIONER, TO REORGANIZE THE COMMISSION ON APPOINTMENTS IN ACCORDANCE WITH THE MANDATED PROPORTIONAL PARTY REPRESENTATION OF THE 1987 CONSTITUTION, WHICH REQUIREMENT MUST BE ENFORCED BY THIS HONORABLE COURT.[30] (Emphasis in the original)
B.
C.
She thus prayed for the

1. . . . issu[ance of] a temporary restraining order/a writ of preliminary injunction to enjoin Respondents from proceeding with their illegal and unlawful actions as officials and members of the Commission on Appointments which composition is unconstitutional, pending resolution of the instant Petition; Declar[ation that] the composition of the Commission on Appointments [is] null and void insofar as it violates the proportional party representation requirement mandated by Article VI, Section 18 of the 1987 Philippine Constitution; Issu[ance of] a Writ of Prohibition against respondents Senate President Manuel Villar, Speaker Prospero Nograles and Secretary Gemma Aspiras to desist from further proceeding with their illegal and unlawful actions as officers of the Commission on Appointments, the composition of which is null and void for being violative of the proportional party representation requirement under Article VI, Section 18 of the 1987 Philippine Constitution; and Issu[ance of] a Writ of Mandamus commanding respondents Senate President Manuel Villar, Speaker Prospero Nograles and Secretary Gemma Aspiras to
2.
3.
4.
Drilon vs De Venecia reorganize and reconstitute the Commission on Appointments in accordance with the 1987 Constitution.[31]
The Court consolidated G.R. No. 180055[32] and G.R. No. 183055 on July 1, 2008. Petitioners in the first petition, G.R. No. 180055, later filed on August 15, 2008 a Motion with Leave of Court to Withdraw the Petition,[33] alleging that with the designation of Representative Alfonso V. Umali, Jr. of the Liberal Party as a member of the House of Representatives contingent in the CA in replacement of Representative Eduardo M. Gullas of KAMPI, their petition had become moot and academic. In his Comment of August 19, 2008 on the second petition, respondent Senator Villar proffered the following arguments:
I. Petitioner has no standing to file [the] petition. II. Petitioner failed to observe the doctrine of primary jurisdiction or prior resort. Each House of Congress has the sole function of reconstituting or changing the composition of its own contingent to the CA. III. Petitioner is estopped. IV. Presumption of regularity in the conduct of official functions. V.
Drilon vs De Venecia The extraordinary remedies of Prohibition and Mandamus and the relief of a TRO are not available to the Petitioner.[34] (Emphasis in the original; underscoring supplied)
In his Comment and Opposition[35] filed on September 3, 2008, Speaker Nograles proffered the following arguments:
A. WITH RESPECT TO THE HOUSE OF REPRESENTATIVES, THE PETITIONS HAVE ALREADY BECOME MOOT AND ACADEMIC UPON THE ELECTION OF REPRESENTATIVE ALFONSO V. UMALI, JR., MEMBER OF THE LIBERAL PARTY, TO THE HOUSE CONTINGENT TO THE COMMISSION ON APPOINTMENTS. [36] THE ACTS COMPLAINED OF DO NOT CONSTITUTE GRAVE ABUSE OF DISCRETION THAT WILL JUSTIFY THE ASSUMPTION OF JURISDICTION BY THE HONORABLE COURT AND THE GRANT OF THE EXTRAORDINARY WRITS OF MANDAMUS AND PROHIBITION.[37] THE REMEDY OF THOSE WHO SEEK TO RECONSTITUTE THE HOUSE CONTINGENT TO THE COMMISSION ON APPOINTMENTS RESTS, IN THE FIRST INSTANCE, WITH THE HOUSE OF REPRESENTATIVES.[38] CONSIDERING THE AFOREMENTIONED FACTS AND JURISPRUDENCE, IT IS SUBMITTED THAT SENATOR MADRIGAL HAS NO STANDING TO PURSUE THE INSTANT CASE. THE PETITION IS NOT ACCOMPANIED BY A VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING AS REQUIRED BY RULE 65 SECTIONS 2 AND 3 AND SUPREME COURT ADMINISTRATIVE CIRCULAR NO. 28-91. (Emphasis and underscoring in the original)
B.
C.
D.
E.
The first petition, G.R. No. 180055, has thus indeed been rendered moot with the designation of a Liberal Party member of the House contingent to the CA, hence, as prayed for, the petition is withdrawn. As for the second petition, G.R. No. 183055, it fails.
Senator Madrigal failed to show that she sustained direct injury as a result of the act complained of.[39] Her petition does not in fact allege that she or her political party PDP-Laban was deprived of a seat in the CA, or that she or PDP-Laban possesses personal and substantial interest to confer on her/it locus standi. Senator Madrigals primary recourse rests with the respective Houses of Congress and not with this Court. The doctrine ofprimary jurisdiction dictates that prior recourse to the House is necessary before she may bring her petition to court.[40] Senator Villars invocation of said doctrine is thus well-taken, as is the following observation of Speaker Nograles, citing Sen. Pimentel, Jr. v. House of Representatives Electoral Tribunal:[41]
In order that the remedies of Prohibition and Mandamus may be availed of, there must be no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law. It is worth recalling that, in the 11th Congress, Senator Aquilino Pimentel advocated the allocation of a position in the Commission on Appointments for the Party-List Representatives. Just like the Petitioner in the instant case, Senator Pimentel first wrote to the Senate President, requesting that the Commission on Appointments be restructured to conform to the constitutional provision on proportional representation. xxx Without awaiting final determination of the question xxx, Pimentel filed a Petition for Prohibition and Mandamus with the Supreme Court. In the said case, the Honorable Court ruled: The Constitution expressly grants to the House of Representatives the prerogative, within constitutionally defined limits, to choose from among its district and party-list representatives those who may occupy the seats allotted to the House in the HRET and the CA. Section 18, Article VI of the Constitution explicitly confers on the Senate and on the House the authority to elect among their members those who would fill the 12 seats for Senators and 12 seats for House members in the Commission on Appointments. Under Section 17, Article VI of the Constitution, each chamber exercises the power to choose, within constitutionally defined limits, who among their members would
Drilon vs De Venecia occupy the allotted 6 seats of each chambers respective electoral tribunal. x x xx Thus, even assuming that party-list representatives comprise a sufficient number and have agreed to designate common nominees to the HRET and the CA, their primary recourse clearly rests with the House of Representatives and not this Court. Under Sections 17 and 18, Article VI of the Constitution, party-list representatives must first show to the House that they possess the required strength to be entitled to seats in the HRET and the CA. Only if the House fails to comply with the directive of the Constitution on proportional representation of political parties in the HRET and the CA can the party-list representatives seek recourse to this Court under its power of judicial review. Under the doctrine of primary jurisdiction, prior recourse to the House is necessary before petitioners may bring the instant case to the court. Consequently, petitioners direct recourse to this Court is premature.
Following the ruling in Pimentel, it cannot be said that recourse was already had in the House of Representatives. Furnishing a copy of Petitioners letter to the Senate President and to the Speaker of the House of Representatives does not constitute the primary recourse required prior to the invocation of the jurisdiction of the Supreme Court. Further, it is the Members of the House who claim to have been deprived of a seat in the Commission on Appointments that must first show to the House that they possess the required numerical strength to be entitled to seats in the Commission on Appointments. Just like Senator Pimentel, demanding seats in the Commission on Appointments for Congressmen, who have not even raised the issue of its present composition in the House, is not Senator Madrigals affair.[42] (Italics, underscoring, and emphasis supplied by Representative Nograles)
It bears noting that Senator Villar had already transmitted original copies of Senator Madrigals letters to the Senate Secretary for inclusion in the Order of Business of the Session of the Senate to address her concerns. Senator Madrigals filing of the secondpetition is thus premature.
Senator Madrigals suggestion that Senators Pilar Juliana Cayetano and Richard Gordon be considered independent senators such that the latter should not be allowed to be a member of the CA,[43] and that Senator Alan Peter Cayetano be considered a member of the NP such that he may sit in the CA as his inclusion in NP will entitle his party to one seat involves a determination of party affiliations, a question of fact which the Court does not resolve. WHEREFORE, the Motion with Leave of Court to Withdraw the Petition in G.R. No. 180055 is GRANTED. The Petition is WITHDRAWN. The Petition in G.R. No. 183055 is DISMISSED.
SO ORDERED.
Pobre vs Defensor-Santiago
Republic of the Philippines SUPREME COURT Manila THIRD DIVISION A.C. No. 7399 August 25, 2009
ANTERO J. POBRE, Complainant, vs. Sen. MIRIAM DEFENSOR-SANTIAGO, Respondent. DECISION VELASCO, JR., J.: In his sworn letter/complaint dated December 22, 2006, with enclosures, Antero J. Pobre invites the Courts attention to the following excerpts of Senator Miriam Defensor-Santiagos speech delivered on the Senate floor: x x x I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal. I am humiliated, debased, degraded. And I am not only that, I feel like throwing up to be living my middle years in a country of this nature. I am nauseated. I spit on the face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court, I am no longer interested in the position [of Chief Justice] if I was to be surrounded by idiots. I would rather be in another environment but not in the Supreme Court of idiots x x x. To Pobre, the foregoing statements reflected a total disrespect on the part of the speaker towards then Chief Justice Artemio Panganiban and the other members of the Court and constituted direct contempt of court. Accordingly, Pobre asks that disbarment proceedings or other disciplinary actions be taken against the lady senator. In her comment on the complaint dated April 25, 2007, Senator Santiago, through counsel, does not deny making the aforequoted statements. She, however, explained that those statements were covered by the constitutional provision on parliamentary immunity, being part of a speech she delivered in the discharge of her duty as member of Congress or its committee. The purpose of her speech, according to her, was to bring out in the open controversial anomalies in governance with a view to future remedial legislation. She averred that she wanted to expose what she believed "to be an unjust act of the Judicial Bar Council [JBC]," which, after sending out public invitations for nomination to the soon to-be vacated position of Chief Justice, would eventually inform applicants that only incumbent justices of the Supreme Court would qualify for nomination. She felt that the JBC should have at least given an advanced advisory that non-sitting members of the Court, like her, would not be considered for the position of Chief Justice. The immunity Senator Santiago claims is rooted primarily on the provision of Article VI, Section 11 of the Constitution, which provides: "A Senator or Member of the House of Representative shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session.No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof." Explaining the import of the underscored portion of the provision, the Court, in Osmea, Jr. v. Pendatun, said:
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 resentment of every one, however, powerful, to whom the exercise of that liberty may occasion offense."1 As American jurisprudence puts it, this legislative privilege is founded upon long experience and arises as a means of perpetuating inviolate the functioning process of the legislative department. Without parliamentary immunity, parliament, or its equivalent, would degenerate into a polite and ineffective debating forum. Legislators are immune from deterrents to the uninhibited discharge of their legislative duties, not for their private indulgence, but for the public good. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a judges speculation as to the motives.2 This Court is aware of the need and has in fact been in the forefront in upholding the institution of parliamentary immunity and promotion of free speech. Neither has the Court lost sight of the importance of the legislative and oversight functions of the Congress that enable this representative body to look diligently into every affair of government, investigate and denounce anomalies, and talk about how the country and its citizens are being served. Courts do not interfere with the legislature or its members in the manner they perform their functions in the legislative floor or in committee rooms. Any claim of an unworthy purpose or of the falsity and mala fides of the statement uttered by the member of the Congress does not destroy the privilege.3 The disciplinary authority of the assembly4 and the voters, not the courts, can properly discourage or correct such abuses committed in the name of parliamentary immunity.5 For the above reasons, the plea of Senator Santiago for the dismissal of the complaint for disbarment or disciplinary action is well taken. Indeed, her privilege speech is not actionable criminally or in a disciplinary proceeding under the Rules of Court. It is felt, however, that this could not be the last word on the matter. The Court wishes to express its deep concern about the language Senator Santiago, a member of the Bar, used in her speech and its effect on the administration of justice. To the Court, the lady senator has undoubtedly crossed the limits of decency and good professional conduct. It is at once apparent that her statements in question were intemperate and highly improper in substance. To reiterate, she was quoted as stating that she wanted "to spit on the face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court," and calling the Court a "Supreme Court of idiots." The lady senator alluded to In Re: Vicente Sotto.6 We draw her attention to the ensuing passage in Sotto that she should have taken to heart in the first place: x x x [I]f the people lose their confidence in the honesty and integrity of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos would be the result.
1avv phi 1
No lawyer who has taken an oath to maintain the respect due to the courts should be allowed to erode the peoples faith in the judiciary. In this case, the lady senator clearly violated Canon 8, Rule 8.01 and Canon 11 of the Code of Professional Responsibility, which respectively provide:
Canon 8, Rule 8.01.A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper. Canon 11.A lawyer shall observe and maintain the respect due to the courts and to the judicial officers and should insist on similar conduct by others. Senator/Atty. Santiago is a cut higher than most lawyers. Her achievements speak for themselves. She was a former Regional Trial Court judge, a law professor, an oft-cited authority on constitutional and international law, an author of numerous law textbooks, and an elected senator of the land. Needless to stress, Senator Santiago, as a member of the Bar and officer of the court, like any other, is duty-bound to uphold the dignity and authority of this Court and to maintain the respect due its members. Lawyers in public service are keepers of public faith and are burdened with the higher degree of social responsibility, perhaps higher than their brethren in private practice.7Senator Santiago should have known, as any perceptive individual, the impact her statements would make on the peoples faith in the integrity of the courts. As Senator Santiago alleged, she delivered her privilege speech as a prelude to crafting remedial legislation on the JBC. This allegation strikes the Court as an afterthought in light of the insulting tenor of what she said. We quote the passage once more: x x x I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal. I am humiliated, debased, degraded. And I am not only that, I feel like throwing up to be living my middle years in a country of this nature. Iam nauseated. I spit on the face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court, I am no longer interested in the position [of Chief Justice] if I was to be surrounded by idiots. I would rather be in another environment but not in the Supreme Court of idiots x x x. (Emphasis ours.) A careful re-reading of her utterances would readily show that her statements were expressions of personal anger and frustration at not being considered for the post of Chief Justice. In a sense, therefore, her remarks were outside the pale of her official parliamentary functions. Even parliamentary immunity must not be allowed to be used as a vehicle to ridicule, demean, and destroy the reputation of the Court and its magistrates, nor as armor for personal wrath and disgust. Authorities are agreed that parliamentary immunity is not an individual privilege accorded the individual members of the Parliament or Congress for their personal benefit, but rather a privilege for the benefit of the people and the institution that represents them. To be sure, Senator Santiago could have given vent to her anger without indulging in insulting rhetoric and offensive personalities. Lest it be overlooked, Senator Santiagos outburst was directly traceable to what she considered as an "unjust act" the JBC had taken in connection with her application for the position of Chief Justice. But while the JBC functions under the Courts supervision, its individual members, save perhaps for the Chief Justice who sits as the JBCs ex-officio chairperson,8 have no official duty to nominate candidates for appointment to the position of Chief Justice. The Court is, thus, at a loss to understand Senator Santiagos wholesale and indiscriminate assault on the members of the Court and her choice of critical and defamatory words against all of them. At any event, equally important as the speech and debate clause of Art. VI, Sec. 11 of the Constitution is Sec. 5(5) of Art. VIII of the Constitution that provides: Section 5. The Supreme Court shall have the following powers:
xxxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of the law, the Integrated Bar, and legal assistance to the underprivileged. (Emphasis ours.) The Court, besides being authorized to promulgate rules concerning pleading, practice, and procedure in all courts, exercises specific authority to promulgate rules governing the Integrated Bar with the end in view that the integration of the Bar will, among other things: (4) Shield the judiciary, which traditionally cannot defend itself except within its own forum, from the assaults that politics and self interest may level at it, and assist it to maintain its integrity, impartiality and independence; xxxx (11) Enforce rigid ethical standards x x x.9 In Re: Letter Dated 21 February 2005 of Atty. Noel S. Sorreda,10 we reiterated our pronouncement in Rheem of the Philippines v. Ferrer11 that the duty of attorneys to the courts can only be maintained by rendering no service involving any disrespect to the judicial office which they are bound to uphold. The Court wrote in Rheem of the Philippines: x x x As explicit is the first canon of legal ethics which pronounces that "[i]t is the duty of a lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance." That same canon, as a corollary, makes it peculiarly incumbent upon lawyers to support the courts against "unjust criticism and clamor." And more. The attorneys oath solemnly binds him to a conduct that should be "with all good fidelity x x x to the courts." Also, in Sorreda, the Court revisited its holding in Surigao Mineral Reservation Board v. Cloribel12 that: A lawyer is an officer of the courts; he is, "like the court itself, an instrument or agency to advance the ends of justice." His duty is to uphold the dignity and authority of the courts to which he owes fidelity, "not to promote distrust in the administration of justice." Faith in the courts, a lawyer should seek to preserve. For, to undermine the judicial edifice "is disastrous to the continuity of government and to the attainment of the liberties of the people." Thus has it been said of a lawyer that "[a]s an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice."13 The lady senator belongs to the legal profession bound by the exacting injunction of a strict Code. Society has entrusted that profession with the administration of the law and dispensation of justice. Generally speaking, a lawyer holding a government office may not be disciplined as a member of the Bar for misconduct committed while in the discharge of official duties, unless said misconduct also constitutes a violation of his/her oath as a lawyer.14 Lawyers may be disciplined even for any conduct committed in their private capacity, as long as their misconduct reflects their want of probity or good demeanor,15 a good character being an essential qualification for the admission to the practice of law and for continuance of such privilege. When the Code of Professional Responsibility or the Rules of Court speaks of "conduct" or "misconduct," the
reference is not confined to ones behavior exhibited in connection with the performance of lawyers professional duties, but also covers any misconduct, whichalbeit unrelated to the actual practice of their professionwould show them to be unfit for the office and unworthy of the privileges which their license and the law invest in them.16 This Court, in its unceasing quest to promote the peoples faith in courts and trust in the rule of law, has consistently exercised its disciplinary authority on lawyers who, for malevolent purpose or personal malice, attempt to obstruct the orderly administration of justice, trifle with the integrity of courts, and embarrass or, worse, malign the men and women who compose them. We have done it in the case of former Senator Vicente Sotto in Sotto, in the case of Atty. Noel Sorreda in Sorreda, and in the case of Atty. Francisco B. Cruz in Tacordan v. Ang17 who repeatedly insulted and threatened the Court in a most insolent manner. The Court is not hesitant to impose some form of disciplinary sanctions on Senator/Atty. Santiago for what otherwise would have constituted an act of utter disrespect on her part towards the Court and its members. The factual and legal circumstances of this case, however, deter the Court from doing so, even without any sign of remorse from her. Basic constitutional consideration dictates this kind of disposition. We, however, would be remiss in our duty if we let the Senators offensive and disrespectful language that definitely tended to denigrate the institution pass by. It is imperative on our part to reinstill in Senator/Atty. Santiago her duty to respect courts of justice, especially this Tribunal, and remind her anew that the parliamentary non-accountability thus granted to members of Congress is not to protect them against prosecutions for their own benefit, but to enable them, as the peoples representatives, to perform the functions of their office without fear of being made responsible before the courts or other forums outside the congressional hall.18 It is intended to protect members of Congress against government pressure and intimidation aimed at influencing the decision-making prerogatives of Congress and its members. The Rules of the Senate itself contains a provision on Unparliamentary Acts and Language that enjoins a Senator from using, under any circumstance, "offensive or improper language against another Senator or against any public institution."19 But as to Senator Santiagos unparliamentary remarks, the Senate President had not apparently called her to order, let alone referred the matter to the Senate Ethics Committee for appropriate disciplinary action, as the Rules dictates under such circumstance.20 The lady senator clearly violated the rules of her own chamber. It is unfortunate that her peers bent backwards and avoided imposing their own rules on her. Finally, the lady senator questions Pobres motives in filing his complaint, stating that disciplinary proceedings must be undertaken solely for the public welfare. We cannot agree with her more. We cannot overstress that the senators use of intemperate language to demean and denigrate the highest court of the land is a clear violation of the duty of respect lawyers owe to the courts.21 Finally, the Senator asserts that complainant Pobre has failed to prove that she in fact made the statements in question. Suffice it to say in this regard that, although she has not categorically denied making such statements, she has unequivocally said making them as part of her privilege speech. Her implied admission is good enough for the Court. WHEREFORE, the letter-complaint of Antero J. Pobre against Senator/Atty. Miriam DefensorSantiago is, conformably to Art. VI, Sec. 11 of the Constitution, DISMISSED. SO ORDERED.
Liban vs Gordon
EN BANC DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M. VIARI, Petitioners, G.R. No. 175352 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, - versus CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, RICHARD J. GORDON, Respondent. LEONARDO-DE CASTRO, BRION, PERALTA, and BERSAMIN, JJ.
Promulgated: July 15, 2009 x-------------------------------------------------- x DECISION
Liban vs Gordon
CARPIO, J.:
The Case
This is a petition to declare Senator Richard J. Gordon (respondent) as having forfeited his seat in the Senate.
The Facts
Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M. Viari (petitioners) filed with this Court a Petition to Declare Richard J. Gordon as Having Forfeited His Seat in the Senate. Petitioners are officers of the Board of Directors of the Quezon City Red Cross Chapter while respondent is Chairman of the Philippine National Red Cross (PNRC) Board of Governors.
During respondents incumbency as a member of the Senate of the Philippines,[1] he was elected Chairman of the PNRC during the 23 February 2006 meeting of the PNRC Board of Governors. Petitioners allege that by accepting the chairmanship of the PNRC Board of Governors, respondent has ceased to be a member of the Senate as provided in Section 13, Article VI of the Constitution, which reads: SEC. 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the
Liban vs Gordon
emoluments thereof increased during the term for which he was elected.
Petitioners cite Camporedondo v. NLRC,[2] which held that the PNRC is a government-owned or controlled corporation. Petitioners claim that in accepting and holding the position of Chairman of the PNRC Board of Governors, respondent has automatically forfeited his seat in the Senate, pursuant to Flores v. Drilon,[3] which held that incumbent national legislators lose their elective posts upon their appointment to another government office.
In his Comment, respondent asserts that petitioners have no standing to file this petition which appears to be an action for quo warranto, since the petition alleges that respondent committed an act which, by provision of law, constitutes a ground for forfeiture of his public office. Petitioners do not claim to be entitled to the Senate office of respondent. Under Section 5, Rule 66 of the Rules of Civil Procedure, only a person claiming to be entitled to a public office usurped or unlawfully held by another may bring an action for quo warranto in his own name. If the petition is one for quo warranto, it is already barred by prescription since under Section 11, Rule 66 of the Rules of Civil Procedure, the action should be commenced within one year after the cause of the public officers forfeiture of office. In this case, respondent has been working as a Red Cross volunteer for the past 40 years. Respondent was already Chairman of the PNRC Board of Governors when he was elected Senator in May 2004, having been elected Chairman in 2003 and re-elected in 2005.
Respondent contends that even if the present petition is treated as a taxpayers suit, petitioners cannot be allowed to raise a constitutional question in the absence of any claim that they suffered some actual damage or threatened injury as a result of the allegedly illegal act of respondent. Furthermore, taxpayers are allowed to sue only when there is a claim of illegal disbursement of public funds, or that public money is being diverted to any improper purpose, or where
Liban vs Gordon
petitioners seek to restrain respondent from enforcing an invalid law that results in wastage of public funds.
Respondent also maintains that if the petition is treated as one for declaratory relief, this Court would have no jurisdiction since original jurisdiction for declaratory relief lies with the Regional Trial Court.
Respondent further insists that the PNRC is not a government-owned or controlled corporation and that the prohibition under Section 13, Article VI of the Constitution does not apply in the present case since volunteer service to the PNRC is neither an office nor an employment.
In their Reply, petitioners claim that their petition is neither an action for quo warranto nor an action for declaratory relief. Petitioners maintain that the present petition is a taxpayers suit questioning the unlawful disbursement of funds, considering that respondent has been drawing his salaries and other compensation as a Senator even if he is no longer entitled to his office. Petitioners point out that this Court has jurisdiction over this petition since it involves a legal or constitutional issue which is of transcendental importance.
The Issues
Petitioners raise the following issues:
1. Whether the Philippine National Red Cross (PNRC) is a governmentowned or controlled corporation;
Liban vs Gordon
2. Whether Section 13, Article VI of the Philippine Constitution applies to the case of respondent who is Chairman of the PNRC and at the same time a Member of the Senate;
3. Whether respondent should be automatically removed as a Senator pursuant to Section 13, Article VI of the Philippine Constitution; and
4. Whether petitioners may legally institute this petition against respondent.[4]
The substantial issue boils down to whether the office of the PNRC Chairman is a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the Constitution.
The Courts Ruling
We find the petition without merit.
Petitioners Have No Standing to File this Petition
Liban vs Gordon
A careful reading of the petition reveals that it is an action for quo warranto. Section 1, Rule 66 of the Rules of Court provides:
Section 1. Action by Government against individuals. An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which by provision of law, constitutes a ground for the forfeiture of his office; or (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. (Emphasis supplied)
Petitioners allege in their petition that:
4. Respondent became the Chairman of the PNRC when he was elected as such during the First Regular Luncheon-Meeting of the Board of Governors of the PNRC held on February 23, 2006, the minutes of which is hereto attached and made integral part hereof as Annex A.
5. Respondent was elected as Chairman of the PNRC Board of Governors, during his incumbency as a Member of the House of Senate of the Congress of the Philippines, having been elected as such during the national elections last May 2004.
Liban vs Gordon
6. Since his election as Chairman of the PNRC Board of Governors, which position he duly accepted, respondent has been exercising the powers and discharging the functions and duties of said office, despite the fact that he is still a senator. 7. It is the respectful submission of the petitioner[s] that by accepting the chairmanship of the Board of Governors of the PNRC, respondent has ceased to be a Member of the House of Senate as provided in Section 13, Article VI of the Philippine Constitution, x x x xxxx 10. It is respectfully submitted that in accepting the position of Chairman of the Board of Governors of the PNRC on February 23, 2006, respondent has automatically forfeited his seat in the House of Senate and, therefore, has long ceased to be a Senator, pursuant to the ruling of this Honorable Court in the case of FLORES, ET AL. VS. DRILON AND GORDON, G.R. No. 104732, x x x 11. Despite the fact that he is no longer a senator, respondent continues to act as such and still performs the powers, functions and duties of a senator, contrary to the constitution, law and jurisprudence. 12. Unless restrained, therefore, respondent will continue to falsely act and represent himself as a senator or member of the House of Senate, collecting the salaries, emoluments and other compensations, benefits and privileges appertaining and due only to the legitimate senators, to the damage, great and irreparable injury of the Government and the Filipino people.[5] (Emphasis supplied)
Thus, petitioners are alleging that by accepting the position of Chairman of the PNRC Board of Governors, respondent has automatically forfeited his seat in the Senate. In short, petitioners filed an action for usurpation of public office against respondent, a public officer who allegedly committed an act which constitutes a ground for the forfeiture of his public office. Clearly, such an action is for quo warranto, specifically under Section 1(b), Rule 66 of the Rules of Court.
Liban vs Gordon
Quo warranto is generally commenced by the Government as the proper party plaintiff. However, under Section 5, Rule 66 of the Rules of Court, an individual may commence such an action if he claims to be entitled to the public office allegedly usurped by another, in which case he can bring the action in his own name. The person instituting quo warranto proceedings in his own behalf must claim and be able to show that he is entitled to the office in dispute, otherwise the action may be dismissed at any stage.[6] In the present case, petitioners do not claim to be entitled to the Senate office of respondent. Clearly, petitioners have no standing to file the present petition.
Even if the Court disregards the infirmities of the petition and treats it as a taxpayers suit, the petition would still fail on the merits.
PNRC is a Private Organization Performing Public Functions
On 22 March 1947, President Manuel A. Roxas signed Republic Act No. 95, otherwise known as the PNRC Charter. The PNRC is a non-profit, donorfunded, voluntary, humanitarian organization, whose mission is to bring timely, effective, and compassionate humanitarian assistance for the most vulnerable without consideration of nationality, race, religion, gender, social status, or political affiliation.[8] The PNRC provides six major services: Blood Services, Disaster Management, Safety Services, Community Health and Nursing, Social Services and Voluntary Service.[9]
[7]
The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC as a voluntary organization for the purpose contemplated in the Geneva Convention of 27 July 1929.[10] The Whereas clauses of the PNRC Charter read:
Liban vs Gordon
WHEREAS, there was developed at Geneva, Switzerland, on August 22, 1864, a convention by which the nations of the world were invited to join together in diminishing, so far lies within their power, the evils inherent in war;
WHEREAS, more than sixty nations of the world have ratified or adhered to the subsequent revision of said convention, namely the Convention of Geneva of July 29 [sic], 1929 for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field (referred to in this Charter as the Geneva Red Cross Convention); WHEREAS, the Geneva Red Cross Convention envisages the establishment in each country of a voluntary organization to assist in caring for the wounded and sick of the armed forces and to furnish supplies for that purpose;
WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946 and proclaimed its adherence to the Geneva Red Cross Convention on February 14, 1947, and by that action indicated its desire to participate with the nations of the world in mitigating the suffering caused by war and to establish in the Philippines a voluntary organization for that purpose as contemplated by the Geneva Red Cross Convention; WHEREAS, there existed in the Philippines since 1917 a Charter of the American National Red Cross which must be terminated in view of the independence of the Philippines; and
WHEREAS, the volunteer organizations established in the other countries which have ratified or adhered to the Geneva Red Cross Convention assist in promoting the health and welfare of their people in peace and in war, and through their mutual assistance and cooperation directly and through their international organizations promote better understanding and sympathy among the peoples of the world. (Emphasis supplied)
The PNRC is a member National Society of the International Red Cross and Red Crescent Movement (Movement), which is composed of the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies (International Federation), and the National Red Cross and Red Crescent Societies (National Societies). The Movement is united and guided by its seven Fundamental Principles:
Liban vs Gordon
1. HUMANITY The International Red Cross and Red Crescent Movement, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavors, in its international and national capacity, to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, cooperation and lasting peace amongst all peoples. 2. IMPARTIALITY It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavors to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress. 3. NEUTRALITY In order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature. 4. INDEPENDENCE The Movement is independent. The National Societies, while auxiliaries in the humanitarian services of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with the principles of the Movement. 5. VOLUNTARY SERVICE It is a voluntary relief movement not prompted in any manner by desire for gain. 6. UNITY There can be only one Red Cross or one Red Crescent Society in any one country. It must be open to all. It must carry on its humanitarian work throughout its territory. 7. UNIVERSALITY The International Red Cross and Red Crescent Movement, in which all Societies have equal status and share equal responsibilities and duties in helping each other, is worldwide. (Emphasis supplied)
Liban vs Gordon
The Fundamental Principles provide a universal standard of reference for all members of the Movement. The PNRC, as a member National Society of the Movement, has the duty to uphold the Fundamental Principles and ideals of the Movement. In order to be recognized as a National Society, the PNRC has to be autonomous and must operate in conformity with the Fundamental Principles of the Movement.[11] The reason for this autonomy is fundamental. To be accepted by warring belligerents as neutral workers during international or internal armed conflicts, the PNRC volunteers must not be seen as belonging to any side of the armed conflict. In the Philippines where there is a communist insurgency and a Muslim separatist rebellion, the PNRC cannot be seen as government-owned or controlled, and neither can the PNRC volunteers be identified as government personnel or as instruments of government policy. Otherwise, the insurgents or separatists will treat PNRC volunteers as enemies when the volunteers tend to the wounded in the battlefield or the displaced civilians in conflict areas.
Thus, the PNRC must not only be, but must also be seen to be, autonomous, neutral and independent in order to conduct its activities in accordance with the Fundamental Principles. The PNRC must not appear to be an instrument or agency that implements government policy; otherwise, it cannot merit the trust of all and cannot effectively carry out its mission as a National Red Cross Society.[12] It is imperative that the PNRC must be autonomous, neutral, and independent in relation to the State.
To ensure and maintain its autonomy, neutrality, and independence, the PNRC cannot be owned or controlled by the government. Indeed, the Philippine government does not own the PNRC. The PNRC does not have government assets and does not receive any appropriation from the Philippine Congress.[13] The
Liban vs Gordon
PNRC is financed primarily by contributions from private individuals and private entities obtained through solicitation campaigns organized by its Board of Governors, as provided under Section 11 of the PNRC Charter:
SECTION 11. As a national voluntary organization, the Philippine National Red Cross shall be financed primarily by contributions obtained through solicitation campaigns throughout the year which shall be organized by the Board of Governors and conducted by the Chapters in their respective jurisdictions. These fund raising campaigns shall be conducted independently of other fund drives by other organizations. (Emphasis supplied)
The government does not control the PNRC. Under the PNRC Charter, as amended, only six of the thirty members of the PNRC Board of Governors are appointed by the President of the Philippines. Thus, twenty-four members, or four-fifths (4/5), of the PNRC Board of Governors are not appointed by the President. Section 6 of the PNRC Charter, as amended, provides:
SECTION 6. The governing powers and authority shall be vested in a Board of Governors composed of thirty members, six of whom shall be appointed by the President of the Philippines, eighteen shall be elected by chapter delegates in biennial conventions and the remaining six shall be selected by the twenty-four members of the Board already chosen. x x x.
Thus, of the twenty-four members of the PNRC Board, eighteen are elected by the chapter delegates of the PNRC, and six are elected by the twenty-four members already chosen a select group where the private sector members have three-fourths majority. Clearly, an overwhelming majority of four-fifths of the PNRC Board are elected or chosen by the private sector members of the PNRC.
Liban vs Gordon
The PNRC Board of Governors, which exercises all corporate powers of the PNRC, elects the PNRC Chairman and all other officers of the PNRC. The incumbent Chairman of PNRC, respondent Senator Gordon, was elected, as all PNRC Chairmen are elected, by a private sector-controlled PNRC Board fourfifths of whom are private sector members of the PNRC. The PNRC Chairman is not appointed by the President or by any subordinate government official.
Under Section 16, Article VII of the Constitution,[14] the President appoints all officials and employees in the Executive branch whose appointments are vested in the President by the Constitution or by law. The President also appoints those whose appointments are not otherwise provided by law. Under this Section 16, the law may also authorize the heads of departments, agencies, commissions, or boards to appoint officers lower in rank than such heads of departments, agencies, commissions or boards.[15] In Rufino v. Endriga,[16] the Court explained appointments under Section 16 in this wise:
Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of officers. The first group refers to the heads of the Executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution. The second group refers to those whom the President may be authorized by law to appoint. The third group refers to all other officers of the Government whose appointments are not otherwise provided by law.
Liban vs Gordon
Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments Congress may by law vest in the heads of departments, agencies, commissions, or boards. x x x
xxx
In a department in the Executive branch, the head is the Secretary. The law may not authorize the Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the Executive department. In an agency, the power is vested in the head of the agency for it would be preposterous to vest it in the agency itself. In a commission, the head is the chairperson of the commission. In a board, the head is also the chairperson of the board. In the last three situations, the law may not also authorize officers other than the heads of the agency, commission, or board to appoint lower-ranked officers.
xxx
The Constitution authorizes Congress to vest the power to appoint lowerranked officers specifically in the heads of the specified offices, and in no other person. The word heads refers to the chairpersons of the commissions or boards and not to their members, for several reasons.
The President does not appoint the Chairman of the PNRC. Neither does the head of any department, agency, commission or board appoint the PNRC Chairman. Thus, the PNRC Chairman is not an official or employee of the Executive branch since his appointment does not fall under Section 16, Article VII of the Constitution. Certainly, the PNRC Chairman is not an official or employee
Liban vs Gordon
of the Judiciary or Legislature. This leads us to the obvious conclusion that the PNRC Chairman is not an official or employee of the Philippine Government. Not being a government official or employee, the PNRC Chairman, as such, does not hold a government office or employment.
Under Section 17, Article VII of the Constitution,[17] the President exercises control over all government offices in the Executive branch. If an office is legally not under the control of the President, then such office is not part of the Executive branch. In Rufino v. Endriga,[18] the Court explained the Presidents power of control over all government offices as follows:
Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial branches, or must belong to one of the independent constitutional bodies, or must be a quasi-judicial body or local government unit. Otherwise, such government office, entity, or agency has no legal and constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local government unit. Thus, the CCP must fall under the Executive branch. Under the Revised Administrative Code of 1987, any agency not placed by law or order creating them under any specific department falls under the Office of the President.
Since the President exercises control over all the executive departments, bureaus, and offices, the President necessarily exercises control over the CCP which is an office in the Executive branch. In mandating that the President shall have control of all executive . . . offices, Section 17, Article VII of the 1987 Constitution does not exempt any executive office one performing executive functions outside of the independent constitutional bodies from the Presidents power of control.
Liban vs Gordon
There is no dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial functions.
The Presidents power of control applies to the acts or decisions of all officers in the Executive branch. This is true whether such officers are appointed by the President or by heads of departments, agencies, commissions, or boards. The power of control means the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion.
In short, the President sits at the apex of the Executive branch, and exercises control of all the executive departments, bureaus, and offices. There can be no instance under the Constitution where an officer of the Executive branch is outside the control of the President. The Executive branch is unitary since there is only one President vested with executive power exercising control over the entire Executive branch. Any office in the Executive branch that is not under the control of the President is a lost command whose existence is without any legal or constitutional basis. (Emphasis supplied)
An overwhelming four-fifths majority of the PNRC Board are private sector individuals elected to the PNRC Board by the private sector members of the PNRC. The PNRC Board exercises all corporate powers of the PNRC. The PNRC is controlled by private sector individuals. Decisions or actions of the PNRC Board are not reviewable by the President. The President cannot reverse or modify the decisions or actions of the PNRC Board. Neither can the President reverse or modify the decisions or actions of the PNRC Chairman. It is the PNRC Board that can review, reverse or modify the decisions or actions of the PNRC Chairman. This proves again that the office of the PNRC Chairman is a private office, not a government office.
Liban vs Gordon
Although the State is often represented in the governing bodies of a National Society, this can be justified by the need for proper coordination with the public authorities, and the government representatives may take part in decision-making within a National Society. However, the freely-elected representatives of a National Societys active members must remain in a large majority in a National Societys governing bodies.[19]
The PNRC is not government-owned but privately owned. The vast majority of the thousands of PNRC members are private individuals, including students. Under the PNRC Charter, those who contribute to the annual fund campaign of the PNRC are entitled to membership in the PNRC for one year. Thus, any one between 6 and 65 years of age can be a PNRC member for one year upon contributing P35, P100, P300, P500 or P1,000 for the year.[20] Even foreigners, whether residents or not, can be members of the PNRC. Section 5 of the PNRC Charter, as amended by Presidential Decree No. 1264,[21] reads:
SEC. 5. Membership in the Philippine National Red Cross shall be open to the entire population in the Philippines regardless of citizenship. Any contribution to the Philippine National Red Cross Annual Fund Campaign shall entitle the contributor to membership for one year and said contribution shall be deductible in full for taxation purposes.
Thus, the PNRC is a privately owned, privately funded, and privately run charitable organization. The PNRC is not a government-owned or controlled corporation.
Petitioners anchor their petition on the 1999 case of Camporedondo v. NLRC,[22] which ruled that the PNRC is a government-owned or controlled corporation. In ruling that the PNRC is a government-owned or controlled
Liban vs Gordon
corporation, the simple test used was whether the corporation was created by its own special charter for the exercise of a public function or by incorporation under the general corporation law. Since the PNRC was created under a special charter, the Court then ruled that it is a government corporation. However, the Camporedondo ruling failed to consider the definition of a governmentowned or controlled corporation as provided under Section 2(13) of the Introductory Provisions of the Administrative Code of 1987:
SEC. 2. General Terms Defined. x x x (13) Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) percent of its capital stock: Provided, That government-owned or controlled corporations may be further categorized by the Department of the Budget, the Civil Service Commission, and the Commission on Audit for purposes of the exercise and discharge of their respective powers, functions and responsibilities with respect to such corporations.(Boldfacing and underscoring supplied)
A government-owned or controlled corporation must be owned by the government, and in the case of a stock corporation, at least a majority of its capital stock must be owned by the government. In the case of a non-stock corporation, by analogy at least a majority of the members must be government officials holding such membership by appointment or designation by the
Liban vs Gordon
government. Under this criterion, and as discussed earlier, the government does not own or control PNRC.
The PNRC Charter is Violative of the Constitutional Proscription against the Creation of Private Corporations by Special Law
The 1935 Constitution, as amended, was in force when the PNRC was created by special charter on 22 March 1947. Section 7, Article XIV of the 1935 Constitution, as amended, reads:
SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations, unless such corporations are owned or controlled by the Government or any subdivision or instrumentality thereof.
The subsequent 1973 and 1987 Constitutions contain similar provisions prohibiting Congress from creating private corporations except by general law. Section 1 of the PNRC Charter, as amended, creates the PNRC as a body corporate and politic, thus:
SECTION 1. There is hereby created in the Republic of the Philippines a body corporate and politic to be the voluntary organization officially designated to assist the Republic of the Philippines in discharging the obligations set forth in the Geneva Conventions and to perform such other duties as are inherent upon a National Red Cross Society. The national headquarters of this Corporation shall be located in Metropolitan Manila. (Emphasis supplied)
In Feliciano v. Commission on Audit,[23] the Court explained the constitutional provision prohibiting Congress from creating private corporations in this wise: We begin by explaining the general framework under the fundamental law. The Constitution recognizes two classes of corporations. The first refers to private corporations created under a general law. The second refers to government-owned or controlled
Liban vs Gordon
corporations created by special charters. Section 16, Article XII of the Constitution provides: Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.
The Constitution emphatically prohibits the creation of private corporations except by general law applicable to all citizens. The purpose of this constitutional provision is to ban private corporations created by special charters, which historically gave certain individuals, families or groups special privileges denied to other citizens.
In short, Congress cannot enact a law creating a private corporation with a special charter. Such legislation would be unconstitutional. Private corporations may exist only under a general law. If the corporation is private, it must necessarily exist under a general law. Stated differently, only corporations created under a general law can qualify as private corporations. Under existing laws, the general law is the Corporation Code, except that the Cooperative Code governs the incorporation of cooperatives. The Constitution authorizes Congress to create governmentowned or controlled corporations through special charters. Since private corporations cannot have special charters, it follows that Congress can create corporations with special charters only if such corporations are government-owned or controlled.[24] (Emphasis supplied)
In Feliciano, the Court held that the Local Water Districts are governmentowned or controlled corporations since they exist by virtue of Presidential Decree No. 198, which constitutes their special charter. The seed capital assets of the Local Water Districts, such as waterworks and sewerage facilities, were public property which were managed, operated by or under the control of the city,
Liban vs Gordon
municipality or province before the assets were transferred to the Local Water Districts. The Local Water Districts also receive subsidies and loans from the Local Water Utilities Administration (LWUA). In fact, under the 2009 General Appropriations Act,[25]the LWUA has a budget amounting to P400,000,000 for its subsidy requirements.[26] There is no private capital invested in the Local Water Districts. The capital assets and operating funds of the Local Water Districts all come from the government, either through transfer of assets, loans, subsidies or the income from such assets or funds.
The government also controls the Local Water Districts because the municipal or city mayor, or the provincial governor, appoints all the board directors of the Local Water Districts. Furthermore, the board directors and other personnel of the Local Water Districts are government employees subject to civil service laws and anti-graft laws. Clearly, the Local Water Districts are considered government-owned or controlled corporations not only because of their creation by special charter but also because the government in fact owns and controls the Local Water Districts. Just like the Local Water Districts, the PNRC was created through a special charter. However, unlike the Local Water Districts, the elements of government ownership and control are clearly lacking in the PNRC. Thus, although the PNRC is created by a special charter, it cannot be considered a government-owned or controlled corporation in the absence of the essential elements of ownership and control by the government. In creating the PNRC as a corporate entity, Congress was in fact creating a private corporation. However, the constitutional prohibition against the creation of private corporations by special charters provides no exception even for non-profit or charitable corporations. Consequently, the PNRC Charter, insofar as it creates the PNRC as a private corporation and grants it corporate powers,[27] is void for being unconstitutional. Thus, Sections 1,[28] 2,[29] 3,[30]4(a),[31] 5,[32] 6,[33] 7,[34] 8,[35] 9,[36] 10,[37] 11,[38] 12,[39] and 13[40] of the PNRC Charter, as amended, are void.
Liban vs Gordon
The other provisions[41] of the PNRC Charter remain valid as they can be considered as a recognition by the State that the unincorporated PNRC is the local National Society of the International Red Cross and Red Crescent Movement, and thus entitled to the benefits, exemptions and privileges set forth in the PNRC Charter. The other provisions of the PNRC Charter implement the Philippine Governments treaty obligations under Article 4(5) of the Statutes of the International Red Cross and Red Crescent Movement, which provides that to be recognized as a National Society, the Society must be duly recognized by the legal government of its country on the basis of the Geneva Conventions and of the national legislation as a voluntary aid society, auxiliary to the public authorities in the humanitarian field.
In sum, we hold that the office of the PNRC Chairman is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. However, since the PNRC Charter is void insofar as it creates the PNRC as a private corporation, the PNRC should incorporate under the Corporation Code and register with the Securities and Exchange Commission if it wants to be a private corporation.
WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9,
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10, 11, 12, and 13 of the Charter of the Philippine National Red Cross, or Republic Act No. 95, as amended by Presidential Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a private corporation or grant it corporate powers.
SO ORDERED.
Trillanes vs Pimentel
EN BANC [G.R. No. 179817, June 27, 2008] ANTONIO F. TRILLANES IV, PETITIONER, VS. HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT- BRANCH 148, MAKATI CITY; GEN. HERMOGENES ESPERON, VICE ADM. ROGELIO I. CALUNSAG, MGEN. BENJAMIN DOLORFINO, AND LT. COL. LUCIARDO OBEA, RESPONDENTS. DECISION
CARPIO MORALES, J.: At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers led by junior officers of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premier Apartments in Makati City and publicly demanded the resignation of the President and key national officials. Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427 and General Order No. 4 declaring a state of rebellion and calling out the Armed Forces to suppress the rebellion.[1] A series of negotiations quelled the teeming tension and eventually resolved the impasse with the surrender of the militant soldiers that evening. In the aftermath of this eventful episode dubbed as the "Oakwood Incident," petitioner Antonio F. Trillanes IV was charged, along with his comrades, with coup d'etat defined under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC) of Makati. The case was docketed as Criminal Case No. 03-2784, "People v. Capt. Milo D. Maestrecampo, et al." Close to four years later, petitioner, who has remained in detention,[2] threw his hat in the political arena and won a seat in the Senate with a six-year term commencing at noon on June 30, 2007.[3] Before the commencement of his term or on June 22, 2007, petitioner filed with the RTC, Makati City, Branch 148, an "Omnibus Motion for Leave of Court to be Allowed to Attend Senate Sessions and Related Requests"[4] (Omnibus Motion). Among his requests were:
(a)
To be allowed to go to the Senate to attend all official functions of the Senate (whether at the Senate or elsewhere) particularly when the Senate is in session, and to attend the regular and plenary sessions of the Senate, committee hearings, committee meetings, consultations, investigations and hearings in aid of legislation, caucuses, staff meetings, etc., which are normally held at the Senate of the Philippines located at the GSIS Financial Center, Pasay City (usually from Mondays to Thursdays from 8:00 a.m. to 7:00 p.m.); To be allowed to set up a working area at his place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, with a personal desktop computer and the appropriate communications equipment (i.e., a telephone line and internet access) in order that he may be able to work there when there are no sessions, meetings or hearings at the Senate or when the Senate is not in session. The costs of setting up the said working area and the related equipment and utility costs can be charged against the budget/allocation of the Office of the accused from the Senate; To be allowed to receive members of his staff at the said working area at his place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, at reasonable times of the day particularly during working days for purposes of meetings, briefings, consultations and/or coordination, so that the latter may be able to assists (sic) him in the performance and discharge of his duties as a Senator of the Republic; To be allowed to give interviews and to air his comments, reactions and/or opinions to the press or the media regarding the important issues affecting the country and the public while at the Senate or elsewhere in the performance of his duties as Senator to help shape public policy and in the light of the important role of the Senate in maintaining the system of checks and balance between the three (3) co-equal branches of Government; With prior notice to the Honorable Court and to the accused and his custodians, to be allowed to receive, on Tuesdays and Fridays,reporters and other members of the media who may wish to interview him and/or to get his comments, reactions and/or opinion at his place of confinement at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, particularly when there are no sessions, meetings or hearings at the Senate or when the Senate is not in session; and
(b)
(c)
(d)
(e)
(f) To be allowed to attend the organizational meeting and election of officers of the Senate and related activities scheduled in the morning (9:00 or 10:00 a.m.) of 23 July 2007 at the Senate of the Philippines located at the GSIS Financial Center, Pasay City.[5]
By Order of July 25, 2007,[6] the trial court denied all the requests in the Omnibus Motion. Petitioner moved for reconsideration in which he waived his requests in paragraphs (b), (c) and (f) to thus trim them down to three.[7] The trial court just the same denied the motion by Order of September 18, 2007.[8] Hence, the present petition for certiorari to set aside the two Orders of the trial court, and for prohibition and mandamus to (i) enjoin respondents from banning the Senate staff, resource persons and guests from meeting with him or transacting business with him in his capacity as Senator; and (ii) direct respondents to allow him access to the Senate staff, resource persons and guests and permit him to attend all sessions and official functions of the Senate. Petitioner preliminarily prayed for the maintenance of the status quo ante of having been able hitherto to convene his staff, resource persons and guests[9] at the Marine Brig. Impleaded as co-respondents of Judge Oscar Pimentel, Sr. are AFP Chief of Staff, Gen. Hermogenes Esperon (Esperon); Philippine Navy's Flag Officer-in-Command, Vice Admiral Rogelio Calunsag; Philippine Marines' Commandant, Major Gen. Benjamin Dolorfino; and Marine Barracks Manila Commanding Officer, Lt. Col. Luciardo Obea (Obea). Petitioner later manifested, in his Reply of February 26, 2008, that he has, since November 30, 2007, been in the custody of the Philippine National Police (PNP) Custodial Center following the foiled take-over of the Manila Peninsula Hotel[10] the day before or on November 29, 2007. Such change in circumstances thus dictates the discontinuation of the action as against the above-named military officers-respondents. The issues raised in relation to them had ceased to present a justiciable controversy, so that a determination thereof would be without practical value and use. Meanwhile, against those not made parties to the case, petitioner cannot ask for reliefs from this Court.[11] Petitioner did not, by way of substitution, implead the police officers currently exercising custodial responsibility over him; and he did not satisfactorily show that they have adopted or continued the assailed actions of the former custodians.[12] Petitioner reiterates the following grounds which mirror those previously raised in his Motion for Reconsideration filed with the trial court: I. THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS CLEARLY INAPPLICABLE TO THE INSTANT CASE BECAUSE OF THE FOLLOWING REASONS: A. UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS CASE WAS ALREADY CONVICTED AT THE TIME HE FILED HIS MOTION. IN THE INSTANT CASE, ACCUSED/PETITIONER HAS NOT BEEN CONVICTED AND, THEREFORE, STILL ENJOYS THE PRESUMPTION OF INNOCENCE; B. THE ACCUSED IN THE JALOJOS (SIC) CASE WAS CHARGED WITH TWO (2) COUNTS OF STATUTORY RAPE AND SIX (6) COUNTS OF ACTS OF LASCIVIOUSNESS, CRIMES INVOLVING MORAL TURPITUDE. HEREIN ACCUSED/PETITIONER IS CHARGED WITH THE OFFENSE OF "COUP D'ETAT", A CHARGE WHICH IS COMMONLY REGARDED AS A POLITICAL OFFENSE; C.
THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO FLEE PRIOR TO BEING ARRESTED. THE ACCUSED/ PETITIONER VOLUNTARILY SURRENDERED TO THE AUTHORITIES AND AGREED TO TAKE RESPONSIBILITY FOR HIS ACTS AT OAKWOOD; II. GEN. ESPERON DID NOT OVERRULE THE RECOMMENDATION OF THE MARINE BRIG'S COMMANDING OFFICER TO ALLOW PETITIONER TO ATTEND THE SENATE SESSIONS; III. ACCUSED/PETITIONER SUBMITS THAT THE FACT THAT THE PEOPLE, IN THEIR SOVEREIGN CAPACITY, ELECTED HIM TO THE POSITION OF SENATOR OF THE REPUBLIC PROVIDES THE PROPER LEGAL JUSTIFICATION TO ALLOW HIM TO WORK AND SERVE HIS MANDATE AS A SENATOR; - AND IV. MOREOVER, THERE ARE ENOUGH PRECEDENTS TO ALLOW LIBERAL TREATMENT OF DETENTION PRISONERS WHO ARE HELD WITHOUT BAIL AS IN THE CASE OF FORMER PRESIDENT JOSEPH "ERAP" ESTRADA AND FORMER ARMM GOV. NUR MISUARI.[13] The petition is bereft of merit. In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly points out that former Rep. Romeo Jalosjos (Jalosjos) was already convicted, albeit his conviction was pending appeal, when he filed a motion similar to petitioner's Omnibus Motion, whereas he (petitioner) is a mere detention prisoner. He asserts that he continues to enjoy civil and political rights since the presumption of innocence is still in his favor. Further, petitioner illustrates that Jalosjos was charged with crimes involving moral turpitude, i.e., two counts of statutory rape and six counts of acts of lasciviousness, whereas he is indicted for coup d'etat which is regarded as a "political offense." Furthermore, petitioner justifies in his favor the presence of noble causes in expressing legitimate grievances against the rampant and institutionalized practice of graft and corruption in the AFP. In sum, petitioner's first ground posits that there is a world of difference between his case and that of Jalosjos respecting the type of offense involved, the stage of filing of the motion, and other circumstances which demonstrate the inapplicability ofJalosjos.[14] A plain reading of. Jalosjos suggests otherwise, however. The distinctions cited by petitioner were not elemental in the pronouncement inJalosjos that election to Congress is not a reasonable classification in criminal law enforcement as the functions and duties of the office are not substantial distinctions which lift one from the class of prisoners interrupted in their freedom and restricted in liberty of movement.[15] It cannot be gainsaid that a person charged with a crime is taken into custody for purposes of the administration of justice. No less than the Constitution provides: All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.[16] (Underscoring supplied) The Rules also state that no person charged with a capital offense,[17] or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal action.[18] That the cited provisions apply equally to rape and coup d'etat cases, both being punishable by reclusion perpetua,[19] is beyond cavil. Within the class of offenses covered by the stated range of imposable penalties, there is clearly no distinction as to the political complexion of or moral turpitude involved in the crime charged. In the present case, it is uncontroverted that petitioner's application for bail and for release on recognizance was denied.[20] The determination that the evidence of guilt is strong, whether ascertained in a hearing of an application for bail[21] or imported from a trial court's judgment of conviction,[22] justifies the detention of an accused as a valid curtailment of his right to provisional liberty. This accentuates the proviso that the denial of the right to bail in such cases is "regardless of the stage of the criminal action." Such justification for confinement with its underlying rationale of public self-defense[23] applies equally to detention prisoners like petitioner or convicted prisoners-appellants like Jalosjos. As the Court observed in Alejano v. Cabuay,[24] it is impractical to draw a line between convicted prisoners and pre-trial detainees for the purpose of maintaining jail security; and while pre-trial detainees do not forfeit their constitutional rights upon confinement, the fact of their detention makes their rights more limited than those of the public. The Court was more emphatic in People v. Hon. Maceda:[25] As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of the law. He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained in jail during the pendency of the case against him, unless he is authorized by the court to be released on bail or on recognizance. Let it be stressed that all prisoners whether under preventive detention or serving final sentence can not practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention.[26] (Underscoring supplied) These inherent limitations, however, must be taken into account only to the extent that confinement restrains the power of locomotion or actual physical movement. It bears noting that in Jalosjos, which was decided en banc one month after Maceda, the Court recognized that the accused could somehow accomplish legislative results.[27] The trial court thus correctly concluded that the presumption of innocence does not carry with it the full enjoyment of civil and political rights. Petitioner is similarly situated with Jalosjos with respect to the application of the presumption of innocence during the period material to the resolution of their respective motions. The Court in Jalosjos did not mention that the presumption of innocence no longer operates in favor of the accused pending the review on appeal of the judgment of conviction. The rule stands that until a promulgation of final conviction is made, the constitutional mandate of presumption of innocence prevails.[28] In addition to the inherent restraints, the Court notes that petitioner neither denied nor disputed his agreeing to a consensus with the prosecution that media access to him should cease after his proclamation by the Commission on Elections.[29] Petitioner goes on to allege that unlike Jalosjos who attempted to evade trial, he is not a flight risk since he voluntarily surrendered to the proper authorities and such can be proven by the numerous times he was allowed to travel outside his place of detention.
Subsequent events reveal the contrary, however. The assailed Orders augured well when on November 29, 2007 petitioner went past security detail for some reason and proceeded from the courtroom to a posh hotel to issue certain statements. The account, dubbed this time as the "Manila Pen Incident,"[30] proves that petitioner's argument bites the dust. The risk that he would escape ceased to be neither remote nor nil as, in fact, the cause for foreboding became real. Moreover, circumstances indicating probability of flight find relevance as a factor in ascertaining the reasonable amount of bail and in canceling a discretionary grant of bail.[31] In cases involving non-bailable offenses, what is controlling is the determination of whether the evidence of guilt is strong. Once it is established that it is so, bail shall be denied as it is neither a matter of right nor of discretion.[32] Petitioner cannot find solace in Montano v. Ocampo[33] to buttress his plea for leeway because unlike petitioner, the therein petitioner, then Senator Justiniano Montano, who was charged with multiple murder and multiple frustrated murder,[34] was able to rebut the strong evidence for the prosecution. Notatu dignum is this Court's pronouncement therein that "if denial of bail is authorized in capital cases, it is only on the theory that the proof being strong, the defendant would flee, if he has the opportunity, rather than face the verdict of the jury."[35] At the time Montano was indicted, when only capital offenses were nonbailable where evidence of guilt is strong,[36] the Court noted the obvious reason that "one who faces a probable death sentence has a particularly strong temptation to flee."[37] Petitioner's petition for bail having earlier been denied, he cannot rely on Montano to reiterate his requests which are akin to bailing him out. Second, petitioner posits that, contrary to the trial court's findings, Esperon did not overrule Obea's recommendation to allow him to attend Senate sessions. Petitioner cites the Comment[38] of Obea that he interposed no objection to such request but recommended that he be transported by the Senate Sergeant-at-Arms with adequate Senate security. And petitioner faults the trial court for deeming that Esperon, despite professing non-obstruction to the performance of petitioner's duties, flatly rejected all his requests, when what Esperon only disallowed was the setting up of a political office inside a military installation owing to AFP's apolitical nature.[39] The effective management of the detention facility has been recognized as a valid objective that may justify the imposition of conditions and restrictions of pre-trial detention.[40] The officer with custodial responsibility over a detainee may undertake such reasonable measures as may be necessary to secure the safety and prevent the escape of the detainee.[41] Nevertheless, while the comments of the detention officers provide guidance on security concerns, they are not binding on the trial court in the same manner that pleadings are not impositions upon a court. Third, petitioner posits that his election provides the legal justification to allow him to serve his mandate, after the people, in their sovereign capacity, elected him as Senator. He argues that denying his Omnibus Motion is tantamount to removing him from office, depriving the people of proper representation, denying the people's will, repudiating the people's choice, and overruling the mandate of the people. Petitioner's contention hinges on the doctrine in administrative law that "a public official can not be removed for administrative misconduct committed during a priorterm, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor."[42] The assertion is unavailing. The case against petitioner is not administrative in nature. And there is no "prior term" to speak of. In a plethora of cases,[43] the Court categorically held that the doctrine of condonation does not apply to criminal cases. Election, or more precisely, re-election to office, does not obliterate a criminal charge. Petitioner's electoral victory only signifies pertinently that when the voters elected him to the Senate, "they did so with full awareness of the limitations on his freedom of action [and] x x x with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison."[44]
In once more debunking the disenfranchisement argument,[45] it is opportune to wipe out the lingering misimpression that the call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the Constitution and echoed by jurisprudence. The apparent discord may be harmonized by the overarching tenet that the mandate of the people yields to the Constitution which the people themselves ordained to govern all under the rule of law. The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. x x x Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law.[46] (Underscoring supplied) Lastly, petitioner pleads for the same liberal treatment accorded certain detention prisoners who have also been charged with non-bailable offenses, like former President Joseph Estrada and former Governor Nur Misuari who were allowed to attend "social functions." Finding no rhyme and reason in the denial of the more serious request to perform the duties of a Senator, petitioner harps on an alleged violation of the equal protection clause. In arguing against maintaining double standards in the treatment of detention prisoners, petitioner expressly admits that he intentionally did not seek preferential treatment in the form of being placed under Senate custody or house arrest,[47] yet he at the same time, gripes about the granting of house arrest to others. Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders.[48] That this discretion was gravely abused, petitioner failed to establish. In fact, the trial court previously allowed petitioner to register as a voter in December 2006, file his certificate of candidacy in February 2007, cast his vote on May 14, 2007, be proclaimed as senator-elect, and take his oath of office[49] on June 29, 2007. In a seeming attempt to bind or twist the hands of the trial court lest it be accused of taking a complete turn-around,[50] petitioner largely banks on these prior grants to him and insists on unending concessions and blanket authorizations. Petitioner's position fails. On the generality and permanence of his requests alone, petitioner's case fails to compare with the species of allowable leaves. Jaloslossuccinctly expounds: x x x Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-appellant's status to that of a special class, it also would be a mockery of the purposes of the correction system.[51] WHEREFORE, the petition is DISMISSED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 169777* April 20, 2006
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS,Petitioners, vs. EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines,Respondents. x-------------------------x G.R. No. 169659 April 20, 2006
BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR, COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners, vs. EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, Respondent. x-------------------------x G.R. No. 169660 April 20, 2006
FRANCISCO I. CHAVEZ, Petitioner, vs. EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents. x-------------------------x G.R. No. 169667 April 20, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, vs. HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent. x-------------------------x

G.R. No. 169834 April 20, 2006
PDP- LABAN, Petitioner, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent. x-------------------------x G.R. No. 171246 April 20, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE PHILIPPINES, Petitioners, vs. HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent. DECISION CARPIO MORALES, J.: A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished."1 History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously. The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null and void for being unconstitutional. In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has come from a co-equal branch of government, which thus entitles it to a strong presumption of constitutionality. Once the challenged order is found to be indeed violative of the Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of the sovereign will of the Filipino people, must prevail over any issuance of the government that contravenes its mandates. In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP). On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear on September 29, 2005 as resource

speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project. The Senate Committee on National Defense and Security likewise issued invitations2 dated September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator Biazon Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines. Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its postponement "due to a pressing operational situation that demands [his utmost personal attention" while "some of the invited AFP officers are currently attending to other urgent operational matters." On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully request[ing] for the postponement of the hearing [regarding the NorthRail project] to which various officials of the Executive Department have been invited" in order to "afford said officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten the Senate Committee on its investigation." Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well as notices to all resource persons were completed [the previous] week." Senate President Drilon likewise received on September 28, 2005 a letter6 from the President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements relative to the project had been secured. On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The salient provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session. SECTION. 2. Nature, Scope and Coverage of Executive Privilege. (a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest. Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including: Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002); Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998). Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998); Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998); Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002). (b) Who are covered. The following are covered by this executive order: Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege; Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege; Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege;

Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and Such other officers as may be determined by the President. SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied) Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464, and another letter8 informing him "that officials of the Executive Department invited to appear at the meeting [regarding the NorthRail project] will not be able to attend the same without the consent of the President, pursuant to [E.O. 464]" and that "said officials have not secured the required consent from the President." On even date which was also the scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the Committee on National Defense and Security, informing him "that per instruction of [President Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear before any Senate or Congressional hearings without seeking a written approval from the President" and "that no approval has been granted by the President to any AFP officer to appear before the public hearing of the Senate Committee on National Defense and Security scheduled [on] 28 September 2005." Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation scheduled by the Committee on National Defense and Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending. For defying President Arroyos order barring military personnel from testifying before legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face court martial proceedings. As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following government officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise citing E.O. 464.11 On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O. 464. In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have standing to file the suit because of the transcendental importance of the issues they posed, pray, in their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent

Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them from fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws; Courage alleges that the tenure of its members in public office is predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights to information and to transparent governance are threatened by the imposition of E.O. 464. In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null and void for being unconstitutional. In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17 legal resource non-governmental organizations engaged in developmental lawyering and work with the poor and marginalized sectors in different parts of the country, and as an organization of citizens of the Philippines and a part of the general public, it has legal standing to institute the petition to enforce its constitutional right to information on matters of public concern, a right which was denied to the public by E.O. 464,13 prays, that said order be declared null and void for being unconstitutional and that respondent Executive Secretary Ermita be ordered to cease from implementing it. On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the same with its continued enforcement since it directly interferes with and impedes the valid exercise of the Senates powers and functions and conceals information of great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional. On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 because it hampers its legislative agenda to be implemented through its members in Congress, particularly in the conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a constitutional crisis between the executive and legislative branches of the government. Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and other military officers to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied, however, by letter15 dated February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance from the President to allow [them] to appear before the public hearing" and that "they will attend once [their] request is approved by the President." As none of those invited appeared, the hearing on February 10, 2006 was cancelled.16 In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005 but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary

Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,17 and those from the Department of Budget and Management18 having invoked E.O. 464. In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of Interior and Local Government Undersecretary Marius P. Corpus21 communicated their inability to attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive Secretary Ermita. On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization of all Philippine lawyers, all invoking their constitutional right to be informed on matters of public interest, filed their petition for certiorari and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void. All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing, enforcing, and observing E.O. 464. In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their respective memoranda. After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract.22 Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006, while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum. Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it would no longer file its memorandum in the interest of having the issues resolved soonest, prompting this Court to issue a Resolution reprimanding them.29 Petitioners submit that E.O. 464 violates the following constitutional provisions: Art. VI, Sec. 2130 Art. VI, Sec. 2231 Art. VI, Sec. 132

Art. XI, Sec. 133 Art. III, Sec. 734 Art. III, Sec. 435 Art. XIII, Sec. 16 36 Art. II, Sec. 2837 Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit. The Court synthesizes the issues to be resolved as follows: 1. Whether E.O. 464 contravenes the power of inquiry vested in Congress; 2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and 3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its publication in a newspaper of general circulation. Essential requisites for judicial review Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a valid exercise of the Courts power of judicial review are present is in order. Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.39 Except with respect to the requisites of standing and existence of an actual case or controversy where the disagreement between the parties lies, discussion of the rest of the requisites shall be omitted. Standing Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667 make it clear that they, adverting to the non-appearance of several officials of the executive department in the investigations called by the different committees of the Senate, were brought to vindicate the constitutional duty of the Senate or its different committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the House of Representatives which had been effectively impaired by E.O. 464, there being no mention of any investigation called by the House of Representatives or any of its committees which was aborted due to the implementation of E.O. 464.

As for Bayan Munas 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 Courts ruling in National Economic Protectionism Association v. Ongpin42 and Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a proper party, one must have a personal and substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of E.O. 464.44 That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in a democratic system, but more especially for sound legislation45 is not disputed. E.O. 464, however, allegedly stifles the ability of the members of Congress to access information that is crucial to law-making.46 Verily, the Senate, including its individual members, has a substantial and direct interest over the outcome of the controversy and is the proper party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative, powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators.47 In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the absence of any claim that an investigation called by the House of Representatives or any of its committees was aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws. The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in the House of Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process consonant with the declared policy underlying the party list system of affording citizens belonging to marginalized and underrepresented sectors, organizations and parties who lack well-defined political constituencies to contribute to the formulation and enactment of legislation that will benefit the nation.48 As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on the standing of their co-petitioners Courage and Codal is rendered unnecessary.49 In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer members,50 invoke their constitutional right to information on matters of public concern, asserting that the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of other constitutional rights51 and to the maintenance of the balance of power among the three branches of the government through the principle of checks and balances.52

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of Representatives,53 this Court held that when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest. As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental issues raised in its petition which this Court needs to resolve in order to avert a constitutional crisis. For it to be accorded standing on the ground of transcendental importance, however, it must establish (1) the character of the funds (that it is public) or other assets involved in the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government, and (3) the lack of any party with a more direct and specific interest in raising the questions being raised.54 The first and last determinants not being present as no public funds or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have direct and specific interests in the resolution of the controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at best is only a "generalized interest" which it shares with the rest of the political parties. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution.55 In fine, PDP-Labans alleged interest as a political party does not suffice to clothe it with legal standing. Actual Case or Controversy Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping controversy. Respondents counter that there is no case or controversy, there being no showing that President Arroyo has actually withheld her consent or prohibited the appearance of the invited officials.56 These officials, they claim, merely communicated to the Senate that they have not yet secured the consent of the President, not that the President prohibited their attendance.57 Specifically with regard to the AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the instruction not to attend without the Presidents consent was based on its role as Commander-inChief of the Armed Forces, not on E.O. 464. Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will abuse its power of preventing the appearance of officials before Congress, and that such apprehension is not sufficient for challenging the validity of E.O. 464. The Court finds respondents assertion that the President has not withheld her consent or prohibited the appearance of the officials concerned immaterial in determining the existence of an actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate withholding of consent or an express prohibition issuing from the President in order to bar officials from appearing before Congress. As the implementation of the challenged order has already resulted in the absence of officials invited to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further event before considering the present case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O. 464.

Constitutionality of E.O. 464 E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the information in the possession of these officials. To resolve the question of whether such withholding of information violates the Constitution, consideration of the general power of Congress to obtain information, otherwise known as the power of inquiry, is in order. The power of inquiry The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads: SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. (Underscoring supplied) This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests the power of inquiry in the unicameral legislature established therein the Batasang Pambansa and its committees. The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate. Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senates power to punish Arnault for contempt, this Court held: Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed.59 . . . (Emphasis and underscoring supplied) That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate.60 The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation. Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the guardian, the transaction, the Court held, "also involved government

agencies created by Congress and officers whose positions it is within the power of Congress to regulate or even abolish." Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive operations. As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof. As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of the Constitution. For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation. Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights. These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction. Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures prominently in the challenged order, it being mentioned in its provisions, its preambular clauses,62 and in its very title, a discussion of executive privilege is crucial for determining the constitutionality of E.O. 464. Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States. Schwartz defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public."65 Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying kinds.67 Tribe, in fact, comments that while it is customary to employ the phrase "executive privilege," it may be more accurate to speak of executive privileges "since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations." One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informers 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 Tribes comment is supported by the ruling in In re Sealed Case, thus: Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets. The courts have also granted the executive a right to withhold the identity of government informers in some circumstances and a qualified right to withhold information related to pending investigations. x x x"69 (Emphasis and underscoring supplied) The entry in Blacks 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 intragovernmental 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 Nixons 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 Presidents 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 Presidents powers. The Court, nonetheless, rejected the Presidents 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 Washingtons refusal to turn over treaty negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the Presidents privilege over his conversations against a congressional subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the subpoena. 76 In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.77Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege: "The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and underscoring supplied) Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve, as expressly stated in the decision, the right of the people to information.78 Nonetheless, the Court recognized that there are certain types of information which the government may withhold from the public, thus acknowledging, in substance if not in name, that executive privilege may be claimed against citizens demands for information. In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters."80 The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to information. Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does not extend to matters recognized as "privileged information under the separation of powers,"82 by which the Court meant Presidential conversations, correspondences, and discussions in closed-door

Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to information. From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. Validity of Section 1 Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the President prior to appearing before Congress. There are significant differences between the two provisions, however, which constrain this Court to discuss the validity of these provisions separately. Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not made to depend on the department heads possession of any information which might be covered by executive privilege. In fact, in marked contrast to Section 3 vis--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--vis Section 21 which provides for the power of either House of Congress to "conduct inquiries in aid of legislation." As the following excerpt of the deliberations of the Constitutional Commission shows, the framers were aware that these two provisions involved distinct functions of Congress. MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the House of Representatives or before the Senate. I have a particular problem in this regard, Madam President, because in our experience in the Regular Batasang Pambansa as the Gentleman himself has experienced in the interim Batasang Pambansa one of the most competent inputs that we can put in our committee deliberations, either in aid of legislation or in congressional

investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not come and it is a congressional investigation, we usually issue subpoenas. I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when requested under Section 22] does not mean that they need not come when they are invited or subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or congressional investigation. According to Commissioner Suarez, that is allowed and their presence can be had under Section 21. Does the gentleman confirm this, Madam President? MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of legislation, under which anybody for that matter, may be summoned and if he refuses, he can be held in contempt of the House.83 (Emphasis and underscoring supplied) A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to Commissioner Suarez bears noting, he being one of the proponents of the amendment to make the appearance of department heads discretionary in the question hour. So clearly was this distinction conveyed to the members of the Commission that the Committee on Style, precisely in recognition of this distinction, later moved the provision on question hour from its original position as Section 20 in the original draft down to Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the following exchange during the deliberations: MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding Officer, to the Article on Legislative and may I request the chairperson of the Legislative Department, Commissioner Davide, to give his reaction. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.
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MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that instead of putting it as Section 31, it should follow Legislative Inquiries. THE PRESIDING OFFICER. What does the committee say? MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer. MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I hope Commissioner Davide will consider this. MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a complement to or a supplement of the Legislative Inquiry. The appearance of the members of Cabinet would be very, very essential not only in the application of check and balance but also, in effect, in aid of legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner Davide. In other words, we are accepting that and so this Section 31 would now become Section 22. Would it be, Commissioner Davide? MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied) Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded from the same assumption that these provisions pertained to two different functions of the legislature. Both Commissioners understood that the power to conduct inquiries in aid of legislation is different from the power to conduct inquiries during the question hour. Commissioner Davides 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 Maambongs committee the Committee on Style shared the view that the two provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was speaking in his capacity as Chairman of the Committee on the Legislative Department. His views may thus be presumed as representing that of his Committee. In the context of a parliamentary system of government, the "question hour" has a definite meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the operation of the government,85 corresponding to what is known in Britain as the question period. There was a specific provision for a question hour in the 1973 Constitution86 which made the appearance of ministers mandatory. The same perfectly conformed to the parliamentary system established by that Constitution, where the ministers are also members of the legislature and are directly accountable to it. An essential feature of the parliamentary system of government is the immediate accountability of the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the National Assembly for the program of government and shall determine the guidelines of national policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be terminated before their term expired, the Prime Minister and the Cabinet remain in office only as long as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime Minister and the Cabinet may be changed.87 The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in the present Constitution so as to conform more fully to a system of separation of powers.88 To that extent, the question hour, as it is presently understood in this jurisdiction, departs from the question period of the parliamentary system. That department heads may not be required to appear in a question hour does not, however, mean that the legislature is rendered powerless to elicit information from them in all circumstances. In fact, in light of the absence of a mandatory question period, the need to enforce Congress right to executive information in the performance of its legislative function becomes more imperative. As Schwartz observes: Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the Congress has the right to obtain information from any source even from officials of departments and agencies in the executive branch. In the United States there is, unlike the situation which prevails in a parliamentary system such as that in Britain, a clear separation between the legislative and executive branches. It is this very separation that makes the congressional right to obtain information from the executive so essential, if the functions of the Congress as the elected representatives of the people are adequately to be carried out. The absence of close rapport

between the legislative and executive branches in this country, comparable to those which exist under a parliamentary system, and the nonexistence in the Congress of an institution such as the British question period have perforce made reliance by the Congress upon its right to obtain information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the Congress possesses the right to obtain executive information, its power of oversight of administration in a system such as ours becomes a power devoid of most of its practical content, since it depends for its effectiveness solely upon information parceled out ex gratia by the executive.89 (Emphasis and underscoring supplied) Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight function. When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for the same reasons stated in Arnault.90 In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission. Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on her being the highest official of the executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a longstanding custom. By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief Justice. Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464. Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed as limited in its

application to appearances of department heads in the question hour contemplated in the provision of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that issuances must be interpreted, as much as possible, in a way that will render it constitutional. The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of department heads in the question hour is discretionary on their part. Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary. Validity of Sections 2 and 3 Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are "covered by the executive privilege." The enumeration also includes such other officers as may be determined by the President. Given the title of Section 2 "Nature, Scope and Coverage of Executive Privilege" , it is evident that under the rule of ejusdem generis, the determination by the President under this provision is intended to be based on a similar finding of coverage under executive privilege. En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific categories of information and not to categories of persons. In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege, the reference to persons being "covered by the executive privilege" may be read as an abbreviated way of saying that the person is in possession of information which is, in the judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the challenged order. Upon a determination by the designated head of office or by the President that an official is "covered by the executive privilege," such official is subjected to the requirement that he first secure the consent of the President prior to appearing before Congress. This requirement effectively bars the appearance of the official concerned unless the same is permitted by the President. The proviso allowing the President to give its consent means nothing more than that the President may reverse a prohibition which already exists by virtue of E.O. 464. Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the President under E.O. 464, or by the President herself, that such official is in possession of information that is covered by executive privilege. This determination then becomes the basis for the officials not showing up in the legislative investigation. In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be construed as a declaration to Congress that the President, or a head of office authorized by the President, has determined that the requested information is privileged, and that

the President has not reversed such determination. Such declaration, however, even without mentioning the term "executive privilege," amounts to an implied claim that the information is being withheld by the executive branch, by authority of the President, on the basis of executive privilege. Verily, there is an implied claim of privilege. The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads: In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed that officials of the Executive Department invited to appear at the meeting will not be able to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have not secured the required consent from the President. (Underscoring supplied) The letter does not explicitly invoke executive privilege or that the matter on which these officials are being requested to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot attend the hearing. Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a determination has been made, by the designated head of office or the President, that the invited official possesses information that is covered by executive privilege. Thus, although it is not stated in the letter that such determination has been made, the same must be deemed implied. Respecting the statement that the invited officials have not secured the consent of the President, it only means that the President has not reversed the standing prohibition against their appearance before Congress. Inevitably, Executive Secretary Ermitas 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 internaldeliberations 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 coequal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case.91 (Emphasis and underscoring supplied)

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to determine whether it is valid. While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the privilege under the challenged order, Congress is left to speculate as to which among them is being referred to by the executive. The enumeration is not even intended to be comprehensive, but a mere statement of what is included in the phrase "confidential or classified information between the President and the public officers covered by this executive order." Certainly, Congress has the right to know why the executive considers the requested information privileged. It does not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged. That the message is couched in terms that, on first impression, do not seem like a claim of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the question of why the executive branch is not providing it with the information that it has requested. A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches: The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.92 (Underscoring supplied) Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected.93 These, in substance, were the same criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v. Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee on Presidential Campaign Activities v. Nixon.95 A.O. Smith v. Federal Trade Commission is enlightening: [T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible, thereby preventing the Court from balancing such harm against plaintiffs needs to determine whether to override any claims of privilege.96 (Underscoring supplied) And so is U.S. v. Article of Drug:97 On the present state of the record, this Court is not called upon to perform this balancing operation. In stating its objection to claimants 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 claimants 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 claimants products was a matter of internal policy formulation, an assumption in which this Court is unwilling to indulge sua sponte.98 (Emphasis and underscoring supplied) Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide precise and certain reasons for preserving the confidentiality of requested information." Black v. Sheraton Corp. of America100 amplifies, thus: A formal and proper claim of executive privilege requires a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has little more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant case because it is legally insufficient to allow the Court to make a just and reasonable determination as to its applicability. To recognize such a broad claim in which the Defendant has given no precise or compelling reasons to shield these documents from outside scrutiny, would make a farce of the whole procedure.101 (Emphasis and underscoring supplied) Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S:102 We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these questions. For it is as true here as it was there, that if (petitioner) had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that (he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the records. To deny the Committee the opportunity to consider the objection or remedy is in itself a contempt of its authority and an obstruction of its processes. His failure to make any such statement was "a patent evasion of the duty of one summoned to produce papers before a congressional committee[, and] cannot be condoned." (Emphasis and underscoring supplied; citations omitted) Upon the other hand, Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect.103 A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S.104 declares: The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, and to require him to answer if it clearly appears to the court that he is mistaken. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in

which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." x x x (Emphasis and underscoring supplied) The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress. In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated. No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege. Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of the United States where, so it claims, only the President can assert executive privilege to withhold information from Congress. Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the Presidents authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence. Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch,105 or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities.106 The doctrine of executive privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President," which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score. It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary with fair opportunity to

consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance. The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials appearing in inquiries in aid of legislation." That such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of persons appearing in or affected by such inquiries shall be respected." In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the need to ensure respect for such officials does not change the infirm nature of the authorization itself. Right to Information E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information. There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte: It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples 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 legislatures 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, Taada v. Tuvera states: The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect the public although it unquestionably does not apply directly to all the people. The subject of such law is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in courts of justice.108 (Emphasis and underscoring supplied) Although the above statement was made in reference to statutes, logic dictates that the challenged order must be covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before this Court. Due process thus requires that the people should have been apprised of this issuance before it was implemented. Conclusion Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected. The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible. For [w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy, based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of popular sovereignty. (Underscoring supplied)109 Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have given up something of much greater value our right as a people to take part in government. WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and 2(a) are, however, VALID. SO ORDERED.
Neri vs Senate Blue Ribbon Committee
Republic of the Philippines SUPREME COURT Manila EN BANC
ROMULO L. NERI, Petitioner,
-versusG. R. No. 180643 March 25, 2008

SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
DISSENTING OPINIONS: PUNO, C.J., CARPIO MORALES, J. SEPARATE OPINION: YNARES-SANTIAGO, J. DISSENTING AND CONCURRING OPINION: CARPIO, J. CONCURRING OPINIONS: CORONA, J., CHICO-NAZARIO, J. SEPARATE CONCURING OPINIONS: TINGA, J., VELASCO, JR., J., NACHURA, J., BRION, J.
At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show cause Letter[1] dated November 22, 2007 and contempt Order[2] dated January 30, 2008 concurrently issued by respondent Senate Committees on Accountability of Public Officers and Investigations, [3] Trade and Commerce,[4] and National Defense and Security [5] against petitioner Romulo L. Neri, former Director General of the National Economic and Development Authority (NEDA). The facts, as culled from the pleadings, are as follows: On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhing Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the Peoples Republic of China. In connection with this NBN Project, various Resolutions were introduced in the Senate, as follows: (1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE AND THE COMMITTEE ON TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION, THE CIRCUMSTANCES LEADING TO THE APPROVAL OF THE BROADBAND CONTRACT WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO THE COURTS OF LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER PERTINENT LEGISLATIONS. (2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled A RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE ZTE CONTRACT
(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO CONDUCT AN INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL SECURITY IMPLICATIONS OF AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO THE CHINESE FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY LIMITED (ZTE CORPORATION) WITH THE END IN VIEW OF PROVIDING REMEDIAL LEGISLATION THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND TERRITORIAL INTEGRITY. (4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION OF THE NATIONAL BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL GOVERNMENT. At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending bills in the Senate, to wit: 1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES; 2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and 3. Senate Bill No. 1317, introduced by Senator Miriam Defensor
Santiago, entitled AN ACT MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND EXECUTIVE AGREEMENTS. Respondent Committees initiated the investigation by sending invitations to certain personalities and cabinet officials involved in the NBN Project. Petitioner was among those invited. He was summoned to appear and testify on September 18, 20, and 26 and October 25, 2007. However, he attended only the September 26 hearing, claiming he was out of town during the other dates. In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the NBN Project by the NEDA. It appeared that the Project was initially approved as a Build-Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a government-to-government project, to be financed through a loan from the Chinese Government. On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking executive privilege. In particular, he refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project,[6] (b) whether or not she directed him to prioritize it,[7] and (c) whether or not she directed him to approve.[8] Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and testify on November 20, 2007. However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested respondent Committees
to dispense with petitioners testimony on the ground of executive privilege. The pertinent portion of the letter reads: With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear and testify again on 20 November 2007 before the Joint Committees you chair, it will be recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN project, including his conversation with the President thereon last 26 September 2007. Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006). Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit: a) Whether the President followed up the (NBN) project? b) Were you dictated to prioritize the ZTE? c) Whether the President said to go ahead and approve the project after being told about the alleged bribe? Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE/NBN project be dispensed with. On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should not be cited in contempt. The Letter reads: Since you have failed to appear in the said hearing, the Committees on Accountability of Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National Defense and Security require you to show cause why you should not be cited in contempt under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon). The Senate expects your explanation on or before 2 December 2007. On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive
privilege,
thus:
It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay during the hearing on 26 September 2007. During said hearing, I answered all the questions that were asked of me, save for those which I thought was covered by executive privilege, and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In good faith, after that exhaustive testimony, I thought that what remained were only the three questions, where the Executive Secretary claimed executive privilege. Hence, his request that my presence be dispensed with. Be that as it may, should there be new matters that were not yet taken up during the 26 September 2007 hearing, may I be furnished in advance as to what else I need to clarify, so that as a resource person, I may adequately prepare myself. In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2) his conversation with President Arroyo dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. The letter ended with a reiteration of petitioners request that he be furnished in advance as to what else he needs to clarify so that he may adequately prepare for the hearing. In the interim, on December 7, 2007, petitioner filed with this Court the present petition for certiorari assailing the show cause Letter dated November 22, 2007. Respondent Committees found petitioners explanations unsatisfactory. Without responding to his request for advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at
the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony. The said Order states: ORDER For failure to appear and testify in the Committees hearing on Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November 20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and obstructed the inquiry into the subject reported irregularities, AND for failure to explain satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007), herein attached) ROMULO L. NERI is hereby cited in contempt of this Committees and ordered arrested and detained in the Office of the Senate Sergeant-AtArms until such time that he will appear and give his testimony. The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a return hereof within twenty four (24) hours from its enforcement. SO ORDERED. On the same date, petitioner moved for the reconsideration of the above Order. [9] He insisted that he has not shown any contemptible conduct worthy of contempt and arrest. He emphasized his willingness to testify on new matters, however, respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for certiorari he filed on December 7, 2007 . According to him, this should restrain respondent Committees from enforcing the show cause Letter through the issuance of declaration of contempt and arrest. In view of respondent Committees issuance of the contempt Order, petitioner filed on February 1, 2008 a Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking to restrain the implementation of the said contempt Order.
On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent Committees from implementing their contempt Order, (b) requiring the parties to observe the status quo prevailing prior to the issuance of the assailed order, and (c) requiring respondent Committees to file their comment. Petitioner contends that respondent Committees show cause Letter and contempt Order were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses that his conversations with President Arroyo are candid discussions meant to explore options in making policy decisions. According to him, these discussions dwelt on the impact of the bribery scandal involving high government officials on the countrys diplomatic relations and economic and military affairs and the possible loss of confidence of foreign investors and lenders in the Philippines. He also emphasizes that his claim of executive privilege is upon the order of the President and within the parameters laid down in Senate v. Ermita[10] and United States v. Reynolds.[11] Lastly, he argues that he is precluded from disclosing communications made to him in official confidence under Section 7[12] of Republic Act No. 6713, otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, and Section 24[13] (e) of Rule 130 of the Rules of Court. Respondent Committees assert the contrary. They argue that (1) petitioners testimony is material and pertinent in the investigation conducted in aid of legislation; (2) there is no valid justification for petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioners arrest; and (4) petitioner has not come to court with clean hands. In the oral argument held last March 4, 2008, the following issues were ventilated: 1. What communications between the President and petitioner Neri are covered by the principle of executive privilege?
1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President, to cover (i) conversations of the President in the exercise of her executive and policy decision-making and (ii) information, which might impair our diplomatic as well as economic relations with the Peoples Republic of China? 1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with the President on the NBN contract on his assertions that the said conversations dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines x x x within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])? 1.c Will the claim of executive privilege in this case violate the following provisions of the Constitution: Sec. 28, Art. II (Full public disclosure of all transactions involving public interest) Sec. 7, Art. III (The right of the people to information on matters of public concern) Sec. 1, Art. XI (Public office is a public trust)
Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed) and the due process clause and the principle of separation of powers? 2. What is the proper procedure to be followed in invoking executive privilege? 3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for non-compliance with the subpoena?
After the oral argument, the parties were directed to manifest to the Court within twenty-four (24) hours if they are amenable to the Courts proposal of allowing petitioner to immediately resume his testimony before the Senate Committees to answer the other questions of the Senators without prejudice to the decision on the merits of this pending petition. It was understood that petitioner may invoke executive privilege in the course of the Senate Committees proceedings, and if the respondent Committees disagree thereto, the unanswered questions will be the subject of a supplemental pleading to be resolved along with the three (3) questions subject of the present petition.[14] At the same time, respondent Committees were directed to submit several pertinent documents.[15] The Senate did not agree with the proposal for the reasons stated in the Manifestation dated March 5, 2008. As to the required documents, the Senate and respondent Committees manifested that they would not be able to submit the latters Minutes of all meetings and the Minute Book because it has never been the historical and traditional legislative practice to keep them.[16] They instead submitted the Transcript of Stenographic Notes of respondent Committees joint public hearings. On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to Intervene and to Admit Attached Memorandum, founded on the following arguments: (1) The communications between petitioner and the President are covered by the principle of executive privilege. (2) Petitioner was not summoned by respondent Senate Committees in accordance with the law-making bodys power to conduct inquiries in aid of legislation as laid down in Section 21, Article VI of the Constitution and Senate v. Ermita. (3) Respondent Senate Committees gravely abused its discretion for alleged non-compliance with the Subpoena dated November 13, 2007.
The Court granted the OSGs motion the next day, March 18, 2007. As the foregoing facts unfold, related events transpired. On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive Order No. 464 and Memorandum Circular No. 108. She advised executive officials and employees to follow and abide by the Constitution, existing laws and jurisprudence, including, among others, the case of Senate v. Ermita[17] when they are invited to legislative inquiries in aid of legislation. At the core of this controversy are the two (2) crucial queries, to wit: First, are the communications elicited by the subject three (3) questions covered by executive privilege? And second, did respondent Committees commit grave abuse of discretion in issuing the contempt Order? We grant the petition. At the outset, a glimpse at the landmark case of Senate v. Ermita[18] becomes imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit: 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. SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or 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. Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation, its aim is to elicit information that may be used for legislation, while Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight function.[19] Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different. This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Courts pronouncement in Senate v. Ermita[20] is clear: 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. 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. (Emphasis supplied.) The availability of the power of judicial review to resolve the issues raised in this case has also been settled in Senate v. Ermita, when it held: 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 Courtscertiorari powers under Section 1, Article VIII of the Constitution. Hence, this decision. I The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege We start with the basic premises where the parties have conceded. The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that 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.[21] Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or
affected by such inquiries be respected. The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege.[22] This directs us to the consideration of the question -- is there a recognized claim of executive privilege despite the revocation of E.O. 464? A- There is a Recognized Claim of Executive Privilege Despite the Revocation of E.O. 464 At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings. Unlike the United States which has further accorded the concept with statutory status by enacting the Freedom of Information Act[23] and the Federal Advisory Committee Act,[24] the Philippines has retained its constitutional origination, occasionally interpreted only by this Court in various cases. The most recent of these is the case of Senate v. Ermita where this Court declared unconstitutional substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermitas Letter dated November 15, 2007 limit its bases for the claim of executive privilege to Senate v. Ermita, Almonte v. Vasquez,[25] and Chavez v. PEA.[26] There was never a mention of E.O. 464. While these cases, especially Senate v. Ermita,[27] have comprehensively discussed the concept of executive privilege, we deem it imperative to explore it once more in view of the clamor for this Court to clearly define the communications covered by executive privilege. The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege.[28] In United States v. Nixon,[29] the U.S. Court recognized a great public interest in preserving the confidentiality of conversations that take place in the Presidents performance of his official duties. It thus considered presidential communications as presumptively privileged. Apparently, the presumption is
founded on the Presidents generalized interest in confidentiality. The privilege is said to be necessary to guarantee the candor of presidential advisors and to provide the President and those who assist him with freedom 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. In In re: Sealed Case,[30] the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds of executive privilege; one is the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential. The latter includes advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Accordingly, they are characterized by marked distinctions. Presidential communications privilege applies to decision-making of the President while, the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of separation of power and the Presidents unique constitutional role; the second on common law privilege. Unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones[31] As a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege. Turning on who are the officials covered by the presidential communications privilege, In Re Sealed Case confines the privilege only to White House Staff that has operational proximity to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as quintessential and non-delegable Presidential
power, such as commander-in-chief power, appointment and removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties etc.[32] The situation in Judicial Watch, Inc. v. Department of Justice[33] tested the In Re Sealed Case principles. There, while the presidential decision involved is the exercise of the Presidents pardon power, a non-delegable, core-presidential function, the Deputy Attorney General and the Pardon Attorney were deemed to be too remote from the President and his senior White House advisors to be protected. The Court conceded that functionally those officials were performing a task directly related to the Presidents pardon power, but concluded that an organizational test was more appropriate for confining the potentially broad sweep that would result from the In Re Sealed Cases functional test. The majority concluded that, the lesser protections of the deliberative process privilege would suffice. That privilege was, however, found insufficient to justify the confidentiality of the 4,341 withheld documents. But more specific classifications of communications covered by executive privilege are made in older cases. Courts ruled early that the Executive has a right to withhold documents that might reveal military or state secrets[34] identity of government informers in some circumstances,[35] and information related to pending investigations.[36] An area where the privilege is highly revered is in foreign relations. In United States v. Curtiss-Wright Export Corp.[37] the U.S. Court, citing President George Washington, pronounced: The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one
cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent. Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG[38], this Court held that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security matters. In Chavez v. PEA,[39] there is also a recognition of the confidentiality of Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications privilege is fully discussed. As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief,[40] appointing,[41] pardoning,[42] and diplomatic[43] powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others. The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit: 1) The protected communication quintessential and non-delegable must relate to a presidential power.
2) The communication must be authored or solicited and received by a close advisor of the President or the President himself. The judicial test is that an advisor must be in operational proximity with the President.
3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought likely contains important evidence and by the unavailability of the information elsewhere by an appropriate investigating authority.[44] In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions fall under conversation and correspondence between the President and public officials necessary in her executive and policy decision-making process and, that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations. Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a quintessential and non-delegable power of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.[45] Second, the communications are received by a close advisor of the President. Under the operational proximity test, petitioner can be considered a close advisor, being a member of President Arroyos cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. The third element deserves a lengthy discussion. United States. v. Nixon held that a claim of executive privilege is subject to balancing against other interest. In other words, confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held:
[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The foregoing is consistent with the earlier case of Nixon vs. Sirica,[46] where it was held that presidential communications privilege are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government in the manner that preserves the essential functions of each Branch.[47] Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or citical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted. Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v. Nixon[48] that demonstrated, specific need for evidence in pending criminal trial outweighs the Presidents generalized interest in confidentiality. However, the present cases distinction with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to limit the scope of its decision. It stressed that it is not concerned here with the balance between the Presidents generalized interest in confidentiality x x x and
congressional demands for information. Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets. The respondent Committees should cautiously tread into the investigation of matters which may present a conflict of interest that may provide a ground to inhibit the Senators participating in the inquiry if later on an impeachment proceeding is initiated on the same subject matter of the present Senate inquiry. Pertinently, in Senate Select Committee on Presidential Campaign Activities v. Nixon,[49] it was held that since an impeachment proceeding had been initiated by a House Committee, the Senate Select Committees immediate oversight need for five presidential tapes, should give way to the House Judiciary Committee which has the constitutional authority to inquire into presidential impeachment. The Court expounded on this issue in this wise: It is true, of course, that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. The Congress learned this as to its own privileges in Gravel v. United States, as did the judicial branch, in a sense, in Clark v. United States, and the executive branch itself in Nixon v. Sirica. But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to
which the material was necessary to its fulfillment. Here also our task requires and our decision implies no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions. In its initial briefs here, the Committee argued that it has shown exactly this. It contended that resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it would aid in a determination whether legislative involvement in political campaigns is necessary and could help engender the public support needed for basic reforms in our electoral system. Moreover, Congress has, according to the Committee, power to oversee the operations of the executive branch, to investigate instances of possible corruption and malfeasance in office, and to expose the results of its investigations to public view. The Committee says that with respect to Watergate-related matters, this power has been delegated to it by the Senate, and that to exercise its power responsibly, it must have access to the subpoenaed tapes. We turn first to the latter contention. In the circumstances of this case, we need neither deny that the Congress may have, quite apart from its legislative responsibilities, a general oversight power, nor explore what the lawful reach of that power might be under the Committee's constituent resolution. Since passage of that resolution, the House Committee on the Judiciary has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source. x x x We have been shown no evidence indicating that Congress itself attaches any particular value to this interest. In these circumstances, we think the need for the tapes premised solely on an asserted power to investigate and inform cannot justify enforcement of the Committee's subpoena. The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials
are critical to the performance of its legislative functions. There is a clear difference between Congress's legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have been in the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events. (Emphasis supplied) Respondent Committees further contend that the grant of petitioners claim of executive privilege violates the constitutional provisions on right of the people to information on matters of public concern.[50] We might have agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer more questions from the Senators, with the exception only of those covered by his claim of executive privilege. The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of these laws are Section 7 of Republic Act (R.A.) No. 6713,[51] Article 229[52] of the Revised Penal Code, Section 3 (k)[53] of R.A. No. 3019, and Section 24(e)[54] of Rule 130 of the Rules of Court. These are in addition to what our body of jurisprudence classifies as confidential[55] and what our Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind. More than anything else, though, the right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the peoples right to public information. The former cannot claim that every legislative inquiry is an exercise of the people right to information. The distinction between such rights is laid down in Senate v. Ermita: There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of 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, not to individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge
their power, they do so as public officials and members of Congress. Be that as it may, the right to information must be balanced with and should give way in appropriate cases to constitutional precepts particularly those pertaining to delicate interplay of executive-legislative powers and privileges which is the subject of careful review by numerous decided cases. BThe Claim of Executive Privilege is Properly Invoked
We now proceed to the issue -- whether the claim is properly invoked by the President. Jurisprudence teaches that for the claim to be properly invoked, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter.[56] A formal and proper claim of executive privilege requires a precise and certain reason for preserving their confidentiality.[57] The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal claim of privilege. There he expressly states that this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Obviously, he is referring to the Office of the President. That is more than enough compliance. In Senate v. Ermita, a less categorical letter was even adjudged to be sufficient. With regard to the existence of precise and certain reason, we find the grounds relied upon by Executive Secretary Ermita specific enough so as not to leave respondent Committees in the dark on how the requested information could be classified as privileged. The case of Senate v. Ermita only requires that an allegation be made whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc. The particular ground must only be specified. The enumeration is not even intended to be comprehensive.[58] The following statement of grounds satisfies the requirement:
The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. At any rate, as held further in Senate v. Ermita, [59] the Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal department. II Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order Grave abuse of discretion means such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[60] It must be reiterated that when respondent Committees issued the show cause Letter dated November 22, 2007, petitioner replied immediately, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were the three (3) questions he claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautistas letter, stating that his non-appearance was upon the order of the President and specifying the reasons why his conversations with President Arroyo are covered by executive privilege. Both correspondences include an expression of his willingness to testify again, provided he be furnished in advance copies of the questions. Without responding to his request for advance list of questions, respondent Committees
issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony. Thereupon, petitioner filed a motion for reconsideration, informing respondent Committees that he had filed the present petition for certiorari. Respondent Committees committed grave abuse of discretion in issuing the contempt Order in view of five (5) reasons. First, there being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity. Second, respondent Committees did not comply with the requirement laid down in Senate vs. Ermita that the invitations should contain the possible needed statute which prompted the need for the inquiry, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof. Compliance with this requirement is imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both persons appearing in or affected by such inquiry are respected as mandated by said Section 21 and by virtue of the express language of Section 22. Unfortunately, despite petitioners repeated demands, respondent Committees did not send him advance list of questions. Third, a reading of the transcript of respondent Committees January 30, 2008 proceeding reveals that only a minority of the members of the Senate Blue Ribbon Committee were present during the deliberation. [61] Section 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation provides that: The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members. Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members who did not actually
participate in the deliberation were made to sign the contempt Order. Thus, there is a cloud of doubt as to the validity of the contempt Order dated January 30, 2008. We quote the pertinent portion of the transcript, thus: THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either a caucus or will ask the Committee on Rules if there is a problem. Meaning, if we do not have the sufficient numbers. But if we have a sufficient number, we will just hold a caucus to be able to implement that right away becauseAgain, our Rules provide that any one held in contempt and ordered arrested, need the concurrence of a majority of all members of the said committee and we have three committees conducting this. So SEN. thank you very much to Mr. the members Chairman.
PIMENTEL.
THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give him the floor, Senator Pimentel. SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other committees. But I am of the opinion that the Blue Ribbon Committee is the lead committee, and therefore, it should have preference in enforcing its own decisions. Meaning to say, it is not something that is subject to consultation with other committees. I am not sure that is the right interpretation. I think that once we decide here, we enforce what we decide, because otherwise, before we know it, our determination is watered down by delay and, you know, the so-called consultation that inevitably will have to take place if we follow the premise that has been explained. So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget its the lead committee here, and therefore, the will of the lead committee prevails over all the other, you, know reservations that other committees might have who are only secondary or even tertiary committees, Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I agree with the wisdom of his statements. I was merely mentioning that under Section 6 of the Rules of the Committee and under Section 6, The Committee by a vote of a majority of all its members may punish for contempt any witness before it who disobeys any order of the Committee. So the Blue Ribbon Committee is more than willing to take that responsibility. But we only have six members here today, I am the seventh as chair and so we have not met that number. So I am merely stating that, sir, that when we will prepare the documentation, if a majority of all members sign and I am following the Sabio v. Gordon rule wherein I do believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either in caucus or in session asked the other members to sign. And once the signatures are obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be able to legally question our subpoena as being insufficient in accordance with law. SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very well-taken. But Id like to advert to the fact that the quorum of the committee is only two as far as I remember. Any two-member senators attending a Senate committee hearing provide that quorum, and therefore there is more than a quorum demanded by our Rules as far as we are concerned now, and acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any event, the signatures that will follow by the additional members will only tend to strengthen the determination of this Committee to put its foot forward put down on what is happening in this country, Mr. Chairman, because it really looks terrible if the primary Committee of the Senate, which is the Blue ribbon Committee, cannot even sanction people who openly defy, you know, the summons of this Committee. I know that the Chair is going through an agonizing moment here. I know that. But nonetheless, I think we have to uphold, you know, the institution that we are representing because the alternative will be a disaster for all of us, Mr. Chairman. So having said that, Id like to reiterate my point.
THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions of the Minority Leader. But let me very respectfully disagree with the legal requirements. Because, yes, we can have a hearing if we are only two but both under section 18 of the Rules of the Senate and under Section 6 of the Rules of the Blue Ribbon Committee, there is a need for a majority of all members if it is a case of contempt and arrest. So, I am simply trying to avoid the court rebuking the Committee, which will instead of strengthening will weaken us. But I do agree, Mr. Minority Leader, that we should push for this and show the executive branch that the well-decided the issue has been decided upon the Sabio versus Gordon case. And its very clear that we are all allowed to call witnesses. And if they refure or they disobey not only can we cite them in contempt and have them arrested. x x x [62] Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the duly published rules of procedure. We quote the OSGs explanation: The phrase duly published rules of procedure requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senates membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem, fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm. And Fifth, respondent Committees issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as unsatisfactory and simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention.
A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times his readiness to testify before respondent Committees. He refused to answer the three (3) questions because he was ordered by the President to claim executive privilege. It behooves respondent Committees to first rule on the claim of executive privilege and inform petitioner of their finding thereon, instead of peremptorily dismissing his explanation as unsatisfactory. Undoubtedly, respondent Committees actions constitute grave abuse of discretion for being arbitrary and for denying petitioner due process of law. The samequality afflicted their conduct when they (a) disregarded petitioners motion for reconsideration alleging that he had filed the present petition before this Court and (b) ignored petitioners repeated request for advance list of questions, if there be any aside from the three (3) questions as to which he claimed to be covered by executive privilege. Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly with utmost self-restraint with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or vindication.[63] Respondent Committees should have exercised the same restraint, after all petitioner is not even an ordinary witness. He holds a high position in a co-equal branch of government. In this regard, it is important to mention that many incidents of judicial review could have been avoided if powers are discharged with circumspection and deference. Concomitant with the doctrine of separation of powers is the mandate to observe respect to a co-equal branch of the government. One last word. The Court was accused of attempting to abandon its constitutional duty when it required the parties to consider a proposal that would lead to a possible compromise. The accusation is far from truth. The Court did so, only, to test a tool that other jurisdictions find to be effective in settling similar
cases, to avoid a piecemeal consideration of the questions for review, and to avert a constitutional crisis between the executive and legislative branches of government. In United States v. American Tel. & Tel Co.,[64] the court refrained from deciding the case because of its desire to avoid a resolution that might disturb the balance of power between the two branches and inaccurately reflect their true needs. Instead, it remanded the record to the District Court for further proceedings during which the parties are required to negotiate a settlement. In the subsequent case United States v. American Tel. &Tel Co.,[65] it was held that much of this spirit of compromise is reflected in the generality of language found in the Constitution. It proceeded to state: Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. It thereafter concluded that: The Separation of Powers often impairs efficiency, in terms of dispatch and the immediate functioning of government. It is the long-term staying power of government that is enhanced by the mutual accommodation required by the separation of powers. In rendering this decision, the Court emphasizes once more that the basic principles of constitutional law cannot be subordinated to the needs of a particular situation. As magistrates, our mandate is to rule objectively and dispassionately, always mindful of Mr. Justice Holmes warning on the dangers inherent in cases of this nature, thus: some accident of immediate and overwhelming interestappeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what
previously was clear seem doubtful, and before which even well settled principles of law will bend.[66] In this present crusade to search for truth, we should turn to the fundamental constitutional principles which underlie our tripartite system of government, where the Legislature enacts the law, the Judiciary interprets it and the Executive implements it. They are considered separate, co-equal, coordinate and supreme within their respective spheres but, imbued with a system of checks and balances to prevent unwarranted exercise of power. The Courts mandate is to preserve these constitutional principles at all times to keep the political branches of government within constitutional bounds in the exercise of their respective powers and prerogatives, even if it be in the search for truth. This is the only way we can preserve the stability of our democratic institutions and uphold the Rule of Law. WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008, citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention, is hereby nullified. SO ORDERED.
DISSENTING AND CONCURRING OPINION

CARPIO, J.: The Case This Petition,[1] with supplemental petition,[2] for certiorari with application for a temporary restraining order, assails the letter dated 22 November 2007 and the Order dated 30 January 2008 issued by respondents Senate Committees on Accountability of Public Officers and Investigation (Blue Ribbon),[3] Trade and Commerce,[4] and National Defense and Security[5] (collectively respondents or Committees). The 22 November 2007 letter required petitioner Commission on Higher Education Chairman and former National Economic Development Authority (NEDA) Director General Romulo L. Neri (petitioner) to show cause why [he] should not be cited in contempt for his failure to attend the Blue Ribbon Committee hearing on 20 November 2007, while the Order issued on 30 January 2008 cited petitioner in contempt and directed his arrest and detention in the Office of the Senate Sergeant-AtArms. The Antecedent Facts On 21 April 2007, with President Gloria Macapagal-Arroyo as witness, the Department of Transportation and Communications, represented by Secretary Leandro R. Mendoza, and Zhong Xing Telecommunications Equipment Company Limited (ZTE), represented by its Vice President Yu Yong, signed in Boao, China, a Contract for the Supply of Equipment and Services for the National Broadband Network Project (NBN Project) worth US$329,481,290. The People's Republic of China, through its Export and Import Bank, agreed to extend a loan to the Philippines to finance the NBN Project.[6] The NBN Project was supposed to provide landline, cellular and Internet services in all government offices nationwide. After the signing of the agreement, controversies hounded the NBN Project. There were various reports of alleged bribery, overpricing of US$130 million, payment of advances or kickback commissions involving high-ranking government officials, and other anomalies which included the loss of the contract, collusion among executive officials, and political pressures against the participants in the NBN Project.[7] Considering the serious questions surrounding the NBN Project,
respondents called an investigation, in aid of legislation, on the NBN Project based on resolutions introduced by Senators Aquilino Q. Pimentel, Sr., Panfilo M. Lacson, Miriam Defensor Santiago, and Mar Roxas. Several hearings were conducted, one of which was held on 26 September 2007 where petitioner testified before respondents. During this particular hearing, petitioner testified that then Commission on Elections Chairman Benjamin Abalos, Sr. (Abalos), the alleged broker in the NBN Project, offered petitioner P200 million in exchange for NEDA's approval of the NBN Project. Petitioner further testified that he told President Arroyo of the bribe attempt by Abalos and that the President instructed him not to accept the bribe offer. However, when respondents asked petitioner what he and President Arroyo discussed thereafter, petitioner refused to answer, invoking executive privilege. Petitioner claimed executive privilege when he was asked the following questions:
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I. SEN. PANGILINAN: You mentioned earlier that you mentioned this to the President. Did the President after that discussion over the phone, was this ever raised again, the issue of the 200 ka rito? MR. NERI: We did not discuss it again, Your Honor.
SEN. PANGILINAN: With the President? But the issue, of course, the NBN deal, was raised again? After that, between you and the President. Pinalow up (followed up) ba niya? MR. NERI: May I claim the executive privilege, Your Honor, because I think this already involves conversations between me and the President, Your Honor, because this is already confidential in nature. xxx II. SEN. LEGARDA: Has there been any government official higher than you who dictated that the ZTE project be prioritized or given priority? In short, were you dictated upon not to encourage AHI as youve previously done... MR. NERI: As I said, Your Honor...
SEN. LEGARDA:
...but to prefer or prioritize the ZTE?
MR. NERI: Yeah. As the question may involve as I said a conversation/correspondence between the President and a public official, Your Honor. SEN. LEGARDA: MR. NERI: Im sorry. Can you say that again?
As I said, I would like to invoke Sec. 2(a) of EO 464. xxx III.
MR. NERI:
She said, Dont accept it, Your Honor.
SEN. CAYETANO, (P): And there was something attached to that like... But pursued with a project or go ahead and approve, something like that? MR. NERI: As I said, I claim the right of executive privilege no further discussions on the... SEN. CAYETANO, (P): Ah, so thats the part where you invoke your executive privilege, is that the same thing or is this new, this invocation of executive privilege? My question is, after you had mentioned the 200 million and she said Dont accept, was there any other statement from her as to what to do with the project? MR. NERI: so... As I said, it was part of a longer conversation, Your Honor,
SEN. CAYETANO, (P). A longer conversation in that same-- part of that conversation on an ongoing day-to-day, week-to-week conversation? MR. NERI: matters. She calls me regularly, Your Honor, to discuss various
SEN. CAYETANO, (P): But in connection with, Maam, na-offer-an ako ng 200. -- Ah, dont accept, next topic, ganoon ba yon? Or was there like, Alam mo, magandang project sana yan, eh bakit naman ganyan. MR. NERI: As I said, Your Honor, beyond that I would not want to go any further, Your Honor.
SEN. CAYETANO, (P): I just cant hear you. MR. NERI: Beyond what I said, Your Honor, Id like to invoke the right of executive privilege. On 13 November 2007, the Blue Ribbon Committee issued a subpoena ad testificandum[8] requiring petitioner to appear again before it and testify further on 20 November 2007. On 15 November 2007, Executive Secretary Eduardo Ermita (Executive Secretary Ermita) addressed a letter (Ermita Letter) to respondent Blue Ribbon Committee Chair Alan Peter S. Cayetano requesting that petitioners testimony on 20 November 2007 be dispensed with because he was invoking executive privilege By Order of the President. Executive Secretary Ermita explained: Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit: a) Whether the President followed up the (NBN) project? b) Were you dictated to prioritize the ZTE? c) Whether the President said to go ahead and approve the project after being told about the alleged bribe? Following the ruling in Senate vs. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v Vazquez, G.R. 95367, 23 May 1995; Chavez v PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, is she is not protected by the confidentiality of her conversations. The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given the confidential nature in which these information were conveyed to the
President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as defined in Senate vs. Ermita, and has advised Secretary Neri accordingly.[9] Consequently, petitioner did not appear before respondents on 20 November 2007. Petitioner assumed that the only matters on which respondents would question him were exclusively related to his further discussions with the President relating to the NBN Project. On 22 November 2007, respondents issued the letter requiring petitioner to show cause why he should not be cited in contempt for his failure to appear at the 20 November 2007 hearing.[10] In a letter dated 29 November 2007, petitioner personally replied to respondents, requesting to be furnished in advance new matters, if any, which respondents would like to ask him other than the three questions for which Executive Secretary Ermita had already claimed executive privilege.[11] On 7 December 2007, petitioner filed the initial Petition for certiorari with a prayer for the issuance of a temporary restraining order to enjoin respondents from citing him in contempt. On 30 January 2008, respondents issued an order for the arrest of petitioner for his failure to appear at the hearings of the Senate Committees on 18 September 2007, 20 September 2007, 25 October 2007, and 20 November 2007.[12] On the same day, petitioner wrote respondents and Senate President Manny Villar seeking a reconsideration of the issuance of the arrest order. On 1 February 2008, petitioner filed with this Court a supplemental petition for certiorari with an urgent application for a temporary restraining order or preliminary injunction seeking to nullify the arrest order and to enjoin respondents from implementing such order. On 5 February 2008, the Court issued a resolution requiring respondents to Comment on the Petition and supplemental petition and to observe the status quo prevailing prior to respondents' Order of 30 January 2008. The Court further resolved to set the Petition for hearing on the merits and on the Status Quo Ante Order on 4 March 2008. The Court heard the parties in oral arguments on 4 March 2008, on the following issues:
1. What communications between the President and petitioner Neri are covered by the principle of executive privilege? 1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President, to cover (i) conversations of the President in the exercise of her executive and policy decision-making and (ii) information, which might impair our diplomatic as well as economic relations with the Peoples Republic of China? 1.b Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with the President on the NBN contract on his assertions that the said conversations dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines xxx, within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])? 1.c Will the claim of executive privilege in this case violate the following provisions of the Constitution: Sec. 28, Art II interest) (Full public disclosure of all transactions involving public
Sec. 7, Art. III (The right of the people to information on matters of public concern) Sec. 1, Art. XI (Public office is a public trust)
Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed) and the due process clause and the principle of separation of powers? 2. What is the proper procedure to be followed in invoking executive privilege? 3. Did the Senate Committees grave[ly] abuse their discretion in ordering the arrest of petitioner for non-compliance with the subpoena? After the oral arguments, the Office of the Solicitor General (OSG) filed on 17 March 2008 a Motion for Leave to Intervene and to Admit Attached Memorandum. The OSG argues that petitioners discussions with the President are covered by executive privilege. The OSG assails the validity of the Senates Rules of Procedure Governing Inquiries in Aid of Legislation on the ground of lack of publication. On 18 March 2008, the Court granted the OSGs motion to intervene.
In his Petition, petitioner alleges that the invocation of executive privilege is well founded. Petitioner claims that his candid discussions with the President were meant to explore options in crafting policy decisions. Petitioner further argues that the invocation of executive privilege was timely, upon authority of the President, and within the parameters laid down in Senate v. Ermita and United States v. Reynolds. Petitioner also maintains that his non-appearance at the 20 November 2007 hearing was due to the order of the President herself, invoking executive privilege. Therefore, petitioner asserts that the show cause order was issued with grave abuse of discretion, hence void. In his supplemental petition, petitioner argues, among others, that the issuance of the arrest order was another grave abuse of discretion because he did not commit any contumacious act. Petitioner contends that Executive Secretary Ermita correctly invoked executive privilege in response to the subpoena issued by respondents for petitioner to testify at the 20 November 2007 hearing. Petitioner also impugns the validity of the Senates Rules of Procedure Governing Inquiries in Aid of Legislation for lack of publication for the 14th Congress. Petitioner also alleges that respondents' order of arrest preempted this Court's action on his initial Petition. Petitioner claims that this order of arrest elides, and side-steps, the President's invocation of executive privilege in behalf of petitioner. In their Comment, respondents counter that there is no justification for petitioner's invocation of executive privilege. Respondents assert that petitioner's sweeping claim of executive privilege does not authorize his absolute refusal to appear and testify before them. Respondents argue that petitioner failed to overcome the presumption against executive secrecy and in favor of disclosure, as required in Senate v. Ermita.[13] Respondents also claim that petitioner's justification violates the constitutional and statutory standards for public officers. Respondents further maintain that the grounds invoked by petitioner are mere speculations and presumptions. Likewise, respondents insist that the testimony of petitioner is material and pertinent in aid of legislation. Respondents point out that several bills relating to the inquiry have already been filed in aid of legislation. Respondents also stress that even assuming that petitioner timely invoked executive privilege, this privilege does not extend to criminal activities. The Issues
The issues raised in this petition may be summarized as follows:

1. Whether Executive Secretary Ermita correctly invoked executive privilege on the three questions mentioned in his 15 November 2007 letter to the Senate Blue Ribbon Committee; 2. Whether the Senates Rules of Procedure Governing Inquiries in Aid of Legislation were duly published; and 3. Whether the Senates Order of 30 January 2008 citing petitioner in contempt and directing his arrest is valid. Discussion 1. Overview of Executive Privilege
Executive privilege is the implied constitutional power of the President to withhold information requested by other branches of the government. The Constitution does not expressly grant this power to the President but courts have long recognized implied Presidential powers if necessary and proper[14] in carrying out powers and functions expressly granted to the Executive under the Constitution. In the United States, executive privilege was first recognized as an implied constitutional power of the President in the 1973 case of United States v. Nixon.[15] U.S. Presidents, however, have asserted executive privilege since the time of the first President, George Washington.[16] In this jurisdiction, several decisions have recognized executive privilege starting with the 1995 case of Almonte v. Vasquez,[17] and the most recent being the 2002 case of Chavez v. Public Estates Authority[18] and the 2006 case of Senate v. Ermita.[19] As Commander-in-Chief of the Armed Forces[20] and as Chief Executive,[21] the President is ultimately responsible for military and national security matters affecting the nation. In the discharge of this responsibility, the President may find it necessary to withhold sensitive military and national security secrets from the Legislature or the public. As the official in control of the nations foreign service by virtue of the Presidents control of all executive departments, bureaus and offices,[22] the President is the chief implementer of the foreign policy relations of the State. The Presidents role as chief implementer of the States foreign policy is reinforced by the Presidents constitutional power to negotiate and enter into treaties and international agreements.[23] In the discharge
of this responsibility, the President may find it necessary to refuse disclosure of sensitive diplomatic secrets to the Legislature or the public. Traditionally, states have conducted diplomacy with considerable secrecy. There is every expectation that a state will not imprudently reveal secrets that its allies have shared with it. There is also the need to protect the confidentiality of the internal deliberations of the President with his Cabinet and advisers. To encourage candid discussions and thorough exchange of views, the Presidents communications with his Cabinet and advisers need to be shielded from the glare of publicity. Otherwise, the Cabinet and other presidential advisers may be reluctant to discuss freely with the President policy issues and executive matters knowing that their discussions will be publicly disclosed, thus depriving the President of candid advice. Executive privilege, however, is not absolute. The interest of protecting military, national security and diplomatic secrets, as well as Presidential communications, must be weighed against other constitutionally recognized interests. There is the declared state policy of full public disclosure of all transactions involving public interest,[24] the right of the people to information on matters of public concern,[25] the accountability of public officers,[26] the power of legislative inquiry,[27] and the judicial power to secure testimonial and documentary evidence in deciding cases.[28] The balancing of interests between executive privilege on one hand and the other competing constitutionally recognized interests on the other hand - is a function of the courts. The courts will have to decide the issue based on the factual circumstances of each case. This is how conflicts on executive privilege between the Executive and the Legislature,[29] and between the Executive and the Judiciary,[30] have been decided by the courts. The Judiciary, however, will consider executive privilege only if the issues cannot be resolved on some other legal grounds.[31] In conflicts between the Executive and the Legislature involving executive privilege, the Judiciary encourages negotiation between the Executive and Legislature as the preferred route of conflict resolution.[32] Only if judicial resolution is unavoidable will courts resolve such disputes between the Executive and Legislature.[33] Information covered by executive privilege remains confidential even after the expiry of the terms of office of the President, Cabinet members and presidential advisers. Thus, a former President can assert executive privilege.[34] The character of executive privilege attaches to the information and not to the person. Executive privilege is for the benefit
of the State and not for the benefit of the office holder. Even death does not extinguish the confidentiality of information covered by executive privilege. Executive privilege must be exercised by the President in pursuance of official powers and functions. Executive privilege cannot be invoked to hide a crime because the President is neither empowered nor tasked to conceal a crime.[35] On the contrary, the President has the constitutional duty to enforce criminal laws and cause the prosecution of crimes.[36] Executive privilege cannot also be used to hide private matters, like private financial transactions of the President. Private matters are those not undertaken pursuant to the lawful powers and official functions of the Executive. However, like all citizens, the President has a constitutional right to privacy.[37] In conducting inquiries, the Legislature must respect the right to privacy of citizens, including the Presidents. Executive privilege is rooted in the separation of powers.[38] Executive privilege is an implied constitutional power because it is necessary and proper to carry out the express constitutional powers and functions of the Executive free from the encroachment of the other co-equal and coordinate branches of government. Executive privilege springs from the supremacy of each branch within its own assigned area of constitutional powers and functions.[39] Executive privilege can be invoked only by the President who is the sole Executive in whom is vested all executive power under the Constitution.[40] However, the Executive Secretary can invoke executive privilege By Order of the President, which means the President personally instructed the Executive Secretary to invoke executive privilege in a particular circumstance.[41] Executive privilege must be invoked with specificity sufficient to inform the Legislature and the Judiciary that the matter claimed as privileged refers to military, national security or diplomatic secrets, or to confidential Presidential communications.[42] A claim of executive privilege accompanied by sufficient specificity gives rise to a presumptive executive privilege. A generalized assertion of executive privilege, without external evidence or circumstances indicating that the matter refers to any of the recognized categories of executive privilege, will not give rise to presumptive executive privilege. If there is doubt whether presumptive privilege exists, the court may require in camera inspection of so much of the evidence as may be necessary to determine whether the claim of executive privilege is
justified.[43] Once presumptive executive privilege is established, the court will then weigh the need for such executive privilege against the need for other constitutionally recognized interests. Executive privilege must be invoked after the question is asked by the legislative committee, not before. A witness cannot raise hypothetical questions that the committee may ask, claim executive privilege on such questions, and on that basis refuse to appear before the legislative committee. If the legislative committee furnished in advance the questions to the witness, the witness must bring with him the letter of the President or Executive Secretary invoking executive privilege and stating the reasons for such claim. If the legislative committee did not furnish in advance the questions, the witness must first appear before the legislative committee, wait for the question to be asked, and then raise executive privilege. The legislative committee must then give the witness sufficient time to consult the President or Executive Secretary whether the President will claim executive privilege. At the next hearing, the witness can bring with him the letter of the President or Executive Secretary, and if he fails to bring such letter, the witness must answer the question. There are other categories of government information which are considered confidential but are not strictly of the same status as those falling under the Presidents executive privilege. An example of such confidential information is the identity of an informer which is made confidential by contract between the government and the informer.[44] The privilege character of the information is contractual in nature. There are also laws that classify the identity of an informer as confidential.[45] The privilege character of the information is conferred by the Legislature and not by the Executives implied power of executive privilege under the Constitution. There is also the category of government information that is confidential while the deliberative process of agency executives is on-going, but becomes public information once an agency decision or action is taken. Thus, a committee that evaluates bids of government contracts has a right to keep its deliberations and written communications confidential. The purpose of the deliberative process privilege is to give agency executives freedom to discuss competing bids in private without outside pressure. However, once they take a definite action, like deciding the best bid, their deliberations and written communications form part of government records accessible by the public.[46] Confidential information under the deliberative process privilege is different from the Presidents executive privilege. Military, national
security, and diplomatic secrets, as well as Presidential communications, remain confidential without time limit. The confidentiality of matters falling under the Presidents executive privilege remains as long as the need to keep them confidential outweighs the need for public disclosure. Then there is the category of government information that must be kept temporarily confidential because to disclose them immediately would frustrate the enforcement of laws. In an entrapment operation of drug pushers, the identity of the undercover police agents, informers and drug suspects may not be disclosed publicly until after the operation is concluded. However, during the trial, the identity of the undercover police agents and informers must be disclosed if their testimony is introduced in evidence. 2. Overview of Legislative Power of Inquiry
The Legislatures fundamental function is to enact laws and oversee the implementation of existing laws. The Legislature must exercise this fundamental function consistent with the peoples right to information on the need for the enactment of laws and the status of their implementation. The principal tool used by the Legislature in exercising this fundamental function is the power of inquiry which is inherent in every legislative body.[47] Without the power of inquiry, the Legislature cannot discharge its fundamental function and thus becomes inutile. The Constitution expressly grants to the Senate, the House of Representatives or any of its respective committees the power to conduct inquiries in aid of legislation.[48] This power of legislative inquiry is so searching and extensive in scope that the inquiry need not result in any potential legislation,[49] and may even end without any predictable legislation.[50] The phrase inquiries in aid of legislation refers to inquiries to aid the enactment of laws, inquiries to aid in overseeing the implementation of laws, and even inquiries to expose corruption, inefficiency or waste in executive departments.[51] Thus, the Legislature can conduct inquiries not specifically to enact laws, but specifically to oversee the implementation of laws. This is the mandate of various legislative oversight committees which admittedly can conduct inquiries on the status of the implementation of laws. In the exercise of the legislative oversight function, there is always the potential, even if not expressed or predicted, that the oversight committees may discover the need to improve the laws they oversee and thus recommend amendment of the laws. This is sufficient reason for the valid exercise of the power of legislative inquiry. Indeed, the oversight function of the Legislature may at times be as important as its law-making function.[52]
Aside from the purpose of the inquiry, the Constitution imposes two other limitations on the power of legislative inquiry.[53] One, the rules of procedure for the inquiry must be duly published. Publication of the rules of the inquiry is an essential requirement of due process. Two, the rights of persons appearing before the investigating committees, or affected by such inquiries, must be respected. These rights include the right against self-incrimination,[54] as well as the right to privacy of communications and correspondence of a private nature.[55] The power of legislative inquiry does not reach into the private affairs of citizens.[56] Also protected is the right to due process, which means that a witness must be given fair notice of the subject of the legislative inquiry. Fair notice is important because the witness may be cited in contempt, and even detained, if he refuses or fails to answer.[57] Moreover, false testimony before a legislative body is a crime.[58] Thus, the witness must be sufficiently informed of the nature of the inquiry so the witness can reasonably prepare for possible questions of the legislative committee. To avoid doubts on whether there is fair notice, the witness must be given in advance the questions pertaining to the basic nature of the inquiry.[59] From these advance questions, the witness can infer other follow-up or relevant questions that the legislative committee may ask in the course of the inquiry. The Legislature has the inherent power to enforce by compulsion its power of inquiry.[60] The Legislature can enforce its power of inquiry through its own sergeant-at-arms without the aid of law enforcement officers of the Executive[61] or resort to the courts.[62] The two principal means of enforcing the power of inquiry are for the Legislature to order the arrest of a witness who refuses to appear,[63] and to detain a witness who refuses to answer.[64] A law that makes a crime the refusal to appear before the Legislature does not divest the Legislature of its inherent power to arrest a recalcitrant witness.[65] The inherent power of the Legislature to arrest a recalcitrant witness remains despite the constitutional provision that no warrant of arrest shall issue except upon probable cause to be determined personally by the judge.[66] The power being inherent in the Legislature, essential for selfpreservation,[67] and not expressly withdrawn in the Constitution, the power forms part of the legislative power x x x vested in the Congress.[68] The Legislature asserts this power independently of the Judiciary.[69] A grant of legislative power in the Constitution is a grant of all legislative powers, including inherent powers.[70] The Legislature can cite in contempt and order the arrest of a witness who fails to appear pursuant to a subpoena ad testificandum. There is no
distinction between direct and indirect contempt of the Legislature because both can be punished motu propio by the Legislature upon failure of the witness to appear or answer. Contempt of the Legislature is different from contempt of court.[71] 3. Whether Executive Privilege Was Correctly Invoked In this Case
The Ermita Letter invokes two grounds in claiming executive privilege. First, the answers to the three questions involve confidential conversations of the President with petitioner. Second, the information sought to be disclosed might impair diplomatic as well as economic relations with the Peoples Republic of China. However, in his present Petition, which he verified under oath, petitioner declared:
7.03. Petitioners discussions with the President were candid discussions mean[t] to explore options in making policy decisions (see Almonte v. Vasquez, 244 SCRA 286 [1995]). These discussions dwelt on the impact of the bribery scandal involving high Government officials on the countrys diplomatic relations and economic and military affairs, and the possible loss of confidence of foreign investors and lenders in the Philippines. (Emphasis supplied) Petitioner categorically admits that his discussions with the President dwelt on the impact of bribery scandal involving high Government officials. Petitioners discussions with the President dealt not on simple bribery, but on scandalous bribery involving high Government officials of the Philippines. In a letter dated 29 November 2007 to the Chairs of the Committees, petitioners counsel declared:
4. His conversations with the President dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high Government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. x x x (Emphasis supplied) Petitioner admits, and there can be no dispute about this admission, that his discussions with the President dwelt on a bribery scandal involving high Government officials of the Philippines. Executive privilege can never be used to hide a crime or wrongdoing, even if committed by high government officials. Executive privilege applies
only to protect official acts and functions of the President, never to conceal illegal acts by anyone, not even those of the President.[72] During the oral arguments on 4 March 2008, counsel for petitioner admitted that executive privilege cannot be invoked to hide a crime. Counsel for petitioner also admitted that petitioner and the President discussed a scandal, and that the scandal was about bribery. Thus: JUSTICE CARPIO: Counsel, in your petition, paragraph 7.03, x x x you are referring to the discussions between Secretary Neri and the President and you state: - []This discussion dwelt on the impact of the bribery scandal involving high government officials on the countries diplomatic relations and economic and military affairs and the possible loss of confidence of foreign investors and lenders in the Philippines.[] You stated the same claim also in your letter of 29 November 2007 to the Senate, is that correct? ATTY. BAUTISTA: That is true, Your Honor.
JUSTICE CARPIO: Now, can Executive Privilege be invoked to hide a crime or a wrongdoing on the part of government officials? ATTY. BAUTISTA: Definitely not, Your Honor.
JUSTICE CARPIO: x x x Now, you are saying that the discussions between the President and Secretary Neri that you claim[x] to be privilege[ed] refer to bribery scandal involving government officials. So, you are admitting that there is a crime here? ATTY. BAUTISTA: Only the scandal, Your Honor, not the crime.
JUSTICE CARPIO: But you are saying bribery, bribery is a crime, correct? ATTY. BAUTISTA: That is true, Your Honor.
JUSTICE CARPIO: So, they discuss[ed] about a bribery involving government officials, correct? ATTY. BAUTISTA: JUSTICE CARPIO: ATTY. BAUTISTA: The scandal, Your Honor. No, [it] says bribery. Well, bribery, the scandal was about bribery. x x x. (Emphasis supplied) Petitioner admits in his Petition, and through his counsel in the 15
November 2007 letter to the Senate Blue Ribbon Committee and during the oral arguments, that he discussed with the President a bribery scandal involving high government officials. This particular discussion of petitioner with the President is not covered by executive privilege. The invocation of executive privilege on the three questions dwelling on a bribery scandal is clearly unjustified and void. Public office is a public trust[73] and not a shield to cover up wrongdoing. Petitioner must answer the three questions asked by the Senate Committees. The Ermita Letter merely raises a generalized assertion of executive privilege on diplomatic matters. The bare claim that disclosure might impair diplomatic relations with China, without specification of external evidence and circumstances justifying such claim, is insufficent to give rise to any presumptive executive privilege.[74] A claim of executive privilege is presumptively valid if there is specificity in the claim. The claim of impairment of economic relations with China is invalid because impairment of economic relations, involving foreign investors and lenders in the Philippines, is not a recognized ground for invoking executive privilege. The Ermita Letter does not claim impairment of military or national security secrets as grounds for executive privilege. The Ermita Letter only invokes confidential Presidential conversations and impairment of diplomatic and economic relations. However, in his Petition, petitioner declared that his discussions with the President referred to a bribery scandal affecting diplomatic relations and economic and military affairs. Likewise, in his 29 November 2007 letter to the Senate Committees, counsel for petitioner stated that petitioners discussions with the President referred to sensitive national security and diplomatic matters. Apparently, petitioner has expanded the grounds on which Executive Secretary Ermita invoked executive privilege on behalf of the President. Petitioner also confuses military secrets with national security secrets. Petitioners claim of executive privilege not only lacks specificity, it is also imprecise and confusing. In any event, what prevails is the invocation of Executive Secretary Ermita since he is the only one authorized to invoke executive privilege By Order of the President.[75] Thus, the bases for the claim of executive privilege are what the Ermita Letter states, namely, confidential Presidential conversations and impairment of diplomatic and economic relations. However, impairment of economic relations is not even a recognized ground. In short, this Court can only consider confidential Presidential conversations and impairment of diplomatic relations as grounds for the invocation of executive privilege in this petition.
During the oral arguments, counsel for petitioner failed to correct or remedy the lack of specificity in the invocation of executive privilege by Executive Secretary Ermita. Thus:
JUSTICE CARPIO: the NBN contract?
Okay, was the DFA involved in the negotiation[s] for I do not know, Your Honor. xxx xxx xxx
ATTY. BAUTISTA:[76]
CHIEF JUSTICE PUNO: Do [you] also know whether there is any aspect of the contract relating to diplomatic relations which was referred to the Department of Foreign Affairs for its comment and study? ATTY. LANTEJAS: As far as I know, Your Honors, there was no referral to the Department of Foreign Affairs, Your Honor. While claiming that petitioners discussions with the President on the NBN Project involved sensitive diplomatic matters, petitioner does not even know if the Department of Foreign Affairs (DFA) was involved in the NBN negotiations. This is incredulous considering that under the Revised Administrative Code, the DFA shall be the lead agency that shall advise and assist the President in planning, organizing, directing, coordinating and evaluating the total national effort in the field of foreign relations.[77] The three questions that Executive Secretary Ermita claims are covered by executive privilege, if answered by petitioner, will not disclose confidential Presidential communications. Neither will answering the questions disclose diplomatic secrets. Counsel for petitioner admitted this during the oral arguments in the following exchange:
ASSOCIATE JUSTICE CARPIO: Going to the first question x x x whether the President followed up the NBN project, is there anything wrong if the President follows up with NEDA the status of projects in government x x x, is there anything morally or legally wrong with that? ATTY. LANTEJAS:[78] (interrupted) There is nothing wrong, Your Honor, because
ASSOCIATE JUSTICE CARPIO: Thats normal. ATTY. LANTEJAS: Thats normal, because the President is the Chairman
of the NEDA Board, Your Honor. ASSOCIATE JUSTICE CARPIO: Yes, so there is nothing wrong. So why is Mr. Neri afraid to be asked this question? ATTY. LANTEJAS: I just cannot (interrupted)
ASSOCIATE JUSTICE CARPIO: You cannot fathom? ATTY. LANTEJAS: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: You cannot fathom. The second question, were you dictated to prioritize the ZTE [contract], is it the function of NEDA to prioritize specific contract[s] with private parties? No, yes? ATTY. LANTEJAS: The prioritization, Your Honor, is in the (interrupted).
ASSOCIATE JUSTICE CARPIO: Project? ATTY. LANTEJAS: Honor. In the procurement of financing from abroad, Your
ASSOCIATE JUSTICE CARPIO: Yes. The NEDA will prioritize a project, housing project, NBN project, the Dam project, but never a specific contract, correct? ATTY. LANTEJAS: Not a contract, Your Honor.
ASSOCIATE JUSTICE CARPIO: This question that Secretary Neri is afraid to be asked by the Senate, he can easily answer this, that NEDA does not prioritize contract[s], is that correct? ATTY. LANTEJAS: It is the project, Your Honor.
ASSOCIATE JUSTICE CARPIO: So why is he afraid to be asked this question? ATTY. LANTEJAS: I cannot, I cannot fathom. Your Honor.
ASSOCIATE JUSTICE CARPIO: You cannot fathom also? ATTY. LANTEJAS: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: But is there anything wrong if the President will tell the NEDA Director General, you prioritize this project, is there anything legally or morally wrong with that?
ATTY. LANTEJAS:
There is nothing wrong with that, Your Honor.
ASSOCIATE JUSTICE CARPIO: There is nothing [wrong]. It happens all the time? ATTY. LANTEJAS: The NEDA Board, the Chairman of the NEDA Board, yes, she can. ASSOCIATE JUSTICE CARPIO: [S]he can always tell that? ATTY. LANTEJAS: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: Okay. Lets go to the third question, whether the President said, to go ahead and approve the project after being told about the alleged bribe. Now, x x x it is not the NEDA Director General that approves the project, correct? ATTY. LANTEJAS: No, no, Your Honor. ASSOCIATE JUSTICE CARPIO: It is the (interrupted) ATTY. LANTEJAS: It is the NEDA Board, Your Honor.
ASSOCIATE JUSTICE CARPIO: The NEDA Board headed by the President. ATTY. LANTEJAS: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: So this question, is not correct also, x x x whether the President said to Secretary Neri to go ahead and approve the project? Secretary Neri does not approve the project, correct? ATTY. LANTEJAS: Hes just the Vice Chairman, Your Honor. ASSOCIATE JUSTICE CARPIO: So why is he afraid to be asked this question? ATTY. LANTEJAS: I cannot tell you, Your Honor.
ASSOCIATE JUSTICE CARPIO: You cannot fathom also? ATTY. LANTEJAS: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: You cannot fathom also. ATTY. LANTEJAS: Yes, Your Honor.
Petitioners counsel admits that he cannot fathom why petitioner refuses to answer the three questions. Petitioners counsel admits that the three questions, even if answered by petitioner, will not disclose confidential Presidential discussions or diplomatic secrets. The invocation of executive privilege is thus unjustified. Of course, it is possible that the follow-up questions to the three questions may call for disclosure of confidential presidential discussions or diplomatic secrets. However, executive privilege cannot be invoked on possible questions that have not been asked by the legislative committee. Executive privilege can only be invoked after the question is asked, not before, because the legislative committee may after all not ask the question. But even if the follow-up questions call for the disclosure of confidential Presidential discussions or diplomatic secrets, still executive privilege cannot be used to cover up a crime. 4. Whether the Senates Rules of Procedure on Inquiries Have Been Published The Constitution requires that the Legislature publish its rules of procedure on the conduct of legislative inquiries in aid of legislation.[79] There is no dispute that the last publication of the Rules of Procedure of the Senate Governing the Inquiries in Aid of Legislation was on 1 December 2006 in the Philippine Star and Philippine Daily Inquirer during the 13th Congress. There is also no dispute that the Rules of Procedure have not been published in newspapers of general circulation during the current 14th Congress. However, the Rules of Procedure have been published continuously in the website of the Senate since at least the 13th Congress. In addition, the Senate makes the Rules of Procedure available to the public in pamphlet form. Petitioner assails the validity of the Rules of Procedure because they have not been duly published for the 14th Congress.[80] Respondents counter that the Senate is a continuing legislative body. Respondents argue that as a continuing body, the Senate does not have to republish the Rules of Procedure because publication of the Rules of Procedure in the 13th Congress dispenses with republication of the Rules of Procedure in subsequent Congresses. The issue then turns on whether the Senate under the 1987 Constitution is a continuing body. In Arnault v. Nazareno,[81] decided under the 1935 Constitution, this Court ruled that the Senate of the Philippines is a continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds always continuing into the next Congress save as vacancies may occur thru
death or resignation. To act as a legislative body, the Senate must have a quorum, which is a majority of its membership.[82] Since the Senate under the 1935 Constitution always had two-thirds of its membership filled up except for vacancies arising from death or resignation, the Senate always maintained a quorum to act as a legislative body. Thus, the Senate under the 1935 Constitution continued to act as a legislative body even after the expiry of the term of one-third of its members. This is the rationale in holding that the Senate under the 1935 Constitution was a continuing legislative body.[83] The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to constitute a quorum to do business.[84] Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of twelve Senators. The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Taada v. Tuvera[85] ruling which requires publication either in the Official Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation,[86] precluding any other form of publication. Publication in accordance with Taada is mandatory to comply with the due process requirement because the Rules of Procedure put a persons liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate. Due process requires that fair notice be given to citizens before rules that put their liberty at risk take effect. The failure of the Senate to publish its Rules of Procedure as required in Section 22, Article VI of the Constitution renders the Rules of Procedure void. Thus, the Senate cannot enforce its Rules of Procedure. 5. Whether the Senate Committees Validly Ordered the Arrest of Petitioner The Senate and its investigating committees have the implied power to cite in contempt and order the arrest of a witness who refuses to appear
despite the issuance of a subpoena. The Senate can enforce the power of arrest through its own Sergeant-at-Arms. In the present case, based on the Minutes of Meetings and other documents submitted by respondents, the majority of the regular members of each of the respondent Committees voted to cite petitioner in contempt and order his arrest. However, the Senates Order of 30 January 2008 citing petitioner in contempt and ordering his arrest is void due to the non-publication of the Rules of Procedure.[87] The arrest of a citizen is a deprivation of liberty. The Constitution prohibits deprivation of liberty without due process of law. The Senate or its investigating committees can exercise the implied power to arrest only in accordance with due process which requires publication of the Senates Rules of Procedure. This Court has required judges to comply strictly with the due process requirements in exercising their express constitutional power to issue warrants of arrest.[88] This Court has voided warrants of arrest issued by judges who failed to comply with due process. This Court can do no less for arrest orders issued by the Senate or its committees in violation of due process. 6. Conclusion
In summary, the issues raised in this petition should be resolved as follows: a. Executive Secretary Ermitas invocation of executive privilege in his letter of 15 November 2007 to the Senate Committees is void because (1) executive privilege cannot be used to hide a crime; (2) the invocation of executive privilege lacks specificity; and (3) the three questions for which executive privilege is claimed can be answered without disclosing confidential Presidential communications or diplomatic secrets. b. The Senates Rules of Procedure are void for lack of publication; and
c. The Senate Committees Order of 30 January 2008 citing petitioner in contempt and directing his arrest is void for lack of published rules governing the conduct of inquiries in aid of legislation. Accordingly, I DISSENT from the majority opinions ruling that the three questions are covered by executive privilege. However, I CONCUR with the majority opinions ruling that the Rules of Procedure are void. Hence, I vote to GRANT the petition in part by (i) declaring void the assailed Order of respondents dated 30 January 2008 citing petitioner Secretary Romulo L. Neri in contempt and directing his arrest, and (ii) ordering respondents to desist from citing in contempt or arresting petitioner until the Senates
Rules of Procedure Governing Inquiries in Aid of Legislation are duly published and have become effective. ANTONIO T. CARPIO Associate Justice
EN BANC [G.R. No. 180643, September 04, 2008] ROMULO L. NERI, PETITIONER, VS. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, RESPONDENTS. RESOLUTION
LEONARDO-DE CASTRO, J.: Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the nation will receive the benefit of candid, objective and untrammeled communication and exchange of information between the President and his/her advisers in the process of shaping or forming policies and arriving at decisions in the exercise of the functions of the Presidency under the Constitution. The confidentiality of the President's conversations and correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens and more, because it is dictated by public interest and the constitutionally ordained separation of governmental powers. In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even acrimoniously, debated dispute between the Court's co-equal branches of government. In this task, this Court should neither curb the legitimate powers of any of the co-equal and coordinate branches of government nor allow any of them to overstep the boundaries set for it by our Constitution. The competing interests in the case at bar are the claim of executive privilege by the President, on the one hand, and the respondent Senate Committees' assertion of their power to conduct legislative inquiries, on the other. The particular facts and circumstances of the present case, stripped of the politically and emotionally charged rhetoric from both sides and viewed in the light of settled constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive privilege must be upheld. Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on Accountability of Public Officers and Investigations,[1] Trade and Commerce,[2] and National Defense and Security (collectively the "respondent Committees").[3] A brief review of the facts is imperative. On September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"), a project awarded by the Department of Transportation and Communications ("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she

instructed him not to accept the bribe. However, when probed further on President Arroyo and petitioner's discussions relating to the NBN Project, petitioner refused to answer, invoking "executive privilege." To be specific, petitioner refused to answer questions on: (a)whether or not President Arroyo followed up the NBN Project,[4] (b) whether or not she directed him to prioritize it,[5] and (c) whether or not she directed him to approve it.[6] Respondent Committees persisted in knowing petitioner's answers to these three questions by requiring him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with petitioner's testimony on the ground of executive privilege.[7] The letter of Executive Secretary Ermita pertinently stated: Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations. The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with. On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the President invoking executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter requiring him to explain why he should not be cited in contempt. On November 29, 2007, in petitioner's reply to respondent Committees, he manifested that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege. He also manifested his willingness to appear and testify should there be new matters to be taken up. He just requested that he be furnished "in advance as to what else" he "needs to clarify." Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his request for advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms until such time that he would appear and give his testimony. On the same date, petitioner moved for the reconsideration of the above Order.[8] He insisted that he had not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters, but respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for certiorari he previously filed with this Court on December 7,

2007. According to him, this should restrain respondent Committees from enforcing the order dated January 30, 2008 which declared him in contempt and directed his arrest and detention. Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary Injunction) on February 1, 2008. In the Court's Resolution dated February 4, 2008, the parties were required to observe the status quo prevailing prior to the Order dated January 30, 2008. On March 25, 2008, the Court granted his petition for certiorari on two grounds: first,the communications elicited by the three (3) questions were covered by executive privilege; and second, respondent Committees committed grave abuse of discretion in issuing the contempt order. Anent the first ground, we considered the subject communications as falling under the presidential communications privilegebecause (a) they related to a quintessential and non-delegable power of the President, (b) they were received by a close advisor of the President, and (c)respondent Committees failed to adequately show a compelling need that would justify the limitation of the privilege and the unavailability of the information elsewhere by an appropriate investigating authority. As to the second ground, we found that respondent Committees committed grave abuse of discretion in issuing the contempt order because (a) there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the Constitution because their inquiry was not in accordance with the "duly published rules of procedure," and (e) they issued the contempt order arbitrarily and precipitately. On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the following grounds: I CONTRARY TO THIS HON ORABLE COURT'S DECISION, THERE IS NO DOUBT THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS. II CONTRARY TO THIS HON ORABLE COURT'S DECISION, THERE CAN BE NO PRESUMPTION THAT THE INFO RMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED. III CONTRARY TO THIS HON ORABLE COURT'S DECISION, THERE IS NO FACT UAL OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT: A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS. EVEN IF THE TESTS ADO PTED BY THIS HON ORABLE COURT IN THE DECISION IS A PPL IED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT. ON THE CONTRARY, THERE IS ADEQUATE SHOW ING OF A COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.
B.
C.

D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS' PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS. E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.
IV CONTRARY TO THIS HON ORABLE COURT'S DECISION, RESPONDENTS DID NOT COMM IT G RAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT: A. B. THERE IS NO LEG IT IMAT E CLAIM OF EXECUTIVE PR IVIL EGE IN THE INSTANT CASE. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE V. ERMITA. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR INTERNAL RULES.
C.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE OSG'S INTERVENTION ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT. E. RESPONDENTS' ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project or asking him additional questions. According to petitioner, the Court merely applied the rule on executive privilege to the facts of the case. He further submits the following contentions: first,the assailed Decision did not reverse the presumption against executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed to overcome the presumption of executive privilege because it appears that they could legislate even without the communications elicited by the three (3) questions, and they admitted that they could dispense with petitioner's testimony if certain NEDA documents would be given to them; third, the requirement of specificity applies only to the privilege for State, military and diplomatic secrets, not to the necessarily broad and all-encompassing presidential communications privilege; fourth, there is no right to pry into the President's thought processes or exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has the power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure of the present Senate to publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on them; eighth, the requirement for a witness to be furnished advance copy of questions comports with due process and the constitutional mandate that the rights of witnesses be respected; and ninth, neither petitioner nor respondent has the final say on the matter of executive privilege, only the Court. For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement from the Court that the assailed Orders were issued by respondent Committees pursuant to their oversight function; hence, there is no reason for them "to make much" of the distinction between Sections 21 and 22,

Article VI of the Constitution; (2) presidential communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v. Vasquez[9] and Chavez v. Public Estates Authority (PEA)[10]; (3) the communications elicited by the three (3) questions are covered by executive privilege, because all the elements of the presidential communications privilege are present; (4) the subpoena ad testificandumissued by respondent Committees to petitioner is fatally defective under existing law and jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6) respondent Committees arbitrarily issued the contempt order. Incidentally, respondent Committees' objection to the Resolution dated March 18, 2008 (granting the Office of the Solicitor General's Motion for Leave to Intervene and to Admit Attached Memorandum) only after the promulgation of the Decision in this case is foreclosed by its untimeliness. The core issues that arise from the foregoing respective contentions of the opposing parties are as follows:
(1) (2) (3) (4)
whether or not there is a recognized presumptive presidential communications privilege in our legal system; whether or not there is factual or legal basis to hold that the communications elicited by the three (3) questions are covered by executive privilege; whether or not respondent Committees have shown that the communications elicited by the three (3) questions are critical to the exercise of their functions; and whether or not respondent Committees committed grave abuse of discretion in issuing the contempt order.
We shall discuss these issues seriatim. I There Is a Recognized Presumptive Presidential Communications Privilege Respondent Committees ardently argue that the Court's declaration that presidential communications are presumptively privileged reverses the "presumption" laid down inSenate v. Ermita[11] that "inclines heavily against executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court erred in relying on the doctrine in Nixon. Respondent Committees argue as if this were the first time the presumption in favor of the presidential communications privilege is mentioned and adopted in our legal system. That is far from the truth. The Court, in the earlier case of Almonte v. Vasquez,[12] affirmed that the presidential communications privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. Even Senate v. Ermita,[13] the case relied upon by respondent Committees, reiterated this concept. There, the Court enumerated the cases in which the claim of executive privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),[14] andChavez v. PEA.[15] The Court articulated in these cases that "there are certain types of information which the government may withhold from the public,[16]" that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters";[17] and that "the right to information does not extend to matters recognized as `privileged information' under the separation of powers, by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings."[18] Respondent Committees' observation that this Court's Decision reversed the "presumption that inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no specific portion thereof should be isolated and resorted to, but the decision must be considered in its entirety.[19] Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent portion of the decision in the said case reads:

From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation tocertain 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 theexemptions indicates that the presumption inclines heavilyagainst executive secrecy and in favor of disclosure. (Emphasis and underscoring supplied) Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in the Executive Branch. This means that when an executive official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of authorization to invoke executive privilege given by the President to said executive official, such that the presumption in this situation inclines heavily against executive secrecy and in favor of disclosure. Senate v. Ermita [20]expounds on the premise of the foregoing ruling in this wise: Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the President's authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence. Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which iscrucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President", which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score. The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case. In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific matter involving an executive agreement between the Philippines and China, which was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate Committees' investigation. Thus, the factual setting of this case markedly differs from that passed upon in Senate v. Ermita. Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling in Senate v. Ermita,[21] to wit: Executive privilege
The phrase "executive privilege" is not new in this jurisdiction.It has been used even prior to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States. Schwart defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public." x x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege: "The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, he has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and italics supplied) Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication," which was recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees, referring to the nonexistence of a "presumptive authorization" of an executive official, to mean that the "presumption" in favor of executive privilege "inclines heavily against executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction. Senate v. Ermita[22] expounds on the constitutional underpinning of the relationship between the Executive Department and the Legislative Department to explain why there should be no implied authorization or presumptive authorization to invoke executive privilege by the President's subordinate officials, as follows: When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power - the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on he being the highest official of the executive branch, and the due respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom. (Underscoring supplied) Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the President on a matter clearly within the domain of the Executive, the said presumption dictates that the same be recognized and be given preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing such presumption. Any construction to the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege for Presidential communications."[23] II There Are Factual and Legal Bases to Hold that the Communications Elicited by the Three (3) Questions Are Covered by Executive Privilege Respondent Committees claim that the communications elicited by the three (3) questions are not covered by executive privilege because the elements of thepresidential communications privilege are not

present. A. The power to enter into an executive agreement is a "quintessential and non-delegable presidential power." First, respondent Committees contend that the power to secure a foreign loan does not relate to a "quintessential and non-delegable presidential power," because the Constitution does not vest it in the President alone, but also in the Monetary Board which is required to give its prior concurrence and to report to Congress. This argument is unpersuasive. The fact that a power is subject to the concurrence of another entity does not make such power less executive. "Quintessential" is defined as the most perfect embodiment of something, the concentrated essence of substance.[24] On the other hand, "non-delegable" means that a power or duty cannot be delegated to another or, even if delegated, the responsibility remains with the obligor.[25] The power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.[26] Now, the fact that the President has to secure the prior concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision before contracting or guaranteeing foreign loans, does not diminish the executive nature of the power. The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of government by no means prescribes absolute autonomy in the discharge by each branch of that part of the governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and balances, which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches. Thus, by analogy, the fact that certain legislative acts require action from the President for their validity does not render such acts less legislative in nature. A good example is the power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by Congress shall, before it becomes a law, be presented to the President who shall approve or veto the same. The fact that the approval or vetoing of the bill is lodged with the President does not render the power to pass law executive in nature. This is because the power to pass law is generally a quintessential and non-delegable power of the Legislature. In the same vein, the executive power to enter or not to enter into a contract to secure foreign loans does not become less executive in nature because of conditions laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged in the Office of the President. B. The "doctrine of operational proximity"was laid down precisely to limit the scope of the presidential communications privilege but, in any case, it is not conclusive. Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential communications privilege to communications between those who are `operationally proximate' to the President but who may have "no direct communications with her." It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed Case[27] precisely to limit the scope of the presidential communications privilege. The U.S. court was aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to White House staff, and not to staffs of the agencies, and then only to White House staff that has "operational proximity" to direct presidential decision-making, thus:

We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a recognition of the unique role of the President. In order to limit this risk, the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President's decision-making process is adequately protected. Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility for investigation and formulating the advice to be given the President on the particular matter to which the communications relate. Only communications at that level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers.See AAPS, 997 F.2d at 910 (it is "operational proximity" to the President that matters in determining whether "[t]he President's confidentiality interests" is implicated). (Emphasis supplied) In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear apparently entertained by respondents) is absent because the official involved here is a member of the Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of her official family. Nevertheless, in circumstances in which the official involved is far too remote, this Court also mentioned in the Decision the organizational test laid down in Judicial Watch, Inc. v. Department of Justice.[28] This goes to show that the operational proximity test used in the Decision is not considered conclusive in every case. In determining which test to use, the main consideration is to limit the availability of executive privilege only to officials who stand proximate to the President, not only by reason of their function, but also by reason of their positions in the Executive's organizational structure. Thus, respondent Committees' fear that the scope of the privilege would be unnecessarily expanded with the use of the operational proximity test is unfounded. C. The President's claim of executive privilege is not merely based on a generalized interest; and in balancing respondent Committees' and the President's clashing interests, the Court did not disregard the 1987 Constitutional provisions on government transparency, accountability and disclosure of information. Third, respondent Committees claim that the Court erred in upholding the President's invocation, through the Executive Secretary, of executive privilege because (a)between respondent Committees' specific and demonstrated need and the President's generalized interest in confidentiality, there is a need to strike the balance in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of the 1987 Philippine Constitution on government transparency, accountability and disclosure of information, specifically, Article III, Section 7;[29] Article II, Sections 24[30] and 28;[31] Article XI, Section 1;[32] Article XVI, Section 10;[33] Article VII, Section 20;[34] and Article XII, Sections 9,[35] 21,[36] and 22.[37] It must be stressed that the President's claim of executive privilege is not merely founded on her generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita specified presidential communications privilege in relation to diplomatic and economic relations with another sovereign nation as the bases for the claim. Thus, the Letter stated: The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which this information were conveyed to the President, he cannot

provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. (emphasis supplied) Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect for a coordinate and co-equal department. It is easy to discern the danger that goes with the disclosure of the President's communication with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product of the meeting of minds between officials of the Philippines and China. Whatever the President says about the agreement - particularly while official negotiations are ongoing - are matters which China will surely view with particular interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as well as economic relations with the People's Republic of China. We reiterate the importance of secrecy in matters involving foreign negotiations as stated in United States v. Curtiss-Wright Export Corp., [38] thus: The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent. US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas G. Aquino, et al.[39] upheld the privileged character of diplomatic negotiations. In Akbayan, the Court stated: Privileged character of diplomatic negotiations The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that "information on intergovernment exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest." Even earlier, the same privilege was upheld inPeople's Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the privilege in more precise terms. In PMPF v. Manglapus, the therein petitioners were seeking information from the President's representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement. The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information." The Resolution went on to state, thus: The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature. Although much has been said about "open" and "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson: "A complicated negotiation ...cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances... If these reports... should become public... who would ever trustAmerican Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284) xxxx

There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, "It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have "open covenants, openly arrived at." He quickly abandoned his thought. No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to a widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved.(The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied) Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that the President is the sole organ of the nation in its negotiations with foreign countries,viz: "x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makestreaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great arguments of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613... (Emphasis supplied; underscoring in the original) Considering that the information sought through the three (3) questions subject of this Petition involves the President's dealings with a foreign nation, with more reason, this Court is wary of approving the view that Congress may peremptorily inquire into not only official, documented acts of the President but even her confidential and informal discussions with her close advisors on the pretext that said questions serve some vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive to unrestricted congressional inquiries done with increased frequency and great publicity. No Executive can effectively discharge constitutional functions in the face of intense and unchecked legislative incursion into the core of the President's decision-making process, which inevitably would involve her conversations with a member of her Cabinet. With respect to respondent Committees' invocation of constitutional prescriptions regarding the right of the people to information and public accountability and transparency, the Court finds nothing in these arguments to support respondent Committees' case. There is no debate as to the importance of the constitutional right of the people to information and the constitutional policies on public accountability and transparency. These are the twin postulates vital to the effective functioning of a democratic government. The citizenry can become prey to the whims and caprices of those to whom the power has been delegated if they are denied access to information. And the policies on public accountability and democratic government would certainly be mere empty words if access to such information of public concern is denied. In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did not in any way curb the public's right to information or diminish the importance of public accountability and transparency. This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project. They could continue the investigation and even call petitioner Neri to testify again. He himself has repeatedly expressed his willingness to do so. Our Decision merely excludes from the scope of respondents' investigation the three (3) questions that elicit answers covered by executive privilege and rules that

petitioner cannot be compelled to appear before respondents to answer the said questions. We have discussed the reasons why these answers are covered by executive privilege. That there is a recognized public interest in the confidentiality of such information is a recognized principle in other democratic States. To put it simply, the right to information is not an absolute right. Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to information. By their wording, the intention of the Framers to subject such right to the regulation of the law is unmistakable. The highlighted portions of the following provisions show the obvious limitations on the right to information, thus: Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Emphasis supplied) In Chavez v. Presidential Commission on Good Government,[40] it was stated that there are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1) national security matters,(2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information. National security matters include state secrets regarding military and diplomatic matters, as well as information on inter-government exchanges prior to the conclusion of treaties and executive agreements. It was further held that even where there is no need to protect such state secrets, they must be "examined in strict confidence and given scrupulous protection." Incidentally, the right primarily involved here is the right of respondent Committees to obtain information allegedly in aid of legislation, not the people's right to public information. This is the reason why we stressed in the assailed Decision the distinction between these two rights. As laid down in Senate v. Ermita, "the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress" and "neither does the right to information grant a citizen the power to exact testimony from government officials." As pointed out, these rights belong to Congress, not to the individual citizen. It is worth mentioning at this juncture that the parties here are respondent Committees and petitioner Neri and that there was no prior request for information on the part of any individual citizen. This Court will not be swayed by attempts to blur the distinctions between the Legislature's right to information in a legitimate legislative inquiry and the public's right to information. For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by executive privilege. III. Respondent Committees Failed to Show That the Communications Elicited by the Three Questions Are Critical to the Exercise of their Functions In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the purported legislative nature of their entire inquiry, as opposed to an oversight inquiry. At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees' inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees' power to

investigate the NBN Project in aid of legislation. However, this Court cannot uphold the view that when a constitutionally guaranteed privilege or right is validly invoked by a witness in the course of a legislative investigation, the legislative purpose of respondent Committees' questions can be sufficiently supported by the expedient of mentioning statutes and/or pending bills to which their inquiry as a whole may have relevance. The jurisprudential test laid down by this Court in past decisions on executive privilege is that the presumption of privilege can only be overturned by a showing of compelling need for disclosure of the information covered by executive privilege. In the Decision, the majority held that "there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority." In the Motion for Reconsideration, respondent Committees argue that the information elicited by the three (3) questions are necessary in the discharge of their legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and corruption. We remain unpersuaded by respondents' assertions. In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it is necessary to resolve the competing interests in a manner that would preserve the essential functions of each branch. There, the Court weighed between presidential privilege and the legitimate claims of the judicial process. In giving more weight to the latter, the Court ruled that the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting opinion, as follows: "... this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. xxx xxx xxx The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right 'to be confronted with the witness against him' and 'to have compulsory process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment alsoguarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced. In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. (emphasis supplied) xxx xxx xxx ... the allowance of the privilege to withhold evidence that isdemonstrably relevant in a criminal trial

would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communication will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. (emphasis supplied) In the case at bar, we are not confronted with a court's need for facts in order to adjudge liability in a criminal case but rather with the Senate's need for information in relation to its legislative functions. This leads us to consider once again just how critical is the subject information in the discharge of respondent Committees' functions. The burden to show this is on the respondent Committees, since they seek to intrude into the sphere of competence of the President in order to gather information which, according to said respondents, would "aid" them in crafting legislation. Senate Select Committee on Presidential Campaign Activities v. Nixon[41] expounded on the nature of a legislative inquiry in aid of legislation in this wise: The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have been in the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events. (Emphasis supplied) Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or demonstratively critical and specific need for facts which is so essential to the judicial power to adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the instant case, which unlikeArnault involves a conflict between two (2) separate, co-equal and coordinate Branches of the Government. Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive and the Legislative Branches is the recognized existence of the presumptive presidential communications privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states: A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in favor of the Presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select Committee on Presidential Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all recognize that there is a presumptive privilege in favor of Presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a presumption in favor of confidentialityof Presidential communications.

The presumption in favor of Presidential communications puts the burden on the respondent Senate Committees to overturn the presumption by demonstrating their specific need for the information to be elicited by the answers to the three (3) questions subject of this case, to enable them to craft legislation. Here, there is simply a generalized assertion that the information is pertinent to the exercise of the power to legislate and a broad and non-specific reference to pending Senate bills. It is not clear what matters relating to these bills could not be determined without the said information sought by the three (3) questions. As correctly pointed out by the Honorable Justice Dante O. Tinga in his Separate Concurring Opinion: ...If respondents are operating under the premise that the president and/or her executive officials have committed wrongdoings that need to be corrected or prevented from recurring by remedial legislation, the answer to those three questions will not necessarily bolster or inhibit respondents from proceeding with such legislation. They could easily presume the worst of the president in enacting such legislation. For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted that the Senate could still come up with legislations even without petitioner answering the three (3) questions. In other words, the information being elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO So can you tell the Court how critical are these questions to the lawmaking function of the Senate. For instance, question Number 1 whether the President followed up the NBN project. According to the other counsel this question has already been asked, is that correct? ATTY . AGABIN Well, the question has been asked but it was not answered, Your Honor. CHIEF JUSTICE PUNO Yes. But my question is how critical is this to the lawmaking function of the Senate? ATTY . AGABIN I believe it is critical, Your Honor. CHIEF JUSTICE PUNO Why? ATTY . AGABIN For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to indorse a Bill to include Executive Agreements had been used as a device to the circumventing the Procurement Law. CHIEF JUSTICE PUNO But the question is just following it up. ATTY . AGABIN I believe that may be the initial question, Your Honor, because if we look at this problem in its factual setting as counsel for petitioner has observed, there are intimations of a bribery scandal involving high government officials. CHIEF JUSTICE PUNO Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the lawmaking function of the Senate? Will it result to the failure of the Senate to cobble a Bill without this question? ATTY . AGABIN I think it is critical to lay the factual foundations for a proposed amendment to the Procurement Law, Your Honor, because the petitioner had already testified that he was offered a P200 Million bribe, so if he was offered a P200 Million bribe it is possible that other government officials who had something to do with the approval of the contract would be offered the same amount of bribes. CHIEF JUSTICE PUNO Again, that is speculative. ATTY . AGABIN That is why they want to continue with the investigation, Your Honor. CHIEF JUSTICE PUNO How about the third question, whether the President said to go ahead and approve the project after being told about the alleged bribe. How critical is that to the lawmaking function of the Senate? And the question is may they craft a Bill a remedial law without forcing petitioner Neri to answer this question? ATTY . AGABIN Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires that a proposed Bill should have some basis in fact.[42]
The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or how the withholding of the information sought will hinder the accomplishment of their legislative purpose is very evident in the above oral exchanges. Due to the failure of the respondent Committees to successfully discharge this burden, the presumption in favor of confidentiality of presidential communication stands. The implication of the said presumption, like any other, is to dispense with the burden of proof as to whether the disclosure will significantly impair the President's performance of her function. Needless to state

this is assumed, by virtue of the presumption. Anent respondent Committees' bewailing that they would have to "speculate" regarding the questions covered by the privilege, this does not evince a compelling need for the information sought. Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon[43] held that while fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability than on a precise reconstruction of past events. It added that, normally, Congress legislates on the basis of conflicting information provided in its hearings. We cannot subscribe to the respondent Committees' self-defeating proposition that without the answers to the three (3) questions objected to as privileged, the distinguished members of the respondent Committees cannot intelligently craft legislation. Anent the function to curb graft and corruption, it must be stressed that respondent Committees' need for information in the exercise of this function is not as compelling as in instances when the purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight function of Congress.[44] And if this is the primary objective of respondent Committees in asking the three (3) questions covered by privilege, it may even contradict their claim that their purpose is legislative in nature and not oversight. In any event, whether or not investigating graft and corruption is a legislative or oversight function of Congress, respondent Committees' investigation cannot transgress bounds set by the Constitution. In Bengzon, Jr. v. Senate Blue Ribbon Committee,[45] this Court ruled: The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, "the political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases.[46] (Emphasis supplied) There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really `in aid of legislation' because it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears more within the province of the courts rather than of the Legislature."[47] (Emphasis and underscoring supplied) The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the President.[48] While it may be a worthy endeavor to investigate the potential culpability of high government officials, including the President, in a given government transaction, it is simply not a task for the Senate to perform. The role of the Legislature is to make laws, not to determine anyone's guilt of a crime or wrongdoing. Our Constitution has not bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute. Respondent Committees claim that they are conducting an inquiry in aid of legislationand a "search for truth," which in respondent Committees' view appears to be equated with the search for persons responsible for "anomalies" in government contracts. No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal activity, the investigation of the role played by each official, the determination of who should be haled to court for prosecution and the task of coming up with conclusions and finding of facts regarding anomalies, especially the determination of criminal guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency. Moreover, it bears stressing that no inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e. legislation. Investigations conducted solely to gather incriminatory evidence and "punish" those investigated are indefensible. There is no

Congressional power to expose for the sake of exposure.[49] In this regard, the pronouncement in Barenblatt v. United States[50] is instructive, thus: Broad as it is, the power is not, however, without limitations.Since Congress may only investigate into the areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive. (Emphasis supplied.) At this juncture, it is important to stress that complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. Under our Constitution, it is the Ombudsman who has the duty "to investigate any act or omission of any public official, employee, office or agency when such act or omission appears to be illegal, unjust, improper, or inefficient."[51] The Office of the Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily determine whether or not the allegations of anomaly are true and who are liable therefor. The same holds true for our courts upon which the Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules of procedure in the Office of the Ombudsman and the courts are well-defined and ensure that the constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected and safeguarded. Should respondent Committees uncover information related to a possible crime in the course of their investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of government. Thus, the Legislature's need for information in an investigation of graft and corruption cannot be deemed compelling enough to pierce the confidentiality of information validly covered by executive privilege. As discussed above, the Legislature can still legislate on graft and corruption even without the information covered by the three (3) questions subject of the petition. Corollarily, respondent Committees justify their rejection of petitioner's claim of executive privilege on the ground that there is no privilege when the information sought might involve a crime or illegal activity, despite the absence of an administrative or judicial determination to that effect. Significantly, however, in Nixon v. Sirica,[52] the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon does not apply to the case at bar because, unlike in the said case, no impeachment proceeding has been initiated at present. The Court is not persuaded. While it is true that no impeachment proceeding has been initiated, however, complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are the bodies equipped and mandated by the Constitution and our laws to determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and penalized for criminal conduct. Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of evidence applicable to judicial proceedings which do not affect substantive rights need not be observed by the Committee." Court rules which prohibit leading, hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do not apply to a legislative inquiry. Every person, from the highest public official to the most ordinary citizen, has the right to be presumed innocent until proven guilty in proper proceedings by a competent court or body. IV

Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down in Senate v. Ermita; (3)they issued the contempt order in accordance with their internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of the contempt order is not arbitrary or precipitate. We reaffirm our earlier ruling. The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see no reason to discuss it once again. Respondent Committees' second argument rests on the view that the ruling in Senate v. Ermita, requiring invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry" along with the "usual indication of the subject of inquiry and the questions relative to and in furtherance thereof" is not provided for by the Constitution and is merely an obiter dictum. On the contrary, the Court sees the rationale and necessity of compliance with these requirements. An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses. Consequently, claims that the investigative power of Congress has been abused (or has the potential for abuse) have been raised many times.[53] Constant exposure to congressional subpoena takes its toll on the ability of the Executive to function effectively. The requirements set forth in Senate v. Ermitaare modest mechanisms that would not unduly limit Congress' power. The legislative inquiry must be confined to permissible areas and thus, prevent the "roving commissions" referred to in the U.S. case, Kilbourn v. Thompson.[54] Likewise, witnesses have their constitutional right to due process. They should be adequately informed what matters are to be covered by the inquiry. It will also allow them to prepare the pertinent information and documents. To our mind, these requirements concede too little political costs or burdens on the part of Congress when viewed vis- -vis the immensity of its power of inquiry. The logic of these requirements is well articulated in the study conducted by William P. Marshall,[55] to wit: A second concern that might be addressed is that the current system allows committees to continually investigate the Executive without constraint. One process solution addressing this concern is to require each investigation be tied to a clearly stated purpose.At present, the charters of some congressional committees are so broad that virtually any matter involving the Executive can be construed to fall within their province. Accordingly, investigations can proceed without articulation of specific need or purpose. A requirement for a more precise charge in order to begin an inquiry should immediately work to limit the initial scope of the investigation and should also serve to contain the investigation once it is instituted. Additionally, to the extent clear statements of rules cause legislatures to pause and seriously consider the constitutional implications of proposed courses of action in other areas, they would serve that goal in the context of congressional investigations as well. The key to this reform is in its details. A system that allows a standing committee to simply articulate its reasons to investigate pro forma does no more than imposes minimal drafting burdens. Rather, the system must be designed in a manner that imposes actual burdens on the committee to articulate its need for investigation and allows for meaningful debate about the merits of proceeding with the investigation.(Emphasis supplied) Clearly, petitioner's request to be furnished an advance copy of questions is a reasonable demand that should have been granted by respondent Committees. Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena

merely commanded him to "testify on what he knows relative to the subject matter under inquiry." Anent the third argument, respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is true that this Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of government, however, when a constitutional requirement exists, the Court has the duty to look into Congress' compliance therewith. We cannot turn a blind eye to possible violations of the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo v. De Venecia[56] is enlightening, thus: "Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals. United States v. Ballin, Joseph & Co., the rule was stated thus: `The Constitution empowers each House to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained." In the present case, the Court's exercise of its power of judicial review is warranted because there appears to be a clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules provides that: "The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members." (Emphasis supplied) In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This number could hardly fulfill the majority requirement needed by respondent Committee on Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators and respondent Committee on National Defense and Security which has a membership of eighteen (18) Senators. With respect to respondent Committee on Trade and Commerce which has a membership of nine (9) Senators, only three (3) members were present.[57] These facts prompted us to quote in the Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the required majority to deliberate and vote on the contempt order. When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the Senators effectively signed for the Senate in plenary session.[58] Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is flawed. Instead of being submitted to a full debate by all the members of the respondent Committees, the contempt order was prepared and thereafter presented to the other members for signing. As a result, the contempt order which was issued on January 30, 2008 was not a faithful representation of the proceedings that took place on said date. Records clearly show that not all of those who signed the contempt order were present during the January 30, 2008 deliberation when the matter was taken up. Section 21, Article VI of the Constitution states that: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of person appearing in or affected by such inquiries shall be respected.(Emphasis supplied) All the limitations embodied in the foregoing provision form part of the witness' settled expectation. If the limitations are not observed, the witness' settled expectation is shattered. Here, how could there be a majority vote when the members in attendance are not enough to arrive at such majority? Petitioner has the right to expect that he can be cited in contempt only through a majority vote in a proceeding in which the matter has been fully deliberated upon. There is a greater measure of protection for the witness when the concerns and objections of the members are fully articulated in such proceeding. We do not believe that respondent Committees have the discretion to set aside their rules anytime they wish. This is especially true

here where what is involved is the contempt power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody else, it is the witness who has the highest stake in the proper observance of the Rules. Having touched the subject of the Rules, we now proceed to respondent Committees' fourth argument. Respondent Committees argue that the Senate does not have to publish its Rules because the same was published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not required to republish theRules, unless the same is repealed or amended. On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-today business the Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states: RULE XLIV UNFINISHED BUSINESS SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status. All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present for the first time. (emphasis supplied) Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next Congress with the same status. This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate's main rules of procedure) states: RULE LI AMENDMENTS TO, OR REVISIONS OF, THE RULES SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision. The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval. (emphasis supplied) RULE LII DATE OF TAKING EFFECT SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. (emphasis supplied) Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of each session in

which the newly elected Senators shall begin their term. However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation."[59] The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules(on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished business. The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice. If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity. Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid and effective. Respondent Committees' last argument is that their issuance of the contempt order is not precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in their argument. As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly manifested his willingness to attend subsequent hearings and respond to new matters. His only request was that he be furnished a copy of the new questions in advance to enable him to adequately prepare as a resource person. He did not attend the November 20, 2007 hearing because Executive Secretary Ermita requested respondent Committees to dispense with his testimony on the ground of executive privilege. Note that petitioner is an executive official under the direct control and supervision of the Chief Executive. Why punish petitioner for contempt when he was merely directed by his superior? Besides, save for the three (3) questions, he was very cooperative during the September 26, 2007 hearing. On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on Executive Secretary Ermita's claim of executive privilege, they curtly dismissed it as unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their ruling and given him time to decide whether to accede or file a motion for reconsideration. After all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of government. He is an alter ego of the President. The same haste and impatience marked the issuance of the contempt order, despite the absence of the majority of the members of the respondent Committees, and their subsequent disregard of petitioner's motion for reconsideration alleging the pendency of his petition for certiorari before this Court. On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political branches of government. In a free and democratic society, the interests of these branches inevitably clash, but each must treat the other with official courtesy and respect. This Court wholeheartedly concurs with the proposition that it is imperative for the continued health of our democratic institutions that we preserve the

constitutionally mandated checks and balances among the different branches of government. In the present case, it is respondent Committees' contention that their determination on the validity of executive privilege should be binding on the Executive and the Courts. It is their assertion that their internal procedures and deliberations cannot be inquired into by this Court supposedly in accordance with the principle of respect between co-equal branches of government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent Committees' paradigm of checks and balances, what are the checks to the Legislature's all-encompassing, awesome power of investigation? It is a power, like any other, that is susceptible to grave abuse. While this Court finds laudable the respondent Committees' well-intentioned efforts to ferret out corruption, even in the highest echelons of government, such lofty intentions do not validate or accord to Congress powers denied to it by the Constitution and granted instead to the other branches of government. There is no question that any story of government malfeasance deserves an inquiry into its veracity. As respondent Committees contend, this is founded on the constitutional command of transparency and public accountability. The recent clamor for a "search for truth" by the general public, the religious community and the academe is an indication of a concerned citizenry, a nation that demands an accounting of an entrusted power. However, the best venue for this noble undertaking is not in the political branches of government. The customary partisanship and the absence of generally accepted rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets the test of the constitutional guarantee of due process of law. We believe the people deserve a more exacting "search for truth" than the process here in question, if that is its objective. WHEREFORE, respondent Committees' Motion for Reconsideration dated April 8, 2008 is hereby DENIED. SO ORDERED.
Garcillano vs House of Representative Committees

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 170338 December 23, 2008
VIRGILIO O. GARCILLANO, petitioner, vs. THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL REFORMS, respondents. x----------------------x G.R. No. 179275 December 23, 2008
SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners, vs. THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE PRESIDENT THE HONORABLE MANUEL VILLAR, respondents. x----------------------x MAJ. LINDSAY REX SAGGE, petitioner-in-intervention x----------------------x AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON, PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F. TRILLANES, respondents-intervenors DECISION NACHURA, J.: More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly between the President of the Philippines and a high-ranking official of the Commission on Elections (COMELEC) surfaced. They captured unprecedented public attention and thrust the country into a controversy that placed the legitimacy of the present administration on the line, and resulted in the near-collapse of the Arroyo government. The tapes, notoriously referred to as the "Hello Garci" tapes, allegedly contained the Presidents instructions to COMELEC Commissioner Virgilio Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings were to become the subject of heated legislative hearings conducted separately by committees of both Houses of Congress.1 In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G. Escudero delivered a privilege speech, "Tale of Two Tapes," and set in motion a congressional investigation jointly conducted by the Committees on Public Information, Public Order and Safety,

National Defense and Security, Information and Communications Technology, and Suffrage and Electoral Reforms (respondent House Committees). During the inquiry, several versions of the wiretapped conversation emerged. But on July 5, 2005, National Bureau of Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the supposed three-hour taped conversation. After prolonged and impassioned debate by the committee members on the admissibility and authenticity of the recordings, the tapes were eventually played in the chambers of the House.2 On August 3, 2005, the respondent House Committees decided to suspend the hearings indefinitely. Nevertheless, they decided to prepare committee reports based on the said recordings and the testimonies of the resource persons.3 Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this Court a Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction4docketed as G.R. No. 170338. He prayed that the respondent House Committees be restrained from using these tape recordings of the "illegally obtained" wiretapped conversations in their committee reports and for any other purpose. He further implored that the said recordings and any reference thereto be ordered stricken off the records of the inquiry, and the respondent House Committees directed to desist from further using the recordings in any of the House proceedings.5 Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly stopped. After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue with a privilege speech, "The Lighthouse That Brought Darkness." In his discourse, Senator Lacson promised to provide the public "the whole unvarnished truth the whats, whens, wheres, whos and whys" of the alleged wiretap, and sought an inquiry into the perceived willingness of telecommunications providers to participate in nefarious wiretapping activities. On motion of Senator Francis Pangilinan, Senator Lacsons speech was referred to the Senate Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who had previously filed two bills6 seeking to regulate the sale, purchase and use of wiretapping equipment and to prohibit the Armed Forces of the Philippines (AFP) from performing electoral duties.7 In the Senates plenary session the following day, a lengthy debate ensued when Senator Richard Gordon aired his concern on the possible transgression of Republic Act (R.A.) No. 42008 if the body were to conduct a legislative inquiry on the matter. On August 28, 2007, Senator Miriam DefensorSantiago delivered a privilege speech, articulating her considered view that the Constitution absolutely bans the use, possession, replay or communication of the contents of the "Hello Garci" tapes. However, she recommended a legislative investigation into the role of the Intelligence Service of the AFP (ISAFP), the Philippine National Police or other government entities in the alleged illegal wiretapping of public officials.9 On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction,10 docketed as G.R. No. 179275, seeking to bar the Senate from conducting its scheduled legislative inquiry. They argued in the main that the intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the Constitution.11

As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings on the "Hello Garci" tapes on September 7,12 1713 and October 1,14 2007. Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C. Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F. Trillanes filed their Comment16 on the petition on September 25, 2007. The Court subsequently heard the case on oral argument.17 On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the resource persons summoned by the Senate to appear and testify at its hearings, moved to intervene as petitioner in G.R. No. 179275.18 On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275.19 It may be noted that while both petitions involve the "Hello Garci" recordings, they have different objectivesthe first is poised at preventing the playing of the tapes in the House and their subsequent inclusion in the committee reports, and the second seeks to prohibit and stop the conduct of the Senate inquiry on the wiretapped conversation. The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No. 179275. -IBefore delving into the merits of the case, the Court shall first resolve the issue on the parties standing, argued at length in their pleadings. In Tolentino v. COMELEC,20 we explained that "[l]egal standing or locus standi refers to a personal and substantial interest in a case such that the party has sustained or will sustain direct injury because of the challenged governmental act x x x," thus, generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action.21 The gist of the question of standing is whether a party has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."22 However, considering that locus standi is a mere procedural technicality, the Court, in recent cases, has relaxed the stringent direct injury test. David v. Macapagal-Arroyo23 articulates that a "liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings."24 The fairly recent Chavez v. Gonzales25 even permitted a non-member of the broadcast media, who failed to allege a personal stake in the outcome of the controversy, to challenge the acts of the Secretary of Justice and the National Telecommunications Commission. The majority, in the said case, echoed the current policy that "this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest, in keeping with the Courts duty under the 1987 Constitution to determine whether

or not other branches of government have kept themselves within the limits of the Constitution and the laws, and that they have not abused the discretion given to them."26 In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by alleging that he is the person alluded to in the "Hello Garci" tapes. Further, his was publicly identified by the members of the respondent committees as one of the voices in the recordings.27 Obviously, therefore, petitioner Garcillano stands to be directly injured by the House committees actions and charges of electoral fraud. The Court recognizes his standing to institute the petition for prohibition. In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that they are concerned citizens, taxpayers, and members of the IBP. They are of the firm conviction that any attempt to use the "Hello Garci" tapes will further divide the country. They wish to see the legal and proper use of public funds that will necessarily be defrayed in the ensuing public hearings. They are worried by the continuous violation of the laws and individual rights, and the blatant attempt to abuse constitutional processes through the conduct of legislative inquiries purportedly in aid of legislation.28 Intervenor Sagge alleges violation of his right to due process considering that he is summoned to attend the Senate hearings without being apprised not only of his rights therein through the publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation, but also of the intended legislation which underpins the investigation. He further intervenes as a taxpayer bewailing the useless and wasteful expenditure of public funds involved in the conduct of the questioned hearings.29 Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and that intervenor Sagge asserts his constitutional right to due process,30 they satisfy the requisite personal stake in the outcome of the controversy by merely being citizens of the Republic. Following the Courts ruling in Francisco, Jr. v. The House of Representatives,31 we find sufficient petitioners Ranadas and Agcaoilis and intervenor Sagges allegation that the continuous conduct by the Senate of the questioned legislative inquiry will necessarily involve the expenditure of public funds.32 It should be noted that inFrancisco, rights personal to then Chief Justice Hilario G. Davide, Jr. had been injured by the alleged unconstitutional acts of the House of Representatives, yet the Court granted standing to the petitioners therein for, as in this case, they invariably invoked the vindication of their own rightsas taxpayers, members of Congress, citizens, individually or in a class suit, and members of the bar and of the legal professionwhich were also supposedly violated by the therein assailed unconstitutional acts.33 Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and intervenor Sagge advance constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. The issues are of transcendental and paramount importance not only to the public but also to the Bench and the Bar, and should be resolved for the guidance of all.34 Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in prior cases climaxing in the more recent case of Chavez, the Court recognizes the legal standing of petitioners Ranada and Agcaoili and intervenor Sagge. - II The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly stressed in our prior decisions is the principle that the exercise by this Court of judicial power is limited to the determination and resolution of actual cases and controversies.35 By actual cases, we mean existing

conflicts appropriate or ripe for judicial determination, not conjectural or anticipatory, for otherwise the decision of the Court will amount to an advisory opinion. The power of judicial inquiry does not extend to hypothetical questions because any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.36 Neither will the Court determine a moot question in a case in which no practical relief can be granted. A case becomes moot when its purpose has become stale.37 It is unnecessary to indulge in academic discussion of a case presenting a moot question as a judgment thereon cannot have any practical legal effect or, in the nature of things, cannot be enforced.38 In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the issuance of an injunctive writ to prohibit the respondent House Committees from playing the tape recordings and from including the same in their committee report. He likewise prays that the said tapes be stricken off the records of the House proceedings. But the Court notes that the recordings were already played in the House and heard by its members.39 There is also the widely publicized fact that the committee reports on the "Hello Garci" inquiry were completed and submitted to the House in plenary by the respondent committees.40 Having been overtaken by these events, the Garcillano petition has to be dismissed for being moot and academic. After all, prohibition is a preventive remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an act already accomplished.41 - III As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to continue with the conduct of the questioned legislative inquiry without duly published rules of procedure, in clear derogation of the constitutional requirement. Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he 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 requisite of publication of the rules is intended to satisfy the basic requirements of due process.42 Publication is indeed imperative, for it will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or rule of which he had no notice whatsoever, not even a constructive one.43 What constitutes publication is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after 15 days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines."44 The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in newspapers of general circulation only in 1995 and in 2006.45 With respect to the present Senate of the 14th Congress, however, of which the term of half of its members commenced on June 30, 2007, no effort was undertaken for the publication of these rules when they first opened their session. Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on Accountability of Public Officers and Investigations,46 we said: Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure." We quote the OSGs explanation: The phrase "duly published rules of procedure" requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation

because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senates membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm. Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the following rationalization: The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a quorum to do business." Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of twelve Senators.47 The subject was explained with greater lucidity in our Resolution48 (On the Motion for Reconsideration) in the same case, viz.: On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is "continuing," as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business the Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states: RULE XLIV UNFINISHED BUSINESS SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status. All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present for the first time. Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senates main rules of procedure) states: RULE LI AMENDMENTS TO, OR REVISIONS OF, THE RULES SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision. The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval. RULE LII DATE OF TAKING EFFECT SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators shall begin their term. However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from theRules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation." The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished business. The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice. If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity. Respondents justify their non-observance of the constitutionally mandated publication by arguing that the rules have never been amended since 1995 and, despite that, they are published in booklet form available to anyone for free, and accessible to the public at the Senates internet web page.49

The Court does not agree. The absence of any amendment to the rules cannot justify the Senates defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution. The organic law instructs, without more, that the Senate or its committees may conduct inquiries in aid of legislation only in accordance with duly published rules of procedure, and does not make any distinction whether or not these rules have undergone amendments or revision. The constitutional mandate to publish the said rules prevails over any custom, practice or tradition followed by the Senate. Justice Carpios response to the same argument raised by the respondents is illuminating: The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Taada v. Tuvera ruling which requires publication either in the Official Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules "shall take effect seven (7) days after publication in two (2) newspapers of general circulation," precluding any other form of publication. Publication in accordance with Taada is mandatory to comply with the due process requirement because the Rules of Procedure put a persons liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate. The invocation by the respondents of the provisions of R.A. No. 8792,50 otherwise known as the Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as the functional equivalent of a written document only for evidentiary purposes.51 In other words, the law merely recognizes the admissibility in evidence (for their being the original) of electronic data messages and/or electronic documents.52 It does not make the internet a medium for publishing laws, rules and regulations. Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases. The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have caused the publication of the rules, because it can do so only "in accordance with its duly published rules of procedure." Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya. While we take judicial notice of this fact, the recent publication does not cure the infirmity of the inquiry sought to be prohibited by the instant petitions. Insofar as the consolidated cases are concerned, the legislative investigation subject thereof still could not be undertaken by the respondent Senate Committees, because no published rules governed it, in clear contravention of the Constitution. With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues raised in the consolidated petitions. WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No. 179275 is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the Republic of the Philippines and/or any of its committees from conducting any inquiry in aid of legislation centered on the "Hello Garci" tapes. SO ORDERED.
Dela Paz vs Senate Committee on Foreign Relations

SPOUSES PNP DIRECTOR ELISEO D. DELA PAZ (Ret.) and MARIA FE C. DELA PAZ, Petitioners, vs. SENATE COMMITTEE ON FOREIGN RELATIONS and the SENATE SERGEANT-AT-ARMS JOSE BALAJADIA, JR., Respondents. RESOLUTION NACHURA, J.: This is a Petition for Certiorari and Prohibition1 under Rule 65 of the Rules of Court filed on October 28, 2008 by petitioners-spouses General (Ret.) Eliseo D. dela Paz (Gen. Dela Paz) and Mrs. Maria Fe C. dela Paz (Mrs. Dela Paz) assailing, allegedly for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction, the orders of respondent Senate Foreign Relations Committee (respondent Committee), through its Chairperson, Senator Miriam DefensorSantiago (Senator Santiago), (1) denying petitioners Challenge to Jurisdiction with Motion to Quash Subpoenae and (2) commanding respondent Senate Sergeant-at-Arms Jose Balajadia, Jr. (Balajadia) to immediately arrest petitioners during the Senate committee hearing last October 23, 2008. The petition thus prays that respondent Committee be enjoined from conducting its hearings involving petitioners, and to enjoin Balajadia from implementing the verbal arrest order against them. The antecedents are as follow On October 6, 2008, a Philippine delegation of eight (8) senior Philippine National Police (PNP) officers arrived in Moscow, Russia to attend the 77th General Assembly Session of the International Criminal Police Organization (ICPO)-INTERPOL in St. Petersburg from October 6-10, 2008. With the delegation was Gen. Dela Paz, then comptroller and special disbursing officer of the PNP. Gen. Dela Paz, however, was to retire from the PNP on October 9, 2008. On October 11, 2008, Gen. Dela Paz was apprehended by the local authorities at the Moscow airport departure area for failure to declare in written form the 105,000 euros [approximately P6,930,000.00] found in his luggage. In addition, he was also found to have in his possession 45,000 euros (roughly equivalent to P2,970,000.00). Petitioners were detained in Moscow for questioning. After a few days, Gen. Dela Paz and the PNP delegation were allowed to return to the Philippines, but the Russian government confiscated the euros. On October 21, 2008, Gen. Dela Paz arrived in Manila, a few days after Mrs. Dela Paz. Awaiting them were subpoenae earlier issued by respondent Committee for the investigation it was to conduct on the Moscow incident on October 23, 2008.

On October 23, 2008, respondent Committee held its first hearing. Instead of attending the hearing, petitioners filed with respondent Committee a pleading denominated Challenge to Jurisdiction with Motion to Quash Subpoena.2 Senator Santiago emphatically defended respondent Committees jurisdiction and commanded Balajadia to arrest petitioners. Hence, this Petition. Petitioners argue that respondent Committee is devoid of any jurisdiction to investigate the Moscow incident as the matter does not involve state to state relations as provided in paragraph 12, Section 13, Rule 10 of the Senate Rules of Procedure (Senate Rules). They further claim that respondent Committee violated the same Senate Rules when it issued the warrant of arrest without the required signatures of the majority of the members of respondent Committee. They likewise assail the very same Senate Rules because the same were not published as required by the Constitution, and thus, cannot be used as the basis of any investigation involving them relative to the Moscow incident. Respondent Committee filed its Comment3 on January 22, 2009. The petition must inevitably fail. First. Section 16(3), Article VI of the Philippine Constitution states: "Each House shall determine the rules of its proceedings." This provision has been traditionally construed as a grant of full discretionary authority to the Houses of Congress in the formulation, adoption and promulgation of its own rules. As such, the exercise of this power is generally exempt from judicial supervision and interference, except on a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process.4 The challenge to the jurisdiction of the Senate Foreign Relations Committee, raised by petitioner in the case at bench, in effect, asks this Court to inquire into a matter that is within the full discretion of the Senate. The issue partakes of the nature of a political question that, in Taada v. Cuenco,5 was characterized as a question which, under the Constitution, is to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. Further, pursuant to this constitutional grant of virtually unrestricted authority to determine its own rules, the Senate is at liberty to alter or modify these rules at any time it may see fit, subject only to the imperatives of quorum, voting and publication. Thus, it is not for this Court to intervene in what is clearly a question of policy, an issue dependent upon the wisdom, not the legality, of the Senates action. Second. Even if it is within our power to inquire into the validity of the exercise of jurisdiction over the petitioners by the Senate Foreign Relations Committee, we are convinced that respondent Committee has acted within the proper sphere of its authority.
lawphil.net
Paragraph 12, Section 13, Rule 10 of the Senate Rules provides: 12) Committee on Foreign Relations. Fifteen (15) members. All matters relating to the relations of the Philippines with other nations generally; diplomatic and consular services; the Association of Southeast Asian Nations; the United Nations Organization and its agencies; multi-lateral organizations, all international agreements, obligations and contracts; and overseas Filipinos.

A reading of the above provision unmistakably shows that the investigation of the Moscow incident involving petitioners is well within the respondent Committees jurisdiction. The Moscow incident could create ripples in the relations between the Philippines and Russia. Gen. Dela Paz went to Moscow in an official capacity, as a member of the Philippine delegation to the INTERPOL Conference in St. Petersburg, carrying a huge amount of "public" money ostensibly to cover the expenses to be incurred by the delegation. For his failure to comply with immigration and currency laws, the Russian government confiscated the money in his possession and detained him and other members of the delegation in Moscow. Furthermore, the matter affects Philippine international obligations. We take judicial notice of the fact that the Philippines is a state-party to the United Nations Convention Against Corruption and the United Nations Convention Against Transnational Organized Crime. The two conventions contain provisions dealing with the movement of considerable foreign currency across borders.6 The Moscow incident would reflect on our countrys compliance with the obligations required of state-parties under these conventions. Thus, the respondent Committee can properly inquire into this matter, particularly as to the source and purpose of the funds discovered in Moscow as this would involve the Philippines commitments under these conventions. Third. The Philippine Senate has decided that the legislative inquiry will be jointly conducted by the respondent Committee and the Senate Committee on Accountability of Public Officers and Investigations (Blue Ribbon Committee). Pursuant to paragraph 36, Section 13, Rule 10 of the Senate Rules, the Blue Ribbon Committee may conduct investigations on all matters relating to malfeasance, misfeasance and nonfeasance in office by officers and employees of the government, its branches, agencies, subdivisions and instrumentalities, and on any matter of public interest on its own initiative or brought to its attention by any of its members. It is, thus, beyond cavil that the Blue Ribbon Committee can investigate Gen. Dela Paz, a retired PNP general and member of the official PNP delegation to the INTERPOL Conference in Russia, who had with him millions which may have been sourced from public funds. Fourth. Subsequent to Senator Santiagos verbal command to Balajadia to arrest petitioners, the Philippine Senate issued a formal written Order7 of arrest, signed by ten (10) senators, with the Senate President himself approving it, in accordance with the Senate Rules. Fifth. The Philippine Senate has already published its Rules of Procedure Governing Inquiries in Aid of Legislation in two newspapers of general circulation.8 Sixth. The arrest order issued against the petitioners has been rendered ineffectual. In the legislative inquiry held on November 15, 2008, jointly by the respondent Committee and the Senate Blue Ribbon Committee, Gen. Dela Paz voluntarily appeared and answered the questions propounded by the Committee members. Having submitted himself to the jurisdiction of the Senate Committees, there was no longer any necessity to implement the order of arrest. Furthermore, in the same hearing, Senator Santiago granted the motion of Gen. Dela Paz to dispense with the presence of Mrs. Dela Paz for humanitarian considerations.9 Consequently, the order for her arrest was effectively withdrawn. WHEREFORE, the petition is DISMISSED for lack of merit and for being moot and academic. SO ORDERED.
Standard Chartered Bank vs. Senate Committee on Banks
EN BANC
STANDARD CHARTERED BANK (Philippine Branch), PAUL SIMON MORRIS, SUNDARA RAMESH, OWEN BELMAN, SANJAY AGGARWAL, RAJAMANI CHANDRASHEKAR, MARIVEL GONZALES, MA. ELLEN VICTOR, CHONA G. REYES, ZENAIDA IGLESIAS, RAMONA BERNAD, MICHAELANGELO AGUILAR, and FERNAND TANSINGCO, Petitioners,
G.R. No. 167173
Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, and LEONARDO-DE CASTRO,JJ. Promulgated:
- versus -
SENATE COMMITTEE ON BANKS, FINANCIAL INSTITUTIONS AND CURRENCIES, as represented by its Chairperson, HON. EDGARDO J. ANGARA, Respondent.
December 27, 2007
x-----------------------------------------------------------------------------------------x
DECISION NACHURA, J.:
Before us is a Petition for Prohibition (With Prayer for Issuance of Temporary Restraining Order and/or Injunction) dated and filed on March 11, 2005 by petitioners against respondent Senate Committee on Banks, Financial Institutions and Currencies, as represented by its Chairperson Edgardo J. Angara (respondent). Petitioner Standard Chartered Bank (SCB)-Philippines is an institution incorporated in England with limited liability and is licensed to engage in banking, trust, and other related operations in the Philippines. Petitioners Paul Simon Morris, Sundara Ramesh, Owen Belman, Sanjay Aggarwal, Rajamani Chandrashekar, Marivel Gonzales, Ma. Ellen Victor, Chona G. Reyes, Zenaida Iglesias, Ramona Bernad, Michaelangelo Aguilar, and Fernand Tansingco are the Chief Executive Officer, Chief Operations Officer, Country Head of Consumer Banking, General Manager for Credit Card and Personal Loans, Chief Financial Officer, Legal and Compliance Officer, former Trust and Investment Services Head, Country Tax Officer, Head of Corporate Affairs, Head of Banking Services, Head of Client Relationships, and the Head of Global Markets of SCB-Philippines, respectively. Respondent, on the other hand, is one of the permanent committees of the Senate of the Philippines.
The petition seeks the issuance of a temporary restraining order (TRO) to enjoin respondent from (1) proceeding with its inquiry pursuant to Philippine Senate (P.S.) Resolution No. 166; (2) compelling petitioners who are officers of petitioner SCB-Philippines to attend and testify before any further hearing to be conducted by respondent, particularly that set on March 15, 2005; and (3) enforcing any hold-departure order (HDO) and/or putting the petitioners on the Watch List. It also prays that judgment be rendered (1) annulling the subpoenae ad testificandum and duces tecum issued to petitioners, and (2) prohibiting the respondent from compelling petitioners to appear and testify in the inquiry being conducted pursuant to P.S. Resolution No. 166. The facts are as follows: On February 1, 2005, Senator Juan Ponce Enrile, Vice Chairperson of respondent, delivered a privilege speech entitledArrogance of Wealth[1] before the Senate based on a letter from Atty. Mark R. Bocobo denouncing SCBPhilippines for selling unregistered foreign securities in violation of the Securities Regulation Code (R.A. No. 8799) and urging the Senate to immediately conduct an inquiry, in aid of legislation, to prevent the occurrence of a similar fraudulent activity in the future. Upon motion of Senator Francis Pangilinan, the speech was referred to respondent. Prior to the privilege speech, Senator Enrile had introduced P.S. Resolution No. 166,[2] to wit:
RESOLUTION
DIRECTING THE COMMITTEE ON BANKS, FINANCIAL INSTITUTIONS AND CURRENCIES, TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, INTO THE ILLEGAL SALE OF UNREGISTERED AND HIGH-RISK SECURITIES BY STANDARD CHARTERED BANK, WHICH RESULTED IN BILLIONS OF PESOS OF LOSSES TO THE INVESTING PUBLIC WHEREAS, Republic Act No. 7721, otherwise known as the "Law Liberalizing the Entry and Scope of Operations of Foreign Banks in the Philippines, was approved on May 18, 1994 to promote greater participation of foreign banks in the Philippine
Standard Chartered Bank vs. Senate Committee on Banks Banking Industry that will stimulate economic growth and serve as a channel for the flow of funds into the economy; WHEREAS, to promote greater competition in the Philippine Banking Industry, foreign banks were accorded the same privileges, allowed to perform the same functions and subjected to the same limitations under relevant banking laws imposed upon domestic banks; WHEREAS, Standard Chartered Bank was among the foreign banks granted the privilege to do business in our country under Republic Act No. 7721; WHEREAS, there are complaints against Standard Chartered Bank whose actions have reportedly defrauded hundreds of Filipino investors of billions of pesos through the sale of unregistered securities in the form of high-risk mutual funds falsely advertised and marketed as safe investment havens; WHEREAS, there are reports that Standard Chartered Bank clearly knew that its actions were violative of Philippine banking and securities laws but cleverly disguised its illegal acts through the use of pro-forma agreements containing waivers of liability in favor of the bank; WHEREAS, there are reports that in the early stages of conducting these questionable activities, the Bangko Sentral ng Pilipinas warned and eventually fined Standard Chartered Bank a measly P30,000 for violating Philippine banking laws; WHEREAS, the particular operations of Standard Chartered Bank may constitute "conducting business in an unsafe and unsound manner, punishable under Section 37 of Republic Act No. 7653 and should have drawn the higher penalty of revocation of its quasi-banking license; WHEREAS, Republic Act No. 8791 or the "General Banking Act of 2000" deems a particular act or omission as conducting business in an unsafe and unsound manner as follows: "Section 56.2 The act or omission has resulted or may result in material loss or damage or abnormal risk to the institution's depositors, creditors, investors, stockholders or to the Bangko Sentral or to the public in general." WHEREAS, the sale of unregistered securities is also a clear violation of Republic Act No. 8799 or "The Securities Regulation Code of 2000" which states:
Standard Chartered Bank vs. Senate Committee on Banks "Section 8.1 Securities shall not be sold or offered for sale or distribution within the Philippines, without a registration statement duly filed with and approved by the Commission. Prior to such sale, information on the securities, in such form and with such substance as the Commission may prescribe, shall be made available to each prospective purchaser." WHEREAS, the Securities and Exchange Commission (SEC) reportedly issued a Cease-and-Desist Order (CDO) against Standard Chartered Bank for the sale of these unregistered securities but the case was reportedly settled administratively and dismissed after Standard Chartered Bank paid a fine of P7 Million; WHEREAS, the SEC reportedly made an official finding that Standard Chartered Bank actively engaged in promoting and marketing the so-called "Global Third Party Mutual Funds to the investing public and even set revenue quotas for the sale of these funds; WHEREAS, existing laws including the Securities Regulation Code seem to be inadequate in preventing the sale of unregistered securities and in effectively enforcing the registration rules intended to protect the investing public from fraudulent practices; WHEREAS, the regulatory intervention by the SEC and BSP likewise appears inadequate in preventing the conduct of proscribed activities in a manner that would protect the investing public; WHEREAS, there is a need for remedial legislation to address the situation, having in mind the imposition of proportionate penalties to offending entities and their directors, officers and representatives among other additional regulatory measures; Now, therefore, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, to direct the Committee on Banks, Currencies, and Financial Institutions, to conduct an inquiry, in aid of legislation, into the reported sale of unregistered and high-risk securities by Standard Chartered Bank which resulted in billions of losses to the investing public.
Acting on the referral, respondent, through its Chairperson, Senator Edgardo J. Angara, set the initial hearing on February 28, 2005 to investigate, in aid of legislation, the subject matter of the speech and resolution filed by Senator Enrile.
Respondent invited petitioners, among others, to attend the hearing, requesting them to submit their written position paper. Petitioners, through counsel, submitted to respondent a letter[3] dated February 24, 2005 presenting their position, particularly stressing that there were cases pending in court allegedly involving the same issues subject of the legislative inquiry, thereby posing a challenge to the jurisdiction of respondent to continue with the inquiry. On February 28, 2005, respondent commenced the investigation. Senator Enrile inquired who among those invited as resource persons were present and who were absent. Thereafter, Senator Enrile moved that subpoenae be issued to those who did not attend the hearing and that the Senate request the Department of Justice, through the Bureau of Immigration and Deportation, to issue an HDO against them and/or include them in the Bureaus Watch List. Senator Juan Flavier seconded the motion and the motion was approved. Respondent then proceeded with the investigation proper. Towards the end of the hearing, petitioners, through counsel, made an Opening Statement[4] that brought to the attention of respondent the lack of proper authorization from affected clients for the bank to make disclosures of their accounts and the lack of copies of the accusing documents mentioned in Senator Enrile's privilege speech, and reiterated that there were pending court cases regarding the alleged sale in the Philippines by SCB-Philippines of unregistered foreign securities. The February 28, 2005 hearing was adjourned without the setting of the next hearing date. However, petitioners were later served by respondent with subpoenae ad testificandum and duces tecum to compel them to attend and testify at the hearing set onMarch 15, 2005. Hence, this petition. The grounds relied upon by petitioners are as follows:
I. THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN CONDUCTING AN INVESTIGATION, PURPORTEDLY IN AID OF LEGISLATION, BUT IN REALITY PROBING INTO THE ISSUE OF WHETHER THE STANDARD CHARTERED BANK HAD SOLD UNREGISTERED FOREIGN SECURITIES IN THE PHILIPPINES. SAID ISSUE HAS LONG BEEN THE SUBJECT OF CRIMINAL AND CIVIL ACTIONS NOW PENDING BEFORE THE COURT OF APPEALS, REGIONAL TRIAL COURT OF PASIG CITY, METROPOLITANTRIAL COURT OF MAK ATI CITY AND THE PROSECUTOR'S OFFICE OF MAKATI CITY. II. THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION BY CONDUCTING AN INVESTIGATION, PURPORTEDLY IN AID OF LEGISLATION, BUT IN REALITY IN AID OF COLLECTION BY A HANDFUL OF TWO (2) CLIENTS OF STANDARD CHARTERED BANK OF LOSSES WHICH WERE FOR THEIR ACCOUNT AND RISK. AT ANY RATE, SUCH COLLECTION IS WITHIN THE PROVINCE OF THE COURT RATHER THAN OF THE LEGISLATURE. III. THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN COMPELLING PETITIONERS, SOME OF WHOM ARE RESPONDENTS IN THE PENDING CRIMINAL AND CIVIL ACTIONS BROUGHT BY SAID CLIENTS, IN VIOLATION OF PETITIONERS RIGHT AGAINST SELF-INCRIMINATION AND RIGHT TO PURSUE AND DEFEND THEIR CAUSE IN COURT RATHER THAN ENGAGE IN TRIAL BY PUBLICITY A CLEAR VIOLATION OF DUE PROCESS, RIGHT TO PRIVACY AND TO TRAVEL. IV. THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION BY DISREGARDING ITS OWN RULES.[5]
Petitioners argue that respondent has no jurisdiction to conduct the inquiry because its subject matter is the very same subject matter of the following cases, to wit:
(a) CA-G.R. SP No. 85078, entitled Manuel V. Baviera vs. Hon. Esperanza P. Rosario, et al., pending before the 9th Division of the Court of Appeals. In the petition, Mr. Baviera seeks to annul and set aside the dismissal by the Department of Justice of his complaint against Standard Chartered Bank and its officers accusing them of SELLING UNREGISTERED FOREIGN SECURITIES IN VIOLATION OF P.D. NO. 1869 (SYNDICATED ESTAFA) AND ARTICLE 315 OF THE REVISED PENAL CODE. (b) CA-G.R. SP No. 86200, entitled Manuel V. Baviera vs. Hon. Rafael Buenaventura, et al., pending before the 15th Division of the Court of Appeals. In the petition, Mr. Baviera seeks to annul and set aside the termination for lack of probable cause by the Anti-Money Laundering Council (AMLC) of the investigation of Standard Chartered Bank for money laundering activities BY SELLING UNREGISTERED FOREIGN SECURITIES. (c) CA-G.R. SP No. 87328, entitled Manuel V. Baviera vs. Hon. Esperanza Paglinawan Rozario, et al., pending before the 16th Division of the Court of Appeals. The petition seeks to annul and set aside the dismissal by the Department of Justice of Mr. Baviera's complaint accusing SCB and its officers of violation of the Securities Regulation Code by SELLING UNREGISTERED FOREIGN SECURITIES. (d) Civil Case No. 70173, entitled Mr. Noel G. Sanchez, et al. vs. Standard Chartered Bank, pending before Branch 155 of the Regional TrialCourt of Pasig City. Plaintiff seeks damages and recovery of their investment accusing the bank of SELLING UNREGISTERED FOREIGN SECURITIES. (e) Criminal Case No. 332034, entitled People of the Philippines vs. Manuel V. Baviera, pending before Branch 64 of the Metropolitan TrialCourt of Makati City. Petitioner Morris is the private complainant in this information for extortion or blackmail against Mr. Baviera for demanding the payment of US$2 Million with the threat to EXPOSE THE BANK'S LARGE SCALE SCAM CONSISTING [OF] ILLEGAL SELLING OF UNREGISTERED FOREIGN SECURITIES BY THE BANK, before various government offices, such as the Department of Justice, the BIR, Bangko Sentral ng Pilipinas, Regional Trial Courts, and both houses of Congress. (f) Criminal Case No. 331395, entitled People of the Philippines vs. Manuel V. Baviera, pending before Branch 64 of the Metropolitan TrialCourt of Makati City. Petitioners Victor and Chona Reyes are the private complainants in this information for perjury committed by Mr. Baviera in securing a hold departure order against the petitioners herein from the Department of Justice for their alleged involvement in syndicated estafa and swindling BY SELLING UNREGISTERED FOREIGN SECURITIES.
(g) I.S. No. 2004-B-2279-80, entitled Aurelio Litonjua III and Aurelio Litonjua, Jr. vs. Antonette de los Reyes, et al., pending before the Office of the Prosecutor, Makati City. This is a criminal complaint accusing SCB and its officers of estafa for SELLING UNREGISTERED FOREIGN SECURITIES.[6]
Citing Bengzon, Jr. v. Senate Blue Ribbon Committee,[7] the petitioners claim that since the issue of whether or not SCB-Philippines illegally sold unregistered foreign securities is already preempted by the courts that took cognizance of the foregoing cases, the respondent, by this investigation, would encroach upon the judicial powers vested solely in these courts. The argument is misplaced. Bengzon does not apply squarely to petitioners case. It is true that in Bengzon, the Court declared that the issue to be investigated was one over which jurisdiction had already been acquired by the Sandiganbayan, and to allow the [Senate Blue Ribbon] Committee to investigate the matter would create the possibility of conflicting judgments; and that the inquiry into the same justiciable controversy would be an encroachment on the exclusive domain of judicial jurisdiction that had set in much earlier. To the extent that, in the case at bench, there are a number of cases already pending in various courts and administrative bodies involving the petitioners, relative to the alleged sale of unregistered foreign securities, there is a resemblance between this case and Bengzon. However, the similarity ends there. Central to the Courts ruling in Bengzon -- that the Senate Blue Ribbon Committee was without any constitutional mooring to conduct the legislative investigation -- was the Courts determination that the intended inquiry was not in aid of legislation. The Court found that the speech of Senator Enrile,
which sought such investigation contained no suggestion of any contemplated legislation; it merely called upon the Senate to look into possible violations of Section 5, Republic Act No. 3019. Thus, the Court held that the requested probe failed to comply with a fundamental requirement of Section 21, Article VI of the Constitution, which states:
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.
Accordingly, we stopped the Senate Blue Ribbon Committee from proceeding with the legislative investigation in that case. Unfortunately for the petitioners, this distinguishing factual milieu in Bengzon does not obtain in the instant case. P.S. Resolution No. 166 is explicit on the subject and nature of the inquiry to be (and already being) conducted by the respondent Committee, as found in the last three Whereas clauses thereof, viz.:
WHEREAS, existing laws including the Securities Regulation Code seem to be inadequate in preventing the sale of unregistered securities and in effectively enforcing the registration rules intended to protect the investing public from fraudulent practices; WHEREAS, the regulatory intervention by the SEC and BSP likewise appears inadequate in preventing the conduct of proscribed activities in a manner that would protect the investing public; WHEREAS, there is a need for remedial legislation to address the situation, having in mind the imposition of proportionate penalties to offending entities and their directors, officers and representatives among other additional regulatory measures; (emphasis supplied)
The unmistakable objective of the investigation, as set forth in the said resolution, exposes the error in petitioners allegation that the inquiry, as initiated in a privilege speech by the very same Senator Enrile, was simply to denounce the illegal practice committed by a foreign bank in selling unregistered foreign securities x x x. This fallacy is made more glaring when we consider that, at the conclusion of his privilege speech, Senator Enrile urged the Senate to immediately conduct an inquiry, in aid of legislation, so as to prevent the occurrence of a similar fraudulent activity in the future. Indeed, the mere filing of a criminal or an administrative complaint before a court or a quasi-judicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint. Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or an administrative investigation. As succinctly stated in the landmark case Arnault v. Nazareno[8]
[T]he 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 possess it.
Neither can the petitioners claim that they were singled out by the respondent Committee. The Court notes that among those invited as resource persons were officials of the Securities and Exchange Commission (SEC) and the Bangko Sentral ng Pilipinas (BSP). These officials were subjected to the same critical scrutiny by the respondent relative to their separate findings on the illegal
sale of unregistered foreign securities by SCB-Philippines. It is obvious that the objective of the investigation was the quest for remedies, in terms of legislation, to prevent the recurrence of the allegedly fraudulent activity. Still, petitioners insist that the inquiry conducted by respondent was, in fact, in aid of collection. They claim that Atty. Bocobo and Manuel Baviera, the latter a party to the pending court cases cited by petitioners, were only seeking a friendly forum so that they could recover their investments from SCB-Philippines; and that the respondent has allowed itself to be used as the conveniently available vehicle to effect this purpose. However, as correctly pointed out by respondent in its Comment on the petition, Atty. Bocobo did not file a complaint before the Senate for the purpose of recovering his investment. On the contrary, and as confirmed during the initial hearing on February 28, 2005, his letter-complaint humbly requested the Senate to conduct an inquiry into the purportedly illegal activities of SCB-Philippines, with the end view of preventing the future occurrence of any similar fraudulent activity by the banks in general.[9] Baviera, on the other hand, was not a complainant but merely a witness in the investigation, invited to testify on the alleged illegal sale of unregistered foreign securities by SCB-Philippines, being one of the supposed victims thereof. The Court further notes that when it denied petitioners prayer for the issuance of a TRO to restrain the hearing set on March 15, 2005,[10] respondent proceeded with the investigation. On the said date, outraged by petitioners imputation that it was conducting the investigation in aid of collection, respondent held petitioners, together with their counsel, Atty. Reynaldo Geronimo, in contempt and ordered their detention for six hours.
Petitioners filed a Motion for Partial Reconsideration of this Courts Resolution dated March 14, 2005 only with respect to the denial of the prayer for the issuance of a TRO and/or writ of preliminary injunction, alleging that their being held in contempt was without legal basis, as the phrase in aid of collection partakes of an absolutely privileged allegation in the petition. We do not agree. The Court has already expounded on the essence of the contempt power of Congress and its committees in this wise
The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each departments authority to be full and complete, independently of each others authority or power. And how could the authority and power become complete if for every act of refusal, every act of defiance, every act of contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with affronts committed against its authority or dignity.[11]
The exercise by Congress or by any of its committees of the power to punish contempt is based on the principle of self-preservation. As the branch of the government vested with the legislative power, independently of the judicial branch, it can assert its authority and punish contumacious acts against it. Such power is sui generis, as it attaches not to the discharge of legislative functions per se, but to the sovereign character of the legislature as one of the three independent and coordinate branches of government.[12] In this case, petitioners imputation that the investigation was in aid of collection is a direct challenge against the authority of the Senate Committee, as
it ascribes ill motive to the latter. In this light, we find the contempt citation against the petitioners reasonable and justified. Furthermore, it is axiomatic that the power of legislative investigation includes the power to compel the attendance of witnesses. Corollary to the power to compel the attendance of witnesses is the power to ensure that said witnesses would be available to testify in the legislative investigation. In the case at bench, considering that most of the officers of SCB-Philippines are not Filipino nationals who may easily evade the compulsive character of respondents summons by leaving the country, it was reasonable for the respondent to request the assistance of the Bureau of Immigration and Deportation to prevent said witnesses from evading the inquiry and defeating its purpose. In any event, no HDO was issued by a court. The BID instead included them only in the Watch List, which had the effect of merely delaying petitioners intended travel abroad for five (5) days, provided no HDO is issued against them.[13] With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is not an absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for the rights of persons affected by the legislative investigation, not every invocation of the right to privacy should be allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon,[14] we have held that the right of the people to access information on matters of public concern generally prevails over the right to privacy of ordinary financial transactions. In that case, we declared that the right to privacy is not absolute where there is an overriding compelling state interest. Employing the rational basis relationship test, as laid down in Morfe v. Mutuc,[15] there is no infringement of the individuals right to privacy as the requirement to disclosure information is for a valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to state
that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation.[16] As regards the issue of self-incrimination, the petitioners, officers of SCBPhilippines, are not being indicted as accused in a criminal proceeding. They were summoned by respondent merely as resource persons, or as witnesses, in a legislative inquiry. As distinguished by this Court
[An] accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all questions.[17]
Concededly, this right of the accused against self-incrimination is extended to respondents in administrative investigations that partake of the nature of or are analogous to criminal proceedings. The privilege has consistently been held to extend to all proceedings sanctioned by law; and to all cases in which punishment is sought to be visited upon a witness, whether a party or not.[18] However, in this case, petitioners neither stand as accused in a criminal case nor will they be subjected by the respondent to any penalty by reason of their testimonies. Hence, they cannot altogether decline appearing before respondent, although they may invoke the privilege when a question calling for an incriminating answer is propounded.[19] Petitioners argument, that the investigation before respondent may result in a recommendation for their prosecution by the appropriate government agencies, such as the Department of Justice or the Office of the Ombudsman, does not persuade.
As held in Sinclair v. United States[20] -It may be conceded that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through its Committees, to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits. x x x It is plain that investigation of the matters involved in suits brought or to be commenced under the Senate resolution directing the institution of suits for the cancellation of the leases might directly aid in respect of legislative action.
The prosecution of offenders by the prosecutorial agencies and the trial before the courts is for the punishment of persons who transgress the law. The intent of legislative inquiries, on the other hand, is to arrive at a policy determination, which may or may not be enacted into law. Except only when it exercises the power to punish for contempt, the respondent, as with the other Committees of the Senate or of the House of Representatives, cannot penalize violators even if there is overwhelming evidence of criminal culpability. Other than proposing or initiating amendatory or remedial legislation, respondent can only recommend measures to address or remedy whatever irregularities may be unearthed during the investigation, although it may include in its Report a recommendation for the criminal indictment of persons who may appear liable. At best, the recommendation, along with the evidence, contained in such a Report would be persuasive, but it is still up to the prosecutorial agencies and the courts to determine the liabilities of the offender. Finally, petitioners sought anew, in their Manifestation and Motion[21] dated June 21, 2006, the issuance by this Court of a TRO and/or writ of preliminary injunction to prevent respondent from submitting its Committee Report No. 75 to the Senate in plenary for approval. However, 16 days prior to the filing of the Manifestation and Motion, or on June 5, 2006, respondent had
already submitted the report to the Senate in plenary. While there is no showing that the said report has been approved by the Senate, the subject of the Manifestation and Motion has inescapably become moot and academic. WHEREFORE, the Petition for Prohibition is DENIED for lack of merit. The Manifestation and Motion dated June 21, 2006 is, likewise, DENIED for being moot and academic. SO ORDERED.
Romero II vs Estrada
REGHIS M. ROMERO II, EDMOND Q. SESE, LEOPOLDO T. SANCHEZ, REGHIS M. ROMERO III, MICHAEL L. ROMERO, NATHANIEL L. ROMERO, and JEROME R. CANLAS, Petitioners, vs. SENATOR JINGGOY E. ESTRADA and SENATE COMMITTEE ON LABOR, EMPLOYMENT AND HUMAN RESOURCES DEVELOPMENT,Respondents. DECISION VELASCO, JR., J.: At issue once again is Section 21, Article VI of the 1987 Constitution which provides: 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. The Case This is a petition for prohibition with application for temporary restraining order (TRO) and preliminary injunction under Rule 65, assailing the constitutionality of the invitations and other compulsory processes issued by the Senate Committee on Labor, Employment, and Human Resources Development (Committee) in connection with its investigation on the investment of Overseas Workers Welfare Administration (OWWA) funds in the Smokey Mountain project. The Facts On August 15, 2006, petitioner Reghis Romero II, as owner of R-II Builders, Inc., received from the Committee an invitation,1 signed by the Legislative Committee Secretary, which pertinently reads as follows: Dear Mr. Romero: Pursuant to P.S. Resolution No. 537, entitled: "RESOLUTION DIRECTING THE LABOR COMMITTEE TO INVESTIGATE, IN AID OF LEGISLATION, THE LIABILITY FOR PLUNDER OF THE FORMER PRESIDENT RAMOS AND OTHERS, FOR THE ILLEGAL INVESTMENT OF OWWA FUNDS IN THE SMOKEY MOUNTAIN PROJECT, CAUSING A LOSS TO OWWA OF P550.86 MILLION" and P.S. Resolution No. 543, entitled: "RESOLUTION DIRECTING THE COMMITTEE ON LABOR AND EMPLOYMENT, IN ITS ONGOING INQUIRY IN AID OF LEGISLATION, ON THE ALLEGED OWWA LOSS OF P480 MILLION TO FOCUS ON THE CULPABILITY OF THEN PRESIDENT FIDEL RAMOS, THEN OWWA ADMINISTRATOR WILHELM SORIANO, AND R-II BUILDERS OWNER REGHIS ROMERO II," x x x the Committee on Labor, Employment and Human Resources Development chaired by Sen. Jinggoy Ejercito Estrada will
conduct a public hearing at 1:00 p.m. on the 23rd day of August 2006 at the Sen. G.T. Pecson Room, 2nd floor, Senate of the Philippines, Pasay City. The inquiry/investigation is specifically intended to aid the Senate in the review and possible amendments to the pertinent provisions of R.A. 8042, "the Migrant Workers Act" and to craft a much needed legislation relative to the stated subject matter and purpose of the aforementioned Resolutions. By virtue of the power vested in Congress by Section 21, Article VI of 1987 Constitution regarding inquiries in aid of legislation, may we have the privilege of inviting you to the said hearing to shed light on any matter, within your knowledge and competence, covered by the subject matter and purpose of the inquiry. Rest assured that your rights, when properly invoked and not unfounded, will be duly respected. (Emphasis in the original.) In his letter-reply2 dated August 18, 2006, petitioner Romero II requested to be excused from appearing and testifying before the Committee at its scheduled hearings of the subject matter and purpose of Philippine Senate (PS) Resolution Nos. 537 and 543. He predicated his request on grounds he would later substantially reiterate in this petition for prohibition. On August 28, 2006, the Committee sent petitioner Romero II a letter informing him that his request, being unmeritorious, was denied.3 On the same date, invitations were sent to each of the other six petitioners, then members of the Board of Directors of R-II Builders, Inc., requesting them to attend the September 4, 2006 Committee hearing. The following day, Senator Jinggoy Estrada, as Chairperson of the Committee, caused the service of a subpoena ad testificandum4 on petitioner Romero II directing him to appear and testify before the Committee at its hearing on September 4, 2006 relative to the aforesaid Senate resolutions. The Committer later issued separate subpoenas5 to other petitioners, albeit for a different hearing date. On August 30, 2006, petitioners filed the instant petition, docketed as G.R. No. 174105, seeking to bar the Committee from continuing with its inquiry and to enjoin it from compelling petitioners to appear before it pursuant to the invitations thus issued. Failing to secure the desired TRO sought in the petition, petitioner Romero II appeared at the September 4, 2006 Committee investigation. Two days after, petitioner Romero II filed a Manifestation with Urgent Plea for a TRO6 alleging, among others, that: (1) he answered questions concerning the investments of OWWA funds in the Smokey Mountain project and how much of OWWAs original investment had already been paid; (2) when Senator Estrada called on Atty. Francisco I. Chavez, as resource person, the latter spoke of the facts and issues he raised with the Court in Chavez v. National Housing Authority,7 none of which were related to the subject of the inquiry; and (3) when Senator Estrada adjourned the investigation, he asked petitioners Romero II and Canlas to return at the resumption of the investigation. The manifestation was followed by the filing on September 19, 2006 of another urgent motion for a TRO in which petitioners imputed to the Committee the intention to harass them as, except for petitioner Romero II, none of them had even been mentioned in relation to the subject of the investigation. Meanwhile, respondents, in compliance with our September 5, 2006 Resolution that ordered them to submit a comment on the original plea for a TRO, interposed an opposition,8 observing that the Senates motives in calling for an investigation in aid of legislation were a political question. They
also averred that the pendency of Chavez "is not sufficient ground to divest the respondents of their jurisdiction to conduct an inquiry into the matters alleged in the petition." In this petition, petitioners in gist claim that: (1) the subject matter of the investigation is sub judice owing to the pendency of the Chavez petition; (2) since the investigation has been intended to ascertain petitioners criminal liability for plunder, it is not in aid of legislation; (3) the inquiry compelled them to appear and testify in violation of their rights against self-incrimination; and (4) unless the Court immediately issues a TRO, some or all of petitioners would be in danger of being arrested, detained, and forced to give testimony against their will, before the Court could resolve the issues raised in G.R. No. 164527. In their Comment dated October 17, 2006,9 respondents made a distinction between the issues raised in Chavez and the subject matter of the Senate resolutions, nixing the notion of sub judice that petitioners raised at every possible turn. Respondents averred that the subject matter of the investigation focused on the alleged dissipation of OWWA funds and the purpose of the probe was to aid the Senate determine the propriety of amending Republic Act No. 8042 or The Migrant Workers Act of 1995 and enacting laws to protect OWWA funds in the future. They likewise raised the following main arguments: (1) the proposed resolutions were a proper subject of legislative inquiry; and (2) petitioners right against self-incrimination was well-protected and could be invoked when incriminating questions were propounded. On December 28, 2006, petitioners filed their Reply10 reiterating the arguments stated in their petition, first and foremost of which is: Whether or not the subject matter of the Committees inquiry is sub judice. The Courts Ruling The Court resolves to dismiss the instant petition. The Subject Matter of the Senate Inquiry Is no Longer Sub Judice Petitioners contend that the subject matter of the legislative inquiry is sub judice in view of the Chavez petition. The sub judice rule restricts comments and disclosures pertaining to judicial proceedings to avoid prejudging the issue, influencing the court, or obstructing the administration of justice. A violation of the sub judice rule may render one liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court.11 The rationale for the rule adverted to is set out in Nestle Philippines v. Sanchez: [I]t is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies.12 Chavez, assuming for argument that it involves issues subject of the respondent Committees assailed investigation, is no longer sub judice or "before a court or judge for consideration."13 For by an en banc Resolution dated July 1, 2008, the Court, in G.R. No. 164527, denied with finality the motion of Chavez, as the petitioner in Chavez, for reconsideration of the Decision of the Court dated August 15, 2007. In fine, it will not avail petitioners any to invoke the sub judice effect of Chavez and resist, on that ground, the assailed congressional invitations and subpoenas. The sub judice issue has been rendered moot and academic by the supervening issuance of the en banc Resolution of July 1, 2008 in G.R. No. 164527. An issue or a case becomes moot and academic when it ceases to
present a justiciable controversy, so that a determination of the issue would be without practical use and value. In such cases, there is no actual substantial relief to which the petitioner would be entitled and which would be negated by the dismissal of the petition.14 Courts decline jurisdiction over such cases or dismiss them on the ground of mootness, save in certain exceptional instances,15 none of which, however, obtains under the premises. Thus, there is no more legal obstacleon the ground of sub judice, assuming it is invocableto the continuation of the Committees investigation challenged in this proceeding. At any rate, even assuming hypothetically that Chavez is still pending final adjudication by the Court, still, such circumstance would not bar the continuance of the committee investigation. What we said in Sabio v. Gordon suggests as much: The same directors and officers contend that the Senate is barred from inquiring into the same issues being litigated before the Court of Appeals and the Sandiganbayan. Suffice it to state that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution or administrative action should not stop or abate any inquiry to carry out a legislative purpose.16 A legislative investigation in aid of legislation and court proceedings has different purposes. On one hand, courts conduct hearings or like adjudicative procedures to settle, through the application of a law, actual controversies arising between adverse litigants and involving demandable rights. On the other hand, inquiries in aid of legislation are, inter alia, undertaken as tools to enable the legislative body to gather information and, thus, legislate wisely and effectively;17 and to determine whether there is a need to improve existing laws or enact new or remedial legislation,18 albeit the inquiry need not result in any potential legislation. On-going judicial proceedings do not preclude congressional hearings in aid of legislation. Standard Chartered Bank (Philippine Branch) v. Senate Committee on Banks, Financial Institutions and Currencies (Standard Chartered Bank) provides the following reason: [T]he mere filing of a criminal or an administrative complaint before a court or quasi-judicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint. Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or administrative investigation.
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As succinctly stated in x x x Arnault v. Nazareno [T]he power of inquirywith process to enforce itis 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 informationwhich is not infrequently true recourse must be had to others who possess it.19 While Sabio and Standard Chartered Bank advert only to pending criminal and administrative cases before lower courts as not posing a bar to the continuation of a legislative inquiry, there is no rhyme or reason that these cases doctrinal pronouncement and their rationale cannot be extended to appealed cases and special civil actions awaiting final disposition before this Court. The foregoing consideration is not all. The denial of the instant recourse is still indicated for another compelling reason. As may be noted, PS Resolution Nos. 537 and 543 were passed in 2006 and the
letter-invitations and subpoenas directing the petitioners to appear and testify in connection with the twin resolutions were sent out in the month of August 2006 or in the past Congress. On the postulate that the Senate of each Congress acts separately and independently of the Senate before and after it, the aforesaid invitations and subpoenas are considered functos oficio and the related legislative inquiry conducted is, for all intents and purposes, terminated. In this regard, the Court draws attention to its pronouncements embodied in its Resolution of September 4, 2008 in G.R. No. 180643 entitled Neri v. Senate Committee on Accountability of Public Officers and Investigations: Certainly, x x x the Senate as an institution is "continuing," as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business, the Senate of each Congress acts separately and independently of the Senate before it. The Rules of the Senate itself confirms this when it states: xxxx SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status. All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present[ed] for the first time. Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. x x x (Emphasis added.) Following the lessons of Neri, as reiterated in Garcillano v. The House of Representatives Committees on Public Information, Public Order and Safety, et al.,20 it can very well be stated that the termination of the assailed investigations has veritably mooted the instant petition. This disposition becomes all the more impeccable, considering that the Senate of the present Congress has not, per available records, opted to take up anew, as an unfinished matter, its inquiry into the investment of OWWA funds in the Smokey Mountain project. With the foregoing disquisition, the Court need not belabor the other issues raised in this recourse. Suffice it to state that when the Committee issued invitations and subpoenas to petitioners to appear before it in connection with its investigation of the aforementioned investments, it did so pursuant to its authority to conduct inquiries in aid of legislation. This is clearly provided in Art. VI, Sec. 21 of the Constitution, which was quoted at the outset. And the Court has no authority to prohibit a Senate committee from requiring persons to appear and testify before it in connection with an inquiry in aid of legislation in accordance with its duly published rules of procedure.21Sabio emphasizes the importance of the duty of those subpoenaed to appear before the legislature, even if incidentally incriminating questions are expected to be asked: Anent the right against self-incrimination, it must be emphasized that ["this right may be] invoked by the said directors and officers of Philcomsat x x x only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be asked of them."http://elibrary.supremecourt.gov.ph/DOCUMENTS/SUPREME_COURT/Decisions/2006.zip%
3E528,df%7C2006/OCT2006/174340.htm - _ftn That this right may possibly be violated or abused is no ground for denying respondent Senate Committees their power of inquiry. The consolation is that when this power is abused, such issue may be presented before the courts. xxxx Let it be stressed at this point that so long as the constitutional rights of witnesses x x x will be respected by respondent Senate Committees, it [is] their duty to cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of proper investigation.22 (Emphasis supplied.) As a matter of long and sound practice, the Court refrains from touching on the issue of constitutionality except when it is unavoidable and is the very lis mota23 of the controversy. So it must be here. Indeed, the matter of the constitutionality of the assailed Committee invitations and subpoenas issued vis--vis the investigation conducted pursuant to PS Resolution Nos. 537 and 543 has ceased to be a justiciable controversy, having been rendered moot and academic by supervening events heretofore indicated. In short, there is no more investigation to be continued by virtue of said resolutions; there is no more investigation the constitutionality of which is subject to a challenge. WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED.
Sabio vs Gordon
Republic of the Philippines SUPREME COURT Manila EN BAN G.R. No. 174340 October 17, 2006
IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF HABEAS CORPUS OF CAMILO L. SABIO,petitioner, J. ERMIN ERNEST LOUIE R. MIGUEL, petitioner-relator, vs. HONORABLE SENATOR RICHARD GORDON, in his capacity as Chairman, and the HONORABLE MEMBERS OF THE COMMITTEE ON GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES and THE COMMITTEE ON PUBLIC SERVICES of the Senate, HONORABLE SENATOR JUAN PONCE-ENRILE, in his official capacity as Member, HONORABLE MANUEL VILLAR, Senate President, SENATE SERGEANT-AT-ARMS, and the SENATE OF THE PHILIPPINES, respondents. x --------------------------------------------------------------------------- x G.R. No. 174318 October 17, 2006
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and CAMILO L. SABIO, Chairman, NARCISO S. NARIO, RICARDO M. ABCEDE, TERESO L. JAVIER and NICASIO A. CONTI, Commissioners, MANUEL ANDAL and JULIO JALANDONI, PCGG nominees to Philcomsat Holdings Corporation, petitioners, vs. RICHARD GORDON, in his capacity as Chairman, and MEMBERS OF THE COMMITTEE ON GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES, MEMBERS OF THE COMMITTEE ON PUBLIC SERVICES, SENATOR JUAN PONCE-ENRILE, in his capacity as member of both said Committees, MANUEL VILLAR, Senate President, THE SENATE SERGEANT-AT-ARMS, and SENATE OF THE PHILIPPINES, respondents. x --------------------------------------------------------------------------- x G.R. No. 174177 October 17, 2006
PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G. BRODETT, LUIS K. LOKIN, JR., ROBERTO V. SAN JOSE, DELFIN P. ANGCAO, ROBERTO L. ABAD, ALMA KRISTINA ALOBBA, and JOHNNY TAN, petitioners, vs. SENATE COMMITTEE ON GOVERNMENT CORPORATIONS and PUBLIC ENTERPRISES, its MEMBERS and CHAIRMAN, the HONORABLE SENATOR RICHARD GORDON and SENATE COMMITTEE ON PUBLIC SERVICES, its Members and Chairman, the HONORABLE SENATOR JOKER P. ARROYO, respondents.
DECISION
Sabio vs Gordon
SANDOVAL-GUTIERREZ, J.: Two decades ago, on February 28, 1986, former President Corazon C. Aquino installed her regime by issuing Executive Order (E.O.) No. 1,1 creating the Presidential Commission on Good Government (PCGG). She entrusted upon this Commission the herculean task of recovering the illgotten wealth accumulated by the deposed President Ferdinand E. Marcos, his family, relatives, subordinates and close associates.2 Section 4 (b) of E.O. No. 1 provides that: "No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance." Apparently, the purpose is to ensure PCGG's unhampered performance of its task.3 Today, the constitutionality of Section 4(b) is being questioned on the ground that it tramples upon the Senate's power to conduct legislative inquiry under Article VI, Section 21 of the 1987 Constitution, which reads: 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. The facts are undisputed. On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),4 "directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors." The pertinent portions of the Resolution read: WHEREAS, in the last quarter of 2005, the representation and entertainment expense of the PHC skyrocketed to P4.3 million, as compared to the previous year's mere P106 thousand; WHEREAS, some board members established wholly owned PHC subsidiary called Telecommunications Center, Inc. (TCI), where PHC funds are allegedly siphoned; in 18 months, over P73 million had been allegedly advanced to TCI without any accountability report given to PHC and PHILCOMSAT; WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that the executive committee of Philcomsat has precipitately released P265 million and granted P125 million loan to a relative of an executive committee member; to date there have been no payments given, subjecting the company to an estimated interest income loss of P11.25 million in 2004; WHEREAS, there is an urgent need to protect the interest of the Republic of the Philippines in the PHC, PHILCOMSAT, and POTC from any anomalous transaction, and to conserve or salvage any remaining value of the government's equity position in these corporations from any abuses of power done by their respective board of directors;
Sabio vs Gordon
WHEREFORE, be it resolved that the proper Senate Committee shall conduct an inquiry in aid of legislation, on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors. Adopted. (Sgd) MIRIAM DEFENSOR SANTIAGO On the same date, February 20, 2006, Senate Res. No. 455 was submitted to the Senate and referred to theCommittee on Accountability of Public Officers and Investigations and Committee on Public Services. However, on March 28, 2006, upon motion of Senator Francis N. Pangilinan, it was transferred to the Committee on Government Corporations and Public Enterprises.5 On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services. The purpose of the public meeting was to deliberate on Senate Res. No. 455.6 On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment.7 At the same time, he invoked Section 4(b) of E.O. No. 1 earlier quoted. On August 10, 2006, Senator Gordon issued a Subpoena Ad Testificandum,8 approved by Senate President Manuel Villar, requiring Chairman Sabio and PCGG Commissioners Ricardo Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to appear in the public hearing scheduled on August 23, 2006 and testify on what they know relative to the matters specified in Senate Res. No. 455. Similar subpoenae were issued against the directors and officers of Philcomsat Holdings Corporation, namely: Benito V. Araneta, Philip J. Brodett, Enrique L. Locsin, Manuel D. Andal, Roberto L. Abad, Luis K. Lokin, Jr., Julio J. Jalandoni, Roberto V. San Jose, Delfin P. Angcao, Alma Kristina Alloba and Johnny Tan.9 Again, Chairman Sabio refused to appear. In his letter to Senator Gordon dated August 18, 2006, he reiterated his earlier position, invoking Section 4(b) of E.O. No. 1. On the other hand, the directors and officers of Philcomsat Holdings Corporation relied on the position paper they previously filed, which raised issues on the propriety of legislative inquiry. Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the authority of Senator Gordon, sent another notice10 to Chairman Sabio requiring him to appear and testify on the same subject matter set on September 6, 2006. The notice was issued "under the same authority of the Subpoena Ad Testificandum previously served upon (him) last 16 August 2006." Once more, Chairman Sabio did not comply with the notice. He sent a letter11 dated September 4, 2006 to Senator Gordon reiterating his reason for declining to appear in the public hearing. This prompted Senator Gordon to issue an Order dated September 7, 2006 requiring Chairman Sabio and Commissioners Abcede, Conti, Javier and Nario to show cause why they should not be cited in contempt of the Senate. On September 11, 2006, they submitted to the Senate their Compliance and Explanation,12 which partly reads:
Sabio vs Gordon
Doubtless, there are laudable intentions of the subject inquiry in aid of legislation. But the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods. (Brillantes, Jr., et al. v. Commission on Elections, En Banc [G.R. No. 163193, June 15, 2004]) On this score, Section 4(b) of E.O. No. 1 should not be ignored as it explicitly provides: No member or staff of the Commission shall be required to testify or produce evidence in any judicial legislative or administrative proceeding concerning matters within its official cognizance. With all due respect, Section 4(b) of E.O. No. 1 constitutes a limitation on the power of legislative inquiry, and a recognition by the State of the need to provide protection to the PCGG in order to ensure the unhampered performance of its duties under its charter. E.O. No. 1 is a law, Section 4(b) of which had not been amended, repealed or revised in any way. To say the least, it would require both Houses of Congress and Presidential fiat to amend or repeal the provision in controversy. Until then, it stands to be respected as part of the legal system in this jurisdiction. (As held in People v. Veneracion, G.R. Nos. 119987-88, October 12, 1995: Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought to 'protect and enforce it without fear or favor,' 4 [Act of Athens (1955)] resist encroachments by governments, political parties, or even the interference of their own personal beliefs.) xxxxxx Relevantly, Chairman Sabio's letter to Sen. Gordon dated August 19, 2006 pointed out that the anomalous transactions referred to in the P.S. Resolution No. 455 are subject of pending cases before the regular courts, the Sandiganbayan and the Supreme Court (Pending cases include: a. Samuel Divina v. Manuel Nieto, Jr., et al., CA-G.R. No. 89102; b. Philippine Communications Satellite Corporation v. Manuel Nieto, et al.; c. Philippine Communications Satellite Corporation v. Manuel D. Andal, Civil Case No. 06-095, RTC, Branch 61, Makati City; d. Philippine Communications Satellite Corporation v. PHILCOMSAT Holdings Corporation, et al., Civil Case No. 04-1049) for which reason they may not be able to testify thereon under the principle of sub judice. The laudable objectives of the PCGG's functions, recognized in several cases decided by the Supreme Court, of the PCGG will be put to naught if its recovery efforts will be unduly impeded by a legislative investigation of cases that are already pending before the Sandiganbayan and trial courts. In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784 [1991]) the Honorable Supreme Court held: "[T]he issues sought to be investigated by the respondent Committee is one over which jurisdiction had been acquired by the Sandiganbayan. In short, the issue has been pre-empted by that court. To allow the respondent Committee to conduct its own investigation of an issue already before the Sandigabayan would not only pose the possibility of conflicting judgments between a legislative committee and a judicial
Sabio vs Gordon
tribunal, but if the Committee's judgment were to be reached before that of the Sandiganbayan, the possibility of its influence being made to bear on the ultimate judgment of the Sandiganbayan can not be discounted. xxxxxx IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that the Commission decided not to attend the Senate inquiry to testify and produce evidence thereat. Unconvinced with the above Compliance and Explanation, the Committee on Government Corporations and Public Enterprises and the Committee on Public Services issued an Order13 directing Major General Jose Balajadia (Ret.), Senate Sergeant-At-Arms, to place Chairman Sabio and his Commissioners under arrest for contempt of the Senate. The Order bears the approval of Senate President Villar and the majority of the Committees' members. On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was detained. Hence, Chairman Sabio filed with this Court a petition for habeas corpus against the Senate Committee on Government Corporations and Public Enterprises and Committee on Public Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and Members. The case was docketed as G.R. No. 174340. Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier, and the PCGG's nominees to Philcomsat Holdings Corporation, Manuel Andal and Julio Jalandoni, likewise filed a petition for certiorari and prohibition against the same respondents, and also against Senate President Manuel Villar, Senator Juan Ponce Enrile, the Sergeant-at-Arms, and the entire Senate. The case was docketed as G.R. No. 174318. Meanwhile, Philcomsat Holdings Corporation and its officers and directors, namely: Philip G. Brodett, Luis K. Lokin, Jr., Roberto V. San Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba and Johnny Tan filed a petition for certiorari and prohibition against the Senate Committees on Government Corporations and Public Enterprisesand Public Services, their Chairmen, Senators Gordon and Arroyo, and Members. The case was docketed as G.R. No. 174177. In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for certiorari and prohibition) Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier; and the PCGG's nominees Andal and Jalandoni alleged: first, respondent Senate Committees disregarded Section 4(b) of E.O. No. 1 without any justifiable reason; second, the inquiries conducted by respondent Senate Committees are not in aid of legislation; third, the inquiries were conducted in the absence of duly published Senate Rules of Procedure Governing Inquiries in Aid of Legislation; and fourth, respondent Senate Committees are not vested with the power of contempt. In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and its directors and officers alleged: first, respondent Senate Committees have no jurisdiction over the subject matter stated in Senate Res. No. 455;second, the same inquiry is not in accordance with the Senate's Rules of Procedure Governing Inquiries in Aid of Legislation; third, the subpoenae against the individual petitioners are void for having been issued without authority; fourth, the conduct of legislative inquiry pursuant to Senate Res. No. 455 constitutes undue encroachment by respondents into justiciable controversies over which several courts and tribunals have already acquired jurisdiction; and fifth, the subpoenae violated petitioners' rights to privacy and against self-incrimination.
Sabio vs Gordon
In their Consolidated Comment, the above-named respondents countered: first, the issues raised in the petitions involve political questions over which this Court has no jurisdiction; second, Section 4(b) has been repealed by the Constitution; third, respondent Senate Committees are vested with contempt power; fourth, Senate's Rules of Procedure Governing Inquiries in Aid of Legislation have been duly published; fifth, respondents have not violated any civil right of the individual petitioners, such as their (a) right to privacy; and (b) right against self-incrimination; and sixth, the inquiry does not constitute undue encroachment into justiciable controversies. During the oral arguments held on September 21, 2006, the parties were directed to submit simultaneously their respective memoranda within a non-extendible period of fifteen (15) days from date. In the meantime, per agreement of the parties, petitioner Chairman Sabio was allowed to go home. Thus, his petition for habeas corpushas become moot. The parties also agreed that the service of the arrest warrants issued against all petitioners and the proceedings before the respondent Senate Committees are suspended during the pendency of the instant cases.14 Crucial to the resolution of the present petitions is the fundamental issue of whether Section 4(b) of E.O. No. 1 is repealed by the 1987 Constitution. On this lone issue hinges the merit of the contention of Chairman Sabio and his Commissioners that their refusal to appear before respondent Senate Committees is justified. With the resolution of this issue, all the other issues raised by the parties have become inconsequential. Perched on one arm of the scale of justice is Article VI, Section 21 of the 1987 Constitution granting respondent Senate Committees the power of legislative inquiry. It reads: 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. On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such power of legislative inquiry by exempting all PCGG members or staff from testifying in any judicial, legislative or administrative proceeding, thus: No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance. To determine whether there exists a clear and unequivocal repugnancy between the two quoted provisions that warrants a declaration that Section 4(b) has been repealed by the 1987 Constitution, a brief consideration of the Congress' power of inquiry is imperative. The Congress' power of inquiry has been recognized in foreign jurisdictions long before it reached our shores through McGrain v. Daugherty,15 cited in Arnault v. Nazareno.16 In those earlier days, American courts considered the power of inquiry as inherent in the power to legislate. The 1864 case of Briggs v. MacKellar17explains the breath and basis of the power, thus: Where no constitutional limitation or restriction exists, it is competent for either of the two bodies composing the legislature to do, in their separate capacity, whatever may be essential to enable them to legislate.It is well-established principle of this parliamentary law, that either house may institute any investigationhaving reference to its own organization, the conduct or qualification of its members, its proceedings, rights, or privileges or any matter affecting the public interest upon which it may be important that it should have
Sabio vs Gordon
exact information, and in respect to which it would be competent for it to legislate. The right to pass laws, necessarily implies the right to obtain information upon any matter which may become the subject of a law. It is essential to the full and intelligent exercise of the legislative function.In American legislatures the investigation of public matters before committees, preliminary to legislation, or with the view of advising the house appointing the committee is, as a parliamentary usage, well established as it is in England, and the right of either house to compel witnesses to appear and testify before its committee, and to punish for disobedience has been frequently enforced.The right of inquiry, I think, extends to other matters, in respect to which it may be necessary, or may be deemed advisable to apply for legislative aid. Remarkably, in Arnault, this Court adhered to a similar theory. Citing McGrain, it recognized that the power of inquiry is "an essential and appropriate auxiliary to the legislative function," thus: 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 legislation body does not itself possess the requisite information which is not infrequently true recourse must be had to others who possess it." Dispelling any doubt as to the Philippine Congress' power of inquiry, provisions on such power made their maiden appearance in Article VIII, Section 12 of the 1973 Constitution.18 Then came the 1987 Constitution incorporating the present Article VI, Section 12. What was therefore implicit under the 1935 Constitution, as influenced by American jurisprudence, became explicit under the 1973 and 1987 Constitutions.19 Notably, the 1987 Constitution recognizes the power of investigation, not just of Congress, but also of "any of its committee." This is significant because it constitutes a direct conferral of investigatory power upon the committees and it means that the mechanisms which the Houses can take in order to effectively perform its investigative function are also available to the committees.20 It can be said that the Congress' power of inquiry has gained more solid existence and expansive construal. The Court's high regard to such power is rendered more evident in Senate v. Ermita,21 where it categorically ruled that"the power of inquiry is broad enough to cover officials of the executive branch." Verily, the Court reinforced the doctrine in Arnault that "the operation of government, being a legitimate subject for legislation, is a proper subject for investigation" and that "the power of inquiry is co-extensive with the power to legislate." Considering these jurisprudential instructions, we find Section 4(b) directly repugnant with Article VI, Section 21. Section 4(b) exempts the PCGG members and staff from the Congress' power of inquiry. This cannot be countenanced. Nowhere in the Constitution is any provision granting such exemption. The Congress' power of inquiry, being broad, encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes.22 It even extends "to government agencies created by Congress and officers whose positions are within the power of Congress to regulate or even abolish."23 PCGG belongs to this class.
Sabio vs Gordon
Certainly, a mere provision of law cannot pose a limitation to the broad power of Congress, in the absence of any constitutional basis. Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of the Constitution stating that: "Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives." The provision presupposes that since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people and are to be exercised in behalf of the government or of all citizens who may need the intervention of the officers. Such trust extends to all matters within the range of duties pertaining to the office. In other words, public officers are but the servants of the people, and not their rulers.24 Section 4(b), being in the nature of an immunity, is inconsistent with the principle of public accountability. It places the PCGG members and staff beyond the reach of courts, Congress and other administrative bodies. Instead of encouraging public accountability, the same provision only institutionalizes irresponsibility and non-accountability. In Presidential Commission on Good Government v. Pea,25 Justice Florentino P. Feliciano characterized as "obiter" the portion of the majority opinion barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for damages filed against the PCGG and its Commissioners. He eloquently opined: The above underscored portions are, it is respectfully submitted, clearly obiter. It is important to make clear that the Court is not here interpreting, much less upholding as valid and constitutional, the literal terms of Section 4 (a), (b) of Executive Order No.1. If Section 4 (a) were given its literal import as immunizing the PCGG or any member thereof from civil liability "for anything done or omitted in the discharge of the task contemplated by this Order," the constitutionality of Section 4 (a) would, in my submission, be open to most serious doubt. For so viewed, Section 4 (a) would institutionalize the irresponsibility and non-accountability of members and staff of the PCGG, a notion that is clearly repugnant to both the 1973 and 1987 Constitution and a privileged status not claimed by any other official of the Republic under the 1987 Constitution. x x x. xxxxxx It would seem constitutionally offensive to suppose that a member or staff member of the PCGG could not be required to testify before the Sandiganbayan or that such members were exempted from complying with orders of this Court. Chavez v. Sandiganbayan26 reiterates the same view. Indeed, Section 4(b) has been frowned upon by this Court even before the filing of the present petitions. Corollarily, Section 4(b) also runs counter to the following constitutional provisions ensuring the people's access to information: Article II, Section 28 Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
Sabio vs Gordon
Article III, Section 7 The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to enable them to exercise effectively their constitutional rights. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. In Valmonte v. Belmonte, Jr.27 the Court explained that an informed citizenry is essential to the existence and proper functioning of any democracy, thus: An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. 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. Consequently, the conduct of inquiries in aid of legislation is not only intended to benefit Congress but also the citizenry. The people are equally concerned with this proceeding and have the right to participate therein in order to protect their interests. The extent of their participation will largely depend on the information gathered and made known to them. In other words, the right to information really goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in the government.28 The cases of Taada v. Tuvera29 and Legaspi v. Civil Service Commission30 have recognized a citizen's interest and personality to enforce a public duty and to bring an action to compel public officials and employees to perform that duty. Section 4(b) limits or obstructs the power of Congress to secure from PCGG members and staff information and other data in aid of its power to legislate. Again, this must not be countenanced. In Senate v. Ermita,31 this Court stressed: 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. A statute may be declared unconstitutional because it is not within the legislative power to enact; or it creates or establishes methods or forms that infringe constitutional principles; or its purpose or effect violates the Constitution or its basic principles.32 As shown in the above discussion, Section 4(b) is inconsistent withArticle VI, Section 21 (Congress' power of inquiry), Article XI,
Sabio vs Gordon
Section 1 (principle of public accountability),Article II, Section 28 (policy of full disclosure) and Article III, Section 7 (right to public information). Significantly, Article XVIII, Section 3 of the Constitution provides: All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked. The clear import of this provision is that all existing laws, executive orders, proclamations, letters of instructions and other executive issuances inconsistent or repugnant to the Constitution are repealed. Jurisprudence is replete with decisions invalidating laws, decrees, executive orders, proclamations, letters of instructions and other executive issuances inconsistent with the Constitution. In Pelaez v. Auditor General,33 the Court considered repealed Section 68 of the Revised Administrative Code of 1917 authorizing the Executive to change the seat of the government of any subdivision of local governments, upon the approval of the 1935 Constitution. Section 68 was adjudged incompatible and inconsistent with the Constitutional grant of limited executive supervision over local governments. In Islamic Da'wah Council of the Philippines, Inc., v. Office of the Executive Secretary,34 the Court declared Executive Order No. 46, entitled "Authorizing the Office on Muslim Affairs to Undertake Philippine Halal Certification," void for encroaching on the religious freedom of Muslims. InThe Province of Batangas v. Romulo,35 the Court declared some provisions of the General Appropriations Acts of 1999, 2000 and 2001 unconstitutional for violating the Constitutional precept on local autonomy. And in Ople v. Torres,36 the Court likewise declared unconstitutional Administrative Order No. 308, entitled "Adoption of a National Computerized Identification Reference System," for being violative of the right to privacy protected by the Constitution. These Decisions, and many others, highlight that the Constitution is the highest law of the land. It is "the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. No act shall be valid, however noble its intentions, if it conflicts with the Constitution."37 Consequently, this Court has no recourse but to declare Section 4(b) of E.O. No. 1 repealed by the 1987 Constitution. Significantly, during the oral arguments on September 21, 2006, Chairman Sabio admitted that should this Court rule that Section 4(b) is unconstitutional or that it does not apply to the Senate, he will answer the questions of the Senators, thus: CHIEF JUSTICE PANGANIBAN: Okay. Now, if the Supreme Court rules that Sec. 4(b) is unconstitutional or that it does not apply to the Senate, will you answer the questions of the Senators? CHAIRMAN SABIO: Your Honor, my father was a judge, died being a judge. I was here in the Supreme Court as Chief of Staff of Justice Feria. I would definitely honor the Supreme Court and the rule of law. CHIEF JUSTICE PANGANIBAN:
Sabio vs Gordon
You will answer the questions of the Senators if we say that? CHAIRMAN SABIO: Yes, Your Honor. That is the law already as far as I am concerned. With his admission, Chairman Sabio is not fully convinced that he and his Commissioners are shielded from testifying before respondent Senate Committees by Section 4(b) of E.O. No. 1. In effect, his argument that the said provision exempts him and his co-respondent Commissioners from testifying before respondent Senate Committees concerning Senate Res. No. 455 utterly lacks merit. Incidentally, an argument repeated by Chairman Sabio is that respondent Senate Committees have no power to punish him and his Commissioners for contempt of the Senate. The argument is misleading. Article VI, Section 21 provides: 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. It must be stressed that the Order of Arrest for "contempt of Senate Committees and the Philippine Senate" wasapproved by Senate President Villar and signed by fifteen (15) Senators. From this, it can be concluded that the Order is under the authority, not only of the respondent Senate Committees, but of the entire Senate. At any rate, Article VI, Section 21 grants the power of inquiry not only to the Senate and the House of Representatives, but also to any of their respective committees. Clearly, there is a direct conferral of power to the committees. Father Bernas, in his Commentary on the 1987 Constitution, correctly pointed out its significance: It should also be noted that the Constitution explicitly recognizes the power of investigation not just of Congress but also of "any of its committees." This is significant because it constitutes a direct conferral of investigatory power upon the committees and it means that the means which the Houses can take in order to effectively perform its investigative function are also available to the Committees.38 This is a reasonable conclusion. The conferral of the legislative power of inquiry upon any committee of Congress must carry with it all powers necessary and proper for its effective discharge. Otherwise, Article VI, Section 21 will be meaningless. The indispensability and usefulness of the power of contempt in a legislative inquiry is underscored in a catena of cases, foreign and local. In the 1821 case of Anderson v. Dunn,39 the function of the Houses of Congress with respect to the contempt power was likened to that of a court, thus: But the court in its reasoning goes beyond this, and though the grounds of the decision are not very clearly stated, we take them to be: that there is in some cases a power in each House of Congress to punish for contempt; that this power is analogous to that exercised by courts of justice, and that it being the well established doctrine that
Sabio vs Gordon
when it appears that a prisoner is held under the order of a court of general jurisdiction for a contempt of its authority, no other court will discharge the prisoner or make further inquiry into the cause of his commitment. That this is the general ruleas regards the relation of one court to another must be conceded. In McGrain,40 the U.S. Supreme Court held: "Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed." The Court, in Arnault v. Nazareno,41 sustained the Congress' power of contempt on the basis of this observation. In Arnault v. Balagtas,42 the Court further explained that the contempt power of Congress is founded upon reason and policy and that the power of inquiry will not be complete if for every contumacious act, Congress has to resort to judicial interference, thus: The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each department's authority to be full and complete, independently of the other's authority or power. And how could the authority and power become complete if for every act of refusal, every act of defiance, every act of contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with the affronts committed against its authority or dignity.43 In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete,44 the Court characterized contempt power as a matter of self-preservation, thus: The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of the government vested with the legislative power, independently of the judicial branch, asserts its authority and punishes contempts thereof. The contempt power of the legislature is, therefore, sui generis x x x. Meanwhile, with respect to G.R. No. 174177, the petition of Philcomsat Holdings Corporation and its directors and officers, this Court holds that the respondent Senate Committees' inquiry does not violate their right to privacy and right against self-incrimination. One important limitation on the Congress' power of inquiry is that "the rights of persons appearing in or affected by such inquiries shall be respected." This is just another way of saying that the power of inquiry must be "subject to the limitations placed by the Constitution on government action." As held in Barenblatt v. United States,45 "the Congress, in common with all the other branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights." First is the right to privacy.
Sabio vs Gordon
Zones of privacy are recognized and protected in our laws.46 Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "theright most valued by civilized men,"47 but also from our adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of the law against such interference or attacks."48 Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person's "right to be let alone" or the "right to determine what, how much, to whom and when information about himself shall be disclosed."49 Section 2 guarantees "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." Section 3 renders inviolable the "privacy of communication and correspondence" and further cautions that "any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding." In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.50 Applying this determination to these cases, the important inquiries are: first, did the directors and officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?; andsecond, did the government violate such expectation? The answers are in the negative. Petitioners were invited in the Senate's public hearing to deliberate on Senate Res. No. 455, particularly "on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors." Obviously, the inquiry focus on petitioners' acts committed in the discharge of their duties as officers and directors of the said corporations, particularly Philcomsat Holdings Corporation. Consequently, they have no reasonable expectation of privacy over matters involving their offices in a corporation where the government has interest. Certainly, such matters are of public concern and over which the people have the right to information. This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest. In Morfe v. Mutuc,51 the Court, in line with Whalen v. Roe,52 employed the rational basis relationship test when it held that there was no infringement of the individual's right to privacy as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a standard of honesty in public service, and promote morality in public administration.53 In Valmonte v. Belmonte,54the Court remarked that as public figures, the Members of the former Batasang Pambansa enjoy a more limited right to privacy as compared to ordinary individuals, and their actions are subject to closer scrutiny. Taking this into consideration, the Court ruled that the right of the people to access information on matters of public concern prevails over the right to privacy of financial transactions. Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate remedial measures and policy determination regarding PCGG's efficacy. There being no reasonable expectation of privacy
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on the part of those directors and officers over the subject covered by Senate Res. No. 455, it follows that their right to privacy has not been violated by respondent Senate Committees. Anent the right against self-incrimination, it must be emphasized that this right maybe invoked by the said directors and officers of Philcomsat Holdings Corporation only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be asked of them."55That this right may possibly be violated or abused is no ground for denying respondent Senate Committees their power of inquiry. The consolation is that when this power is abused, such issue may be presented before the courts. At this juncture, what is important is that respondent Senate Committees have sufficient Rules to guide them when the right against self-incrimination is invoked. Sec. 19 reads: Sec. 19. Privilege Against Self-Incrimination A witness can invoke his right against self-incrimination only when a question tends to elicit an answer that will incriminate him is propounded to him. However, he may offer to answer any question in an executive session. No person can refuse to testify or be placed under oath or affirmation or answer questions before an incriminatory question is asked. His invocation of such right does not by itself excuse him from his duty to give testimony. In such a case, the Committee, by a majority vote of the members present there being a quorum, shall determine whether the right has been properly invoked. If the Committee decides otherwise, it shall resume its investigation and the question or questions previously refused to be answered shall be repeated to the witness. If the latter continues to refuse to answer the question, the Committee may punish him for contempt for contumacious conduct. The same directors and officers contend that the Senate is barred from inquiring into the same issues being litigated before the Court of Appeals and the Sandiganbayan. Suffice it to state that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution of criminal or administrative action should not stop or abate any inquiry to carry out a legislative purpose. Let it be stressed at this point that so long as the constitutional rights of witnesses, like Chairman Sabio and his Commissioners, will be respected by respondent Senate Committees, it their duty to cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of proper investigation. In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings Corporation, as well as its directors and officers, must comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455. WHEREFORE, the petition in G.R. No. 174340 for habeas corpus is DISMISSED, for being moot. The petitions in G.R Nos. 174318 and 174177 are likewise DISMISSED. Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987 Constitution. Respondent Senate Committees' power of inquiry relative to Senate Resolution 455 is upheld. PCGG Chairman Camilo
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L. Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings Corporation, as well as its directors and officers, petitioners in G.R. No. 174177, are ordered to comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455. SO ORDERED.
Sanchez vs. COA

EN BANC [G.R. No. 127545, April 23, 2008] ANDRES SANCHEZ, LEONARDO D. REGALA, RAFAEL D. BARATA, NORMA AGBAYANI, AND CESAR N. SARINO, PETITIONERS,VS. COMMISSION ON AUDIT, RESPONDENT. DECISION
TINGA, J,: The 1987 Constitution has made the Commission on Audit (COA) the guardian of public funds, vesting it with broad powers over all accounts pertaining to government revenue and expenditures and the uses of public funds and property, including the exclusive authority to define the scope of its audit and examination, establish the techniques and methods for such review, and promulgate accounting and auditing rules and regulations.[1] Its exercise of its general audit power is among the constitutional mechanisms that give life to the check and balance system inherent in our form of government.[2] The exercise of this power by the Department Auditor of the Department of the Interior and Local Government (DILG) is the subject of the instant Petition for Review[3] dated 10 February 1997. A chronicle of the operative incidents is needed. In 1991, Congress passed Republic Act No. 7180 (R.A. 7180) otherwise known as the General Appropriations Act of 1992. This law provided an appropriation for the DILG under Title XIII and set aside the amount of P75,000,000.00 for the DILG's Capability Building Program. The usage of the Capability Building Program Fund (Fund) is provided under the Special Provisions of the law as follows: Special Provisions 1. Capability Building Program for Local Personnel. The amount herein appropriated for the Capability Building Program for local personnel shall be used for local government and community capability building programs, such as training and technical assistance, with the necessary support for training materials, supplies and facilities: PROVIDED, That savings from the appropriation may be used to acquire equipment, except motor vehicles, in further support of the programs.
The Capability Building Program shall be implemented nationwide by the Department of the Interior and Local Government through the Local Government Academy and shall involve local officials and employees, including barangay officials, elected and appointed. The appropriations authorized herein shall be administered by the Department of the Interior and Local Government and shall be released upon submission of a work and financial plan supported by a detailed breakdown of the projects, activities and objects of expenditures proposed to be funded. Savings generated over and above the requirements prescribed in Section 18 of the General Provisions of this Act shall be made available for the Capability Building Program of the Department of the Interior and Local Government for local officials and employees, subject to Section 40 of P.D. 1177 (Sec. 35, Book VI of E.O. No. 292). On 11 November 1991, Atty. Hiram C. Mendoza (Atty. Mendoza), Project Director of the Ad Hoc Task Force for Inter-Agency Coordination to Implement Local Autonomy, informed then Deputy Executive Secretary Dionisio de la Serna of the proposal to constitute and implement a "shamrock" type task force to implement local autonomy institutionalized under the Local Government Code of 1991.
Sanchez vs. COA

The stated purpose for the creation of the task force was to design programs, strategize and prepare modules for an effective program for local autonomy. The estimated expenses for its operation was P2,388,000.00 for a period of six months beginning on 1 December 1991 up to 31 May 1992 unless the above ceiling is sooner expended and/or the project is earlier pre-terminated. The proposal was accepted by the Deputy Executive Secretary and attested by then DILG Secretary Cesar N. Sarino, one of the petitioners herein, who consequently issued a memorandum for the transfer and remittance to the Office of the President of the sum of P300,000.00 for the operational expenses of the task force. An additional cash advance of P300,000.00 was requested. These amounts were taken from the Fund. Two (2) cash advances both in the amount of P300,000.00 were withdrawn from the Fund by the DILG and transferred to the Cashier of the Office of the President. The "Particulars of Payment" column of the disbursement voucher states that the transfer of funds was made "to the Office of the President for Ad-Hoc Task Force for Inter-Agency Coordination to Implement Local Autonomy."[4] The first cash advance in the amount of P300,000.00 was liquidated in the following manner although no receipts were presented to support the expenditures:
Payroll Office rentals Office furnitures Office supplies Xerox Transportation expense Bank charges Miscellaneous Balance 31 March 1992 P 226,000.00 60,000.00 7,500.00 3,682.50 300.30 406.00 75.00 60.00 P 298,023.80 P 1,976.00[5]
There is no record of the liquidation of the second cash advance in the amount of P300,000.00. Upon post-audit conducted by Department auditor Iluminada M.V. Fabroa, however, the amounts were disallowed for the following reasons stated in the 3rd Endorsement dated 25 May 1992: 1. 2. 3. 4. No legal basis for the created Task Force to claim payment thru DILG by way of cash advance. Previous cash advance granted to accountable officer has not yet been liquidated. Expenditures funded from capability building are subject to restrictions/conditions embodied in the Special Provisions of the DILG Appropriations of R.A. 7180 which should be met. Estimate of expenses covered by the cash advance not specified.[6]
The disallowance was reiterated in the Notice of Disallowance dated 29 March 1993, which states: The transfer of fund from DILG to the Office of the President to defray salaries of personnel, office supplies, office rentals, foods and meals, etc. of an Ad Hoc Task Force for Inter-Agency Coordination to Implement Local Autonomy taken from the Capability Building Program Fund is violative of the Special Provisions of R.A. 7180.[7] A Notice of Disallowance dated 29 March 1993 was then sent to Mr. Sarino, et al.holding the latter jointly and severally liable for the amount and directing them to immediately settle the disallowance. Aggrieved by such action, Mr. Sarino, et al. requested reconsideration of the disallowance on the following grounds: 1. That the transfer was for the operational expenses of an ad hoc task force for interagency coordination to implement local autonomy; hence, for a public purpose;
Sanchez vs. COA

2. Legally, the question of whether or not the transfer of funds by the DILG taken from the capability building program of the Office of the President is violative of R.A. 7180 is exclusively within the competence and jurisdiction of the courts and not of any other office. As it is, the matter involves a prejudicial issue that necessitates prior authoritative determination by the courts. Unless there is a pronouncement to the contrary, the transfer of funds for a public purpose effected by the executive branch of government thru the department head is presumed legal and regular. Likewise, the DILG Auditor's conclusion of violation of the law cannot overcome the presumption of legality and regularity of acts done by public officers in the performance of public duty. At best, such conclusion is gratuitous and devoid of legal force and effect;
3.
That the alleged violation is not specific and stated with particularity so as to apprise the respondents of the nature and cause of the alleged violation. Legally, therefore, the disallowance is completely void for being violative of the constitutional guarantee of due process; and
4.
In the case of Binamira v. Garrucho, 188 SCRA 155, the Supreme Court held that the acts of department heads, unless reprobated or disapproved by the Chief Executive, performed and promulgated in the regular course of business are presumed valid and presumptively considered acts of the President of the Philippines.[8]
Countering the foregoing points raised in the request for reconsideration, the Department Auditor denied the request, thus: 1. That the expenses was for a public purpose. Yes, it may be granted that the expenses was for a public purpose, but it was different from the purpose for which the fund was created. Expenditures, as earlier pointed out, funded from the Capability Building Program are subject to compliance to the restrictions/conditions embodied in the Special Provisions of the General Appropriations Act of 1992. Section 37, P.D. 1177 provides that "All money appropriated for functions, activities, projects and programs shall be available solely for the specific purpose for which these are appropriated."(Underscoring supplied) 2. We believe that there is no prejudicial issue involved in this particular case that needs the pronouncement by the Courts. It is clearly stated in the Special Provisions of the DILG Appropriations of R.A. No. 7180 that the Capability Building Program Fund shall be used for local government and community capability building programs. Therefore the transfer and expenditures of the funds in the Office of the Deputy Executive Secretary has completely abandoned the raison d' etre for which the fund was established. Every expenditure or obligation authorized or incurred in violation of law shall be the personal liability of the persons who authorized the expenditure. There is no need for the officer or employee to misappropriate public funds but merely appropriating public funds for a purpose other than that authorized by law. (Underscoring supplied) 3. We beg to disagree to the Counsel's claim that the alleged violation was not specific and stated with particularity so as to apprise the clients of the nature and cause of the alleged violation. The grounds for our disallowance were specifically enumerated in our 3rd Indorsement dated May 25, 1992, to the FMS Director, this Department.
Sanchez vs. COA

4. The mere transfer of the fund from DILG to the Office of the Deputy Executive Secretary to defray the salaries of the personnel, office supplies, office rentals, foods and meals, etc. is already in violation of law. Section 84 (2) of P.D. 1445 provides that "Trust funds shall not be paid out of any public treasury or depository except in fulfillment of the purpose for which the trust was created or funds received, and upon authorization of the legislative body or head of any other agency of the government having control thereof, and subject to pertinent budget law, rules and regulations. (Underscoring supplied)[9]
Finding no reason to deviate from the findings of the Department Auditor, the COA affirmed the disallowance in its assailed COA Decision No. 96-654[10] dated 21 November 1996. It is worth noting at this juncture that while Commissioner Sofronio B. Ursal (Commissioner Ursal) signed the assailed Decision, he nonetheless submitted a dissenting opinion stating that the transfer of funds from the Fund to the Office of the Executive Secretary falls within the authority of the President to augment any item in the general appropriations law as provided in Sec. 25(5), Art. VI of the 1987 Constitution. Thus, he concludes that the transfer is deemed an act of the President. Further, the use of the Fund by the task force to implement local autonomy falls within the purpose for which the Fund was created. However, he adds that the individual disbursements made by the task force for such expenses as salaries, allowances, rentals, food and the like should be audited by the Auditor for the Office of the President in accordance with existing accounting and auditing rules.[11] Petitioners argue that the transfer of the questioned amount from the Fund of the DILG to the Office of the President was legal and that the Notice of Disallowance dated 29 May 1993 was without basis. They explain that the Capability Building Program which was financed by the Fund was administered by the DILG and was intended as a complementary resource to aid the DILG in its task of pursuing an intensified program of enhancing local government autonomy capabilities. It was pursuant to this goal that a task force was created to design programs, strategize and prepare modules for an effective program for local autonomy with the expenses therefor to be charged against the Fund. Thus, petitioners argue that the purpose of the task force was actually within the framework of the Special Provisions of R.A. No. 7180, and the transfer of funds to effectuate this purpose was not violative of the said law contrary to the Department Auditor's conclusion. Further, petitioners aver that the law did not prohibit the DILG from directly coordinating with the Office of the President in attaining the objectives of local autonomy. The Office of the Solicitor General (OSG) filed a Manifestation and Motion in Lieu of Comment[12] dated 19 January 1998, which it later disavowed, however, stating that the petition is meritorious. According to the OSG then, far from being categorically different from the purpose for which the Fund was created, the transfer of the amount in question complemented, if not enhanced, the DILG's program to promote local autonomy. The transfer of a portion of the Fund for the operational expenses of the task force to implement local autonomy did not therefore violate the Special Provisions of R.A. No. 7180. Because of the position initially taken by the OSG, the COA filed its own Comment[13]dated 16 March 1998, maintaining that it acted according to its constitutional mandate when it disallowed the disbursement considering that the transfer of funds from the DILG to the Office of the President was violative of the Special Provisions of R.A. No. 7180. The COA considers the Fund a trust fund which may not be paid out except in fulfillment of the purpose for which it was created and upon authorization of the head of agency and subject to budget law, rules and regulations. Petitioners filed their Reply[14] dated 9 March 2001. Thereafter, the parties were required to submit their respective memoranda in the Resolution[15] dated 12 February 2002. In compliance with this directive, the parties filed their memoranda[16] in reiteration of their respective positions.
Sanchez vs. COA

For further elucidation of the issues, the Court set the case for oral argument, crystallizing the decisive issues in this case as follows: (1) Whether there is legal basis for the transfer of funds of the Capability Building Program Fund appropriated in the 1992 General Appropriation Act from the Department of Interior and Local Government to the Office of the President; (2) Whether the conditions or requisites for the transfer of funds under the applicable law were present in this case; (3) Whether the Capability Building Program Fund is a trust fund, a special fund, a trust receipt or a regular appropriation; and finally (4) Whether the questioned disallowance by the Commission on Audit is valid.[17] The parties were required to simultaneously submit their memoranda in amplification of their arguments on the foregoing issues. Retracting its previous stance, the OSG avers in its Memorandum[18] dated 6 July 2005 that the transfer of funds from the DILG to the Office of the President has no legal basis and that COA's disallowance of the transfer is valid. According to the OSG, the creation of a task force to implement local autonomy, if one was necessary, should have been done through the Local Government Academy with the approval of its board of trustees in accordance with R.A. No. 7180. Moreover, Sec. 25(5), Art. VI of the Constitution authorizes the transfer of funds within the OP if made by the President for purposes of augmenting an item in the Office of the President. In this case, it was not the President but the Deputy Executive Secretary who caused the transfers and the latter was not shown to have been authorized by the President to do so. The OSG's Memorandum also brings to the surface several facts which had theretofore remained hidden. For instance, it was disclosed that the disallowed transfers were released without the submission of a work and financial plan supported by a detailed breakdown of the projects, activities and objects of expenditures proposed to be funded.[19] There was also no proper liquidation of the P600,000.00 cash advance made to Atty. Mendoza who, in addition, was not even an employee either of the DILG or the Office of the President.[20] In the absence of evidence of bad faith, malice or gross negligence, however, the OSG submits that petitioners may not be held civilly and personally liable for the disallowed expenditure. The COA, in its Memorandum[21] dated 18 July 2005, reiterates its position that there is no legal basis for the transfers in question because the Fund was meant to be implemented by the Local Government Academy. Further, transfer of funds under Sec. 25(5), Art. VI of the Constitution may be made only by the persons mentioned in the section and may not be re-delegated being already a delegated authority. Additionally, the funds transferred must come only from savings of the office in other items of its appropriation and must be used for other items in the appropriation of the same office. In this case, there were no savings from which augmentation can be taken because the releases of funds to the Office of the President were made at the beginning of the budget year 1992. The COA also posits that while the Fund is a regular appropriation, it partakes the nature of a trust fund because it was allocated for a specific purpose. Thus, it may be used only for the specific purpose for which it was created or the fund received. The COA concludes that petitioners should be held civilly and criminally liable for the disallowed expenditures. For their part, petitioners maintain in their Memorandum[22] that the transfer of funds was never repudiated by the President and that operational control over the amount transferred remained with the DILG as evidenced by the fact that liquidation was done by the latter and not by the Office of the President.
Sanchez vs. COA

Petitioners also insist that the Fund is a regular item of appropriation and not a trust fund because after the end of the calendar year, any unexpended amount will be reverted to the General Fund. We affirm the ruling of the COA. The COA is endowed with enough latitude to determine, prevent and disallow irregular, unnecessary, excessive, extravagant or unconscionable expenditures of government funds.[23] It has the power to ascertain whether public funds were utilized for the purpose for which they had been intended. The Court had therefore previously upheld the authority of the COA to disapprove payments which it finds excessive and disadvantageous to the Government; to determine the meaning of "public bidding" and when there is "failure" in the bidding; to disallow expenditures which it finds unnecessary according to its rules even if disallowance will mean discontinuance of foreign aid; to disallow a contract even after it has been executed and goods have been delivered.[24] Likewise, we sustained the findings of the COA disallowing the disbursements of the National Home Mortgage Finance Corporation for failure to submit certain documentary requirements and for being irregular and excessive. [25] We have also ruled that the final determination of the Department of Finance and the BIR as to a person's entitlement to an informer's reward is conclusive only upon the executive agencies concerned and not on the COA, the latter being an independent constitutional commission.[26] The COA is traditionally given free rein in the exercise of its constitutional duty to examine and audit expenditures of public funds especially those which are palpably beyond what is allowed by law. Verily, it is the general policy of the Court to sustain the decisions of administrative authorities, especially one which is constitutionally-created, not only on the basis of the doctrine of separation of powers but also for their presumed expertise in the laws they are entrusted to enforce.[27] It is, in fact, an oft-repeated rule that findings of administrative agencies are accorded not only respect but also finality when the decision and order are not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion.[28] It is only when the COA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, that this Court entertains a petition questioning its rulings.[29] We find no grave abuse of discretion on the part of the COA in issuing the assailed Decision as will be discussed hereafter. Petitioners have flip-flopped on whether an actual transfer of the disallowed amount had taken place. In response a pointed question during oral argument, counsel for petitioners stated that there was no transfer of even a centavo of the P600,000.00 to the Office of the President.[30] On the other hand, in their Memorandum[31] dated 28 August 2005, petitioners aver that "the transfer of funds was made by the DILG to the Office of the President, through the request of then Deputy Executive Secretary Dionisio de la Serna. The transfer of funds was never repudiated nor questioned by the President."[32] The OSG, on the other hand, unmistakably confirms the actual transfer in its Memorandum attaching the disbursement voucher and receipts covering the transfer of funds from the DILG to the Office of the President. The resolution of these divergent theories is critical. If, on one hand, there was no actual transfer of funds, the propriety of the disallowance would be evaluated on the basis of whether the purpose for which the fund was used was indeed violative of R.A. No. 7180. On the other hand, if there was an actual transfer of funds, the Court would have to ascertain whether the criteria laid out in Sec. 25(5), Art. VI of the 1987 Constitution had been met. In the following exchange between then Justice (now Chief Justice) Puno and COA Assistant Commissioner
Sanchez vs. COA

Raquel Habitan, the latter reiterated that petitioners have always stood pat on their argument that there was a transfer of funds but that the transfer was valid as it was for a public purpose: JUSTICE PUNO: May I go to the question of transfer, am I correct in assuming that this case was resolved by your office on the theory that the transfer of funds violated the provision of the Constitution and related laws? COMMISSIONER HABITAN: Yes, Your Honor. JUSTICE PUNO: Was the question of transfer an issue raised by the petitioners when this case was under litigation up to the time when it reached your office. In other words, did the petitioners ever raise the issue that there was no transfer of any funds involved in the case? COMMISSIONER HABITAN: Your Honor, in the motion for reconsideration of then Secretary Sarino when he requested reconsideration of disallowance he relied on the following grounds-that the transfer was for the operational expenses of an Ad Hoc Task Force for inter agency coordination implement local autonomy hence for a public purpose that was the number one ground for the motion for reconsideration for the disallowance, Your Honor. JUSTICE PUNO: But did they ever take the position that indeed there was no transfer of funds from the DILG to the Office of the President and then back, was that position taken by petitioner? COMMISSIONER HABITAN: But the records will show Your Honor that there was two (2) separate vouchers one for Three Hundred Thousand each which was actually disallowed by the COA, Your Honor. JUSTICE PUNO: No, I am asking you whether the petitioners ever took that position that there was no transfer of funds at all from the DILG to the Office of the President. I ask that question because I am confused by the change of answers of the counsel for the petitioners. So, I am asking that question whether the fact of transfer was a subject of litigation up to your office. COMMISSIONER HABITAN: Yes, Your Honor, I am reading the COA decision itself and in the motion for reconsideration of Secretary Sarino. It was one of the grounds relied upon, that the transfer was for the operational expenses. He tried to justify that the operational expenses of the Ad Hoc Task Force was for a public purpose. JUSTICE PUNO: He concedes that there was a transfer, but the defense was the validity of the transfer? COMMISSIONER HABITAN:
Sanchez vs. COA

Yes, Your Honor. JUSTICE PUNO: What is the test on whether there was a transfer of funds from one agency to another agency? Let us take for example, a situation where a Task Force is created and the task of that committee is subject that properly belongs in this case with the DILG and so the task force agreed that disbursements of money should be undertaken and controlled by the head of the DILG, would the fact of control of disbursement show that there was no transfer of funds? COMMISSIONER HABITAN: But they cannot erase the fact for the record of the case that there were two (2) separate vouchers as I said. JUSTICE PUNO: Exactly, I am asking you that question would the mere fact that disbursements were under the control of the DILG, would that lead to the conclusion that there was no transfer of funds from the DILG to the Office of the President? COMMISSIONER HABITAN: But the check, Your Honor, was in the name of the Task Force. So, evidently there was an actual transfer of the funds from DILG to the Office of the President pursuant to the Memorandum of Agreement creating the Task Force.[33] [Emphasis supplied] The theory that there was an actual transfer of funds but the same was for a public purpose has been at the core of petitioners' arguments since they requested reconsideration of the Notice of Disallowance dated 29 March 1993. Even their pleadings before the Court reveal an unwavering adherence to their theory that the transferred funds should not have been disallowed because they were used for a public purpose. Commissioner Ursal's dissent, which first brought to fore the opinion that the disallowed transfer was a valid exercise of the President's power to augment under Sec. 25(5), Art. VI of the 1987 Constitution, is therefore clearly just a gratuitous argument because petitioners themselves never justified the transfer as an exercise of the President's constitutional prerogative. At any rate, in order to finally lay this case to rest, we shall discuss whether the disallowed transfer satisfies the standard laid down for the augmentation from savings under Sec. 25(5), Art. VI of the 1987 Constitution. The General Provisions of R.A. No. 7180 provides that "[E]xcept by act of the Congress of the Philippines, no change or modification shall be made in the expenditure items authorized in this Act and other appropriations laws unless in cases of augmentations from savings in appropriations as authorized under Section 25(5) of Article VI of the Constitution."[34] Sec. 25(5), Art. VI of the 1987 Constitution, in turn, provides: Sec. 25(5) No law shall be passed authorizing any transfer of appropriations; However, the President, the President of the Senate, The Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. It is important to underscore the fact that the power to transfer savings under Sec. 25(5), Art. VI of the 1987 Constitution pertains exclusively to the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional
Sanchez vs. COA

Commissions and no other. In Philippine Constitution Association v. Enriquez,[35] the Court declared that individual members of Congress may only determine the necessity of the realignment of savings in the allotments for their operating expenses because they are in the best position to know whether there are savings available in some items and whether there are deficiencies in other items of their operating expenses that need augmentation. However, it is the Senate President and the Speaker of the House of Representatives who shall approve the realignment.[36] In the same case, the Court also ruled that the Chief of Staff of the Armed Forces of the Philippines may not be given authority to transfer funds under this article because the realignment of savings to augment items in the general appropriations law for the executive branch must and can be exercised only by the President pursuant to a specific law.[37] Parenthetically, petitioners fail to point out to the Court the specific law and provision thereof which authorizes the transfer of funds in this case. Thus, the submission that there was a valid transfer of funds within the Executive Department should be rejected as it overlooks the fact that the power and authority to transfer in this case was exercised not by the President but only at the instance of the Deputy Executive Secretary, not the Executive Secretary himself. Even if the DILG Secretary had corroborated the initiative of the Deputy Executive Secretary, it does not even appear that the matter was authorized by the President. More fundamentally, as will be shown later, even the President himself could not have validly authorized the transfer under the Constitution. The deliberations of the Constitutional Commission are instructive as regards the extent of the President's power to augment: MR. SARMENTO: I have one last question. Section 25, paragraph (5) authorizes the Chief Justice of the Supreme Court, the Speaker of the House of Representatives, the President, the President of the Senate to augment any item in the General Appropriations Law. Do we have a limit in terms of percentage as to how much they should augment any item in the General Appropriations Law? MR. AZCUNA: The limit is not in percentage but "from savings." So it is only to the extent of their savings.[38] The 1973 Constitution contained an identical provision: Sec. 16(5). No law shall be passed authorizing any transfer of appropriations, however, the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of constitutional commissions may by law be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. Construing this provision, the Court ruled in the pre-eminent case of Demetria v. Alba: [39] The prohibition to transfer an appropriation for one item to another was explicit and categorical under the 1973 Constitution. However, to afford the heads of the different branches of the government and those of the constitutional commissions considerable flexibility in the use of public funds and resources, the constitution allowed the enactment of a law authorizing the transfer of funds for the purpose of augmenting an item from savings in another item in the appropriation concerned. The leeway granted was thus limited. The purpose and conditions for which funds may be transferred were specified, i.e. transfer may be allowed for the purpose of augmenting an item and such transfer may be made only if there are savings from another item in the appropriation of the government branch or constitutional body. [Emphasis supplied] Thus, we declared unconstitutional par. 1, Sec. 44 of Presidential Decree No. 1177 which authorized the President "to transfer any fund, appropriated for the different departments, bureaus, offices and agencies of the Executive Department, which are included in the General Appropriations Act, to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment" because it unduly overextends the privilege granted under Sec. 16(5) of the 1973 Constitution.
Sanchez vs. COA
We ruled that the President cannot indiscriminately transfer funds from one department, bureau, office or agency of the Executive Department to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment, without regard to whether the funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose of augmenting the item to which the transfer is to be made.[40] R.A. 7180 contains a similar provision on the President's power to augment and provides the meaning of "savings" and "augmentation," thus: Sec. 17. Use of Savings. The President of the Philippines, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions under Article IX of the Constitution, the Ombudsman and the Commission on Human Rights are hereby authorized to augment any item in this Act for their respective offices from savings in other items of their respective appropriations. xxx Sec. 19. Meaning of Savings and Augmentation. Savings refer to portions or balances of any programmed appropriation free of any obligation or encumbrance still available after the satisfactory completion or unavoidable discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized, or arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay. Augmentation implies the existence in this Act of an item, project, activity or purpose with an appropriation which upon implementation or subsequent evaluation of needed resources is determined to be deficient. In no case, therefore, shall a non-existent item, project, activity, purpose or object of expenditure be funded by augmentation from savings or by the use of appropriations authorized otherwise in this act.[41] Clearly, there are two essential requisites in order that a transfer of appropriation with the corresponding funds may legally be effected. First, there must be savings in the programmed appropriation of the transferring agency. Second, there must be an existing item, project or activity with an appropriation in the receiving agency to which the savings will be transferred. Actual savings is a sine qua non to a valid transfer of funds from one government agency to another. The word "actual" denotes that something is real or substantial, orexists presently in fact as opposed to something which is merely theoretical, possible, potential or hypothetical.[42] As a case in point, the Chief Justice himself transfers funds only when there are actual savings, e.g., from unfilled positions in the Judiciary.[43] The thesis that savings may and should be presumed from the mere transfer of funds is plainly anathema to the doctrine laid down in Demetria v. Alba as it makes the prohibition against transfer of appropriations the general rule rather than the stringent exception the constitutional framers clearly intended it to be. It makes a mockery ofDemetria v. Alba as it would have the Court allow the mere expectancy of savings to be transferred. Contrary to another submission in this case, the President, Chief Justice, Senate President, and the heads of constitutional commissions need not first prove and declare the existence of savings before transferring funds, the Court in Philconsa v. Enriquez, supra, categorically declared that the Senate President and the Speaker of the House of Representatives, as the case may be, shall approve the realignment (of savings). However, "[B]efore giving their stamp of approval, these two officials will have to see to it that: (1) The funds to be realigned or transferred are actually savings in the items of expenditures from which the same are to be taken; and (2) The transfer or realignment is for the purpose of augmenting the items of expenditure to which said transfer or realignment is to be made." [44] As it is, the fact that the permissible transfers contemplated by Section 25(5), Article VI of the 1987
Sanchez vs. COA

Constitution would occur entirely within the framework of the executive, legislative, judiciary, or the constitutional commissions, already makes wanton and unmitigated malversation of public funds all too easy, without the Court abetting it by ruling that transfer of funds ipso facto denotes the existence of savings. Precisely, the restriction on the transfer of funds, and similar constitutional limitations such as the specification of purpose for special appropriations bill,[45] the restriction on disbursement of discretionary funds,[46] the conditions on the release of money from the Treasury,[47] among others, "were all safeguards designed to forestall abuses in the expenditure of public funds."[48] The following exchange between Mdme. Justice Sandoval-Gutierrez and counsel for petitioners inexorably reveals that petitioners had known that there were no savings in the DILG at the time of the questioned transfers, thus: JUSTICE GUTIERREZ: All Right, according to the law augmentation implies the existence of an item, project, activity or purpose with an appropriation upon which implementation or subsequent evaluation of needed resources is determined to be deficient, my question is--is there a funding in the task force to be augmented or was there insufficient funds in the task force to be augmented? ATTY. MADRIAGA: If Your Honors please, I am not privy to the appropriation for the Office of the President, but we know, Your Honor, is that these amount of Six Hundred Thousand Pesos was only to augment or to increase whatever funds perhaps would be under the Office of the President for such a gargantuan task as the implementation or preparation for the implementation of the Code, Your Honor. So, I am sorry but I don not have knowledge as to the appropriations of the Office of the President in regard to this type of activities, Your Honor. JUSTICE GUTIERREZ: In that case, Counsel, you cannot say categorically that the transfer is valid because you cannot inform the Court whether or not there was a need to augment and whether or not there was really a funding, a sufficient funding for the task force, is that right? ATTY. MADRIAGA: Yes, Your Honor. JUSTICE GUTIERREZ: Second requirement is that there must be actual savings in the item from which the same are to be taken, can you tell us now if you know for a fact that there were actual savings before the fund was transferred? ATTY. MADRIAGA: If Your Honor please, the transfer of funds was made at the start of the calendar year 1992. The General Appropriations Act, Republic Act 7180 took effect that year. So, I would surmise, Your Honors, so as of that time there was no savings as yet that was accumulated by the department but because of the exigency of the purpose, Your Honor, considering that the Department of Interior and Local Government had only two (2) months and twenty (20) days for the preparation of the implementation of the Local Government Code which was signed, as I said, on October 10, 1991 and which was supposed to become effective on January 1, 1992, there was the urgent need, Your Honor, to prepare and there was therefore that transfer of funds, Your Honor.
Sanchez vs. COA
JUSTICE GUTIERREZ: What you are saying right now is that actually there were no savings to be transferred? ATTY. MADRIAGA: As of that time, Your Honor. [Emphasis supplied][49] Further, the records of this case unmistakably point to the reality that there were no savings at the time of the questioned transfer. To begin with, the first disallowed voucher in the amount of P300,000.00 was paid under Check No. 160404 dated 31 January 1992. The records indicate that the second transfer occurred on 28 April 1992.[50] Presumably, the disallowed amount was remitted to and spent by the ad hoctask force within the first two quarters of fiscal year 1992.[51] There could not have been savings from the Fund on 31 January 1992 because the 1992 GAA took effect only on 1 January 1992 or 30 days before.[52] Obviously, the amount transferred from the Fund did not constitute savings as there were no such savings at the time of the transfer. It is preposterous to pronounce that savings already existed as early as 31 January 1992. It is even more ridiculous to claim that savings may be presumed from the mere transfer of funds.[53] The fact that the subsequent years' appropriations acts, i.e., the 1993 and 1994 GAA,[54] provided an appropriation for the Capability Building Program, moreover, signifies that there were no savings from the Fund from the prior year's appropriation in the 1992 GAA that could have been validly transferred. The appropriation for the Capability Building Program was presented in the 1992 GAA in the following manner:[55] ....
B. Locally-Funded Projects .... 4. Capability Building Program 75,000,000 75,000,000 Personal Services Maintenance and Other Operating Expenses Capital Outlays Total
It is worthy of note, therefore, that the 1992 GAA only provided an appropriation for maintenance and other operating expenses in the appropriation for the Capability Building Program, and not a single centavo for capital outlay or for personal services. Maintenance and other operating expenses cover traveling expense; communication services; repair and maintenance of government facilities; use, repairs and maintenance of government vehicles; transportation services; supplies and materials; rents; interests; grants, subsidies and contributions; awards and indemnities; loan repayments and sinking fund contributions; losses/depreciation/depletion; water, illumination and power service; social security benefits, rewards and other claims; auditing services; training and seminars; extraordinary and miscellaneous expenses; confidential and intelligence expenses; antiinsurgency/contingency/emergency expenses; taxes and other duties; trading/production; advertising and publication expenses; fidelity bond and insurance premiums; loss on foreign exchange; commitment fees/charges; and other services such as repairs and maintenance; printing and binding; subscription to periodicals and magazines; radiocast, telecast and documentary films; legal expenses; security and janitorial services and meal and transportation allowance.[56] Personal services, on the other hand, include the payment of salaries and wages; per diem compensation; social security insurance premium; overtime pay; and commutable allowances,[57] while capital outlays refer to appropriations for the purchase of goods and services, the benefits of which extend beyond the fiscal year and which add to the assets of government, including investments in the capital of government-owned or controlled corporations and their subsidiaries as well as investments in public utilities such as public markets and slaughterhouses.[58]
Sanchez vs. COA
Maintenance and operating expenses and personal services are classified as current operating expenditures or appropriations for the purchase of goods and services for current consumption or for benefits expected to terminate within the fiscal year.[59] By the nature of maintenance and operating expenses, savings may generally be determined at the end of the year, or earlier in case of completion, discontinuance or abandonment of the work for which the appropriation was authorized. In contrast, savings from personal services may generally be determined even at the opening of the fiscal year in case of unpaid compensation pertaining to vacant positions and leaves of absence without pay. It should be emphasized that the 1992 GAA did not provide an appropriation for personal services for the Capability Building Program. Savings from vacant positions which pertain to personal services, therefore, may not be considered savings from the Fund which may be transferred. It is odd that during oral argument, petitioners did not bother to assert to the Court that there was actual savings from the Fund which could have been transferred, prompting Justice (later Chief Justice) Panganiban to point out that petitioners should have ascertained the existence of actual savings lest the petition be dismissed as it is based on speculation. JUSTICE PANGANIBAN: So you still agree with the position of Justice Gutierrez that first, the first requirement is that there must be an existing item to be augmented. Meaning, there is insufficiency of funds in that item and then there are savings in another item in another department of government which can be transferred? ATTY. MADRIAGA: Yes, Your Honor. JUSTICE PANGANIBAN: But you are not aware of any savings, actual saving, it is just projected saving? ATTY. MADRIAGA: At that time, Your Honor, I said. JUSTICE PANGANIBAN: How about now? ATTY. MADRIAGA: Your Honor? Now was there an actual saving? I think the Commission on Audit would be in a better position to answer that, Your Honor, because they are in possession of the records (interrupted) JUSTICE PANGANIBAN: But when you filed your petition here you must have researched on this whether in fact there was savings to transfer.
Sanchez vs. COA
ATTY. MADRIAGA: As a matter of fact, Your Honor, (interrupted) JUSTICE PANGANIBAN: Otherwise, your petition would have been based on mere speculation?[60] From the foregoing, there is no question that there were no savings from the Fund at the time of the transfer. The Court cannot hold on to the disputable presumptions that official duty had been regularly performed and that the law had been obeyed. Furthermore, the 1992 GAA itself forecloses the use of savings from the Fund for purposes other than those for which it was established as specified under the law. The Special Provisions plainly state: Special Provisions 2. Capability Building Program for Local Personnel. The amount herein appropriated for the Capability Building Program for local personnel shall be used for local government and community capability building programs, such as training and technical assistance, with the necessary support for training materials, supplies and facilities: PROVIDED, That savings from the appropriation may be used to acquire equipment, except motor vehicles, in further support of the programs.
The Capability Building Program shall be implemented nationwide by the Department of the Interior and Local Government through the Local Government Academy and shall involve local officials and employees, including barangay officials, elected and appointed. The appropriations authorized herein shall be administered by the Department of the Interior and Local Government and shall be released upon submission of a work and financial plan supported by a detailed breakdown of the projects, activities and objects of expenditures proposed to be funded. Savings generated over and above the requirements prescribed in Section 18 of the General Provisions of this Act shall be made available for the Capability Building Program of the Department of the Interior and Local Government for local officials and employees, subject to Section 40 of P.D. 1177 (Sec. 35, Book VI of E.O. No. 292). Thus, assuming that there were savings from the appropriation for the Executive Department, the Capability Building Program should have been the recipient of any transfer thereof subject only to Section 18[61] of the 1992 GAA. The Fund should have been the beneficiary and not the benefactor. Moreover, such savings should have first been used to acquire equipment in furtherance of the Capability Building Program as was the clear intent of the law. As regards the requirement that there be an item to be augmented, which is also asine qua non like the first requirement on the existence of savings, there was no item for augmentation in the appropriation for the Office of the President at the time of the transfers in question. Augmentation denotes that an appropriation was determined to be deficient after the implementation of the project or activity for which an appropriation was made, or after an evaluation of the needed resources. To say that the existing items in the appropriation for the Office of the President already needed augmentation as early as 31 January 1992 is putting the cart before the horse. The task force spent the disallowed amount on behalf of the DILG allegedly to implement an item of appropriation of the DILG. This evinces the fact that there was no item in the appropriation for the Office of the President which the disallowed amount could have augmented. The ad hoc[62] nature of the task force whose operations the illegally transferred funds were supposed to
Sanchez vs. COA

finance precisely underscores the impermanence and transitoriness of the group and its activities. Hence, the ad hoc body itself is inconsistent with the notion that there was an existing item of appropriation which needed to be augmented. The absence of any item to be augmented starkly projects the illegality of the diversion of the funds and the profligate spending thereof. With the foregoing considerations, it is clear that no valid transfer of the Fund to the Office of the President could have occurred in this case as there was neither allegation nor proof that the amount transferred was savings or that the transfer was for the purpose of augmenting the item to which the transfer was made. Further, we find that the use of the transferred funds was not in accordance with the purposes laid down by the Special Provisions of R.A. 7180. The Capability Building Program was established pursuant to the mandate of local autonomy under the 1987 Constitution carried out by the Local Government Code of 1991. It was supposed to guide local communities to become self-reliant and capable of self-governance. In order to finance the program, R.A. No. 7180 set up the Fund explicitly declaring that it shall be used for local government and community capability building programs, such as training and technical assistance, with the necessary support for training materials, supplies and facilities. The Fund was to be administered by the DILG. Construed flexibly in the context of the general objective of attaining local autonomy, the stated purpose for the creation of the task force, which was to design programs, strategize and prepare modules for an effective program for local autonomy, would have fallen within the general intendment of the Fund. It is not enough, however, for petitioners to loosely claim that the amount was used for a public purpose or that it was used to advance local autonomy. It is imperative for them to show that the questioned amount was used directly in fulfillment of the purpose for which the Fund was created. In this case, there is no evidence on record as to how the task force was created, what its functions were and who composed it. Atty. Mendoza, the project director of the task force, does not even appear to have been an officer or employee of or connected in any capacity to either the DILG or the Office of the President, or at least to have been acting under the authority of either office. The proposal to create the task force was initiated by Atty. Mendoza in his personal capacity and on his own authority.[63] There is also no evidence to the effect that the amount taken from the Fund was actually spent for the task force's avowed objectives or that the purpose of the task force came to fruition. There is no indication at all whether the task force was actually able to design programs, strategize and prepare modules in furtherance of local autonomy using the Fund. What is apparent from the records is that the amount in question was spent to "defray salaries of personnel, office supplies, office rentals, foods and meals, etc."[64] The audit conducted by the DILG Auditor covered both the invalidity of the transfer of funds and the illegality of the use thereof. The Department Auditor concluded that the questioned amount was not used for the purposes enumerated in the Special Provisions of R.A. 7180. This evaluation was upheld by the COA itself also on both points. It said: Reviewing the grounds of this motion for reconsideration, this Commission finds no legal justification to deviate from the stand taken by the DILG Auditor. Appellants postulate that the transfer of funds was for a public purpose. However, it was categorically different from the purpose for which the fund was created. Expenditures funded from the capability building program are subject to compliance of the restrictions/conditions embodied in the special provisions of R.A. No. 7180 and Section 37 of P.D. 1177 also provides: All money appropriated for functions, activities, projects and programs shall be available solely for the
Sanchez vs. COA

specific purpose for which these were appropriated. (Underscoring supplied) It cannot also be validly argued that this case involves a prejudicial issue that necessitates prior determination by the courts. Thus, it is clearly stated in the special provisions of the DILG Appropriations of R.A. 7180 that the capability building program fund shall be used for local government and community capability building programs. Therefore, the transfer and expenditure of subject fund to the Office of the Executive Secretary has completely abandoned the reason or purpose for which the fund was established. It bears stressing that the mere appropriation of public funds for a purpose other than that authorized by law such as the subject transfer of funds from DILG to the Office of the Executive Secretary to defray the salaries of office personnel, supplies, rentals, foods and meals, etc. is already a violation of law. Section 84, par. 2, of P.D. 1445 provides, viz: Trust funds shall not be paid out of any public treasury or depository except in fulfillment of the purpose for which the trust was created or funds received, and upon authorization of the legislative body or head of any other agency of the government having control thereof and subject to pertinent budget law, rules and regulations. (Underscoring supplied) Appellants cannot dispute the fact that they were duly informed of the nature and cause of the alleged infraction. The constitutional guarantee of due process of law was strictly observed as the grounds for the disallowance were specifically enumerated in the 3rd Indorsement dated May 25, 1992 to the FMS Director, DILG. Lastly, the case of Binamira vs. Garrucho cited by the appellants refers to a petition for quo warranto filed by Mr. Ramon P. Binamira against then Secretary of Tourism Peter D. Garrucho for reinstatement to the Office of the General Manager of the Philippine Tourism Authority from which he claims to have been removed without cause in violation of his security of tenure. Appellants contend that pursuant to the aforementioned case, the transfer of funds from the DILG to the Office of the Executive Secretary was performed and promulgated in the regular course of business and is presumptively the act of the Chief Executive, unless disapproved or reprobated. This argument cannot prevail because what is disputed in the instant case is the expenditure of public funds which is subject to audit by this Commission as constitutionally mandated. Necessarily, for audit purposes, this Commission has the sole jurisdiction to determine whether or not the disbursement is in the first place legal and proper.[65] The fact that the audit was conducted by the DILG Auditor and not by the Auditor of the Office of the President is inconsequential because the findings and conclusion of the DILG Auditor were passed upon and upheld by the COA itself. In Olaguer v. Domingo,[66] the COA affirmed the ruling of the Resident Auditor for the National Home Mortgage Finance Corporation disallowing in audit the latter's disbursements for the purchase of a parcel of land under the Community Mortgage Program. We sustained the COA reiterating that in this jurisdiction, findings which have been affirmed and reaffirmed along the administrative hierarchy are generally conclusive on the courts. We held: With these substantial findings, we affirm the ruling of respondent Commission on Audit. As to the other claims raised by petitioners, suffice it to state that in this jurisdiction, courts will not interfere in matters which are addressed to the sound discretion of government agencies which are entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies. With all the more reason should this rule hold when, as in the instant case, the findings of respondent Razon have been affirmed and reaffirmed along the administrative hierarchy.[67] The ineluctable conclusion is that petitioners should be held personally liable for the disallowed disbursement by virtue of their position as public officials held accountable for public funds.[68] Sec. 103 of P.D. No. 1445 provides: Sec. 103. General liability for unlawful expenditures.--Expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor. Section 19 of the Manual of Certificate of Settlement and Balances states:
Sanchez vs. COA

19.1 The liability of public officers and other persons for audit disallowances shall be determined on the basis of: (a) the nature of the disallowance; (b) the duties, responsibilities or obligations of the officers/persons concerned; (c) the extent of their participation or involvement in the disallowed transaction; and (d) the amount of losses or damages suffered by the government thereby. The following are illustrative examples: xxxxxxxxx 19.1.3 Public officers who approve or authorize transactions involving the expenditure of government funds and uses of government properties shall be liable for all losses arising out of their negligence or failure to exercise the diligence of a good father of a family. xxxxxxxxx 19.2 The liability for audit charges shall be measured by the individual participation or involvement of persons in the charged transaction; i.e. public officers whose duties require the appraisal/assessment/collection of government revenues and receipts shall be liable for under-appraisal, under-assessment, and under-collection thereof." Petitioners Sarino, Sanchez, Regala, Barata and Agbayani, at the time of the disallowed transfers, were all responsible officers of the DILG being then the Department's Secretary, Undersecretary, Chief Accountant, Director, and Chief of the Management Division, respectively. Their participation, assent and approval were indispensable to the consummation of the illegal transfer of funds and render them accountable therefor. In view of the foregoing, we find no grave abuse of discretion on the part of the COA in rendering the assailed Decision. The constitutional body should even be lauded for its commitment in ensuring that public funds are not spent in a manner not strictly within the intendment of the law. WHEREFORE, the instant petition is DISMISSED and the assailed Decision of the Commission on Audit is AFFIRMED. No pronouncement as to costs. SO ORDERED.
Abakada Guro vs Purisima
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 166715 August 14, 2008
ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners, vs. HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents. DECISION CORONA, J.: This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act (RA) 93352 (Attrition Act of 2005). RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their revenue targets by providing a system of rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board).3 It covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of employment status.4 The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from the fund and allocated to the BIR and the BOC in proportion to their contribution in the excess collection of the targeted amount of tax revenue.5 The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the
Director General of the National Economic Development Authority (NEDA) or his/her Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file employees and a representative from the officials nominated by their recognized organization.6 Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the Fund; (2) set criteria and procedures for removing from the service officials and employees whose revenue collection falls short of the target; (3) terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions, including the issuance of rules and regulations and (6) submit an annual report to Congress.7 The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the implementing rules and regulations of RA 9335,8 to be approved by a Joint Congressional Oversight Committee created for such purpose.9 Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax reform legislation. They contend that, by establishing a system of rewards and incentives, the law "transform[s] the officials and employees of the BIR and the BOC into mercenaries and bounty hunters" as they will do their best only in consideration of such rewards. Thus, the system of rewards and incentives invites corruption and undermines the constitutionally mandated duty of these officials and employees to serve the people with utmost responsibility, integrity, loyalty and efficiency. Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis for classification or distinction as to why such a system should not apply to officials and employees of all other government agencies. In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials may be dismissed from the service if their revenue collections fall short of the target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to the President without sufficient standards. It will therefore be
easy for the President to fix an unrealistic and unattainable target in order to dismiss BIR or BOC personnel. Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon the enactment and approval of the law, the creation of the congressional oversight committee permits legislative participation in the implementation and enforcement of the law. In their comment, respondents, through the Office of the Solicitor General, question the petition for being premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim that will necessitate the exercise of this Courts jurisdiction. Nevertheless, respondents acknowledge that public policy requires the resolution of the constitutional issues involved in this case. They assert that the allegation that the reward system will breed mercenaries is mere speculation and does not suffice to invalidate the law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies the BIR and the BOC because the functions they perform are distinct from those of the other government agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the executive in the implementation of its provisions. Lastly, the creation of the congressional oversight committee under the law enhances, rather than violates, separation of powers. It ensures the fulfillment of the legislative policy and serves as a check to any over-accumulation of power on the part of the executive and the implementing agencies. After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have failed to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter be discussed. Actual Case And Ripeness An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is, the question must be ripe for adjudication. And a constitutional question is ripe for adjudication when the governmental act being challenged has a direct adverse effect on the individual challenging it.11 Thus, to be ripe for judicial adjudication, the petitioner must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision of the Court.12
In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere enactment of the law even without any further overt act,13 petitioners fail either to assert any specific and concrete legal claim or to demonstrate any direct adverse effect of the law on them. They are unable to show a personal stake in the outcome of this case or an injury to themselves. On this account, their petition is procedurally infirm. This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of constitutionality in favor of the law. And where an action of the legislative branch is alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.14 Accountability of Public Officers Section 1, Article 11 of the Constitution states: Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice, and lead modest lives. Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to the needs of the people they are called upon to serve. Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by providing a system of rewards and sanctions for the purpose of encouraging the officials and employees of the BIR and the BOC to exceed their revenue targets and optimize their revenue-generation capability and collection.15 The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere conjecture or denied in advance (as petitioners would have the Court do) specially in this case where it is an underlying principle to advance a declared public policy.
Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely speculative. A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one.16 To invalidate RA 9335 based on petitioners baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which approved it. Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional performance. A system of incentives for exceeding the set expectations of a public office is not anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public service of deserving government personnel. In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the customs as well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court said: The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in detecting fraudulent attempts to evade payment of duties and taxes. In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if it will be either the fruit of "bounty hunting or mercenary activity" or the product of the irregular performance of official duties. One of these precautionary measures is embodied in Section 8 of the law: SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their duties shall be held liable for any loss or injury suffered by any business establishment or taxpayer as a
result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence. Equal Protection Equality guaranteed under the equal protection clause is equality under the same conditions and among persons similarly situated; it is equality among equals, not similarity of treatment of persons who are classified based on substantial differences in relation to the object to be accomplished.19 When things or persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v. Elizalde Rope Workers Union,20 this Court declared: The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on
a reasonable foundation or rational basis and is not palpably arbitrary. In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the classification be based on scientific or marked differences of things or in their relation. Neither is it necessary that the classification be made with mathematical nicety. Hence, legislative classification may in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear.21 (emphasis supplied) The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the optimization of the revenue-generation capability and collection of the BIR and the BOC.23 Since the subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the common distinct primary function of generating revenues for the national government through the collection of taxes, customs duties, fees and charges. The BIR performs the following functions: Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which shall be headed by and subject to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by the President upon the recommendation of the Secretary [of the DOF], shall have the following functions: (1) Assess and collect all taxes, fees and charges and account for all revenues collected; (2) Exercise duly delegated police powers for the proper performance of its functions and duties; (3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and (5) Perform such other functions as may be provided by law.24 xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the following functions: Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject to the management and control of the Commissioner of Customs, who shall be appointed by the President upon the recommendation of the Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have the following functions: (1) Collect custom duties, taxes and the corresponding fees, charges and penalties; (2) Account for all customs revenues collected; (3) Exercise police authority for the enforcement of tariff and customs laws; (4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry; (5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports of entry; (6) Administer all legal requirements that are appropriate; (7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction; (8) Exercise supervision and control over its constituent units; (9) Perform such other functions as may be provided by law.25 xxx xxx xxx (emphasis supplied)
Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the instrumentalities through which the State exercises one of its great inherent functions taxation. Indubitably, such
substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection. Undue Delegation Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out or implemented by the delegate.26 It lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegates authority and prevent the delegation from running riot.27 To be sufficient, the standard must specify the limits of the delegates authority, announce the legislative policy and identify the conditions under which it is to be implemented.28 RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the law: SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of rewards and sanctions through the creation of a Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the purpose of encouraging their officials and employees to exceed their revenue targets. Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the President to fix revenue targets: SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter referred to as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in excess of their respective revenue targets of the year, as determined by the Development Budget and Coordinating Committee (DBCC), in the following percentages:
Excess of Collection of the Excess the Revenue Targets 30% or below More than 30% Percent (%) of the Excess Collection to Accrue to the Fund 15% 15% of the first 30% plus 20% of the
remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the year when the revenue collection target was exceeded and shall be released on the same fiscal year. Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by the President to Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies revenue targets as allocated among its revenue districts in the case of the BIR, and the collection districts in the case of the BOC. xxx xxx xxx (emphasis supplied)
Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to Congress.30 Thus, the determination of revenue targets does not rest solely on the President as it also undergoes the scrutiny of the DBCC. On the other hand, Section 7 specifies the limits of the Boards authority and identifies the conditions under which officials and employees whose revenue collection falls short of the target by at least 7.5% may be removed from the service: SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the following powers and functions: xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials and employees whose revenue collection falls short of the target by at least seven and a half percent (7.5%), with due consideration of all relevant factors affecting the level of collection as provided in the rules and regulations promulgated under this Act, subject to civil service laws, rules and regulations and compliance with substantive and procedural due process: Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as has no historical record of collection performance that can be used as basis for evaluation; and 2. Where the revenue or customs official or employee is a recent transferee in the middle of the period under consideration unless the transfer was due to nonperformance of revenue targets or potential nonperformance of revenue targets: Provided, however, That when the district or area of responsibility covered by revenue or customs officials or employees has suffered from economic difficulties brought about by natural calamities or force majeure or economic causes as may be determined by the Board, termination shall be considered only after careful and proper review by the Board. (c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That such decision shall be immediately executory: Provided, further, That the application of the criteria for the separation of an official or employee from service under this Act shall be without prejudice to the application of other relevant laws on accountability of public officers and employees, such as the Code of Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act; xxx xxx xxx (emphasis supplied)
Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from the service for causes other than those provided by law and only after due process is accorded the employee.31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue collection falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting the level of collection. This standard is analogous to inefficiency and incompetence in the performance of official duties, a ground for disciplinary action under civil service laws.32 The action for removal is also subject to civil service laws, rules and regulations and compliance with substantive and procedural due process. At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and equity," "public convenience and welfare" and
"simplicity, economy and welfare."33 In this case, the declared policy of optimization of the revenue-generation capability and collection of the BIR and the BOC is infused with public interest. Separation Of Powers Section 12 of RA 9335 provides: SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint Congressional Oversight Committee composed of seven Members from the Senate and seven Members from the House of Representatives. The Members from the Senate shall be appointed by the Senate President, with at least two senators representing the minority. The Members from the House of Representatives shall be appointed by the Speaker with at least two members representing the minority. After the Oversight Committee will have approved the implementing rules and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist. The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the law may be considered moot and academic. This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter). The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional oversight in Macalintal v. Commission on Elections34 is illuminating: Concept and bases of congressional oversight Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly
administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity with the congressional perception of public interest. The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inherent in a democratic system of government. x x x x x x x x x Over the years, Congress has invoked its oversight power with increased frequency to check the perceived "exponential accumulation of power" by the executive branch. By the beginning of the 20th century, Congress has delegated an enormous amount of legislative authority to the executive branch and the administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative agencies perform their functions within the authority delegated to them. x x x x x x xxx Categories of congressional oversight functions The acts done by Congress purportedly in the exercise of its oversight powers may be divided intothree categories, namely: scrutiny, investigation and supervision. a. Scrutiny Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its primary purpose is to determine economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny, Congress may request information and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency involved. xxx b. Congressional investigation While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional investigation involves a more intense digging of facts. The power xxx xxx
of Congress to conduct investigation is recognized by the 1987 Constitution under section 21, Article VI, xxx xxx xxx c. Legislative supervision The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional committee regarding executive operations in a given administrative area. While both congressional scrutiny and investigation involve inquiry into past executive branch actions in order to influence future executive branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that delegated authority. Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an agency to present the proposed regulations to Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress affirmatively approves it. Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative and the executive branches of government as it offers lawmakers a way to delegate vast power to the executive branch or to independent agencies while retaining the option to cancel particular exercise of such power without having to pass new legislation or to repeal existing law. They contend that this arrangement promotes democratic accountability as it provides legislative check on the activities of unelected administrative agencies. One proponent thus explains: It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and practice. It suffices to say that the complexities of modern government have often led Congress-whether by actual or perceived necessity- to legislate by declaring broad policy goals and general statutory standards,
leaving the choice of policy options to the discretion of an executive officer. Congress articulates legislative aims, but leaves their implementation to the judgment of parties who may or may not have participated in or agreed with the development of those aims. Consequently, absent safeguards, in many instances the reverse of our constitutional scheme could be effected: Congress proposes, the Executive disposes. One safeguard, of course, is the legislative power to enact new legislation or to change existing law. But without some means of overseeing post enactment activities of the executive branch, Congress would be unable to determine whether its policies have been implemented in accordance with legislative intent and thus whether legislative intervention is appropriate. Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives. They urge that any post-enactment measures undertaken by the legislative branch should be limited to scrutiny and investigation; any measure beyond that would undermine the separation of powers guaranteed by the Constitution. They contend that legislative veto constitutes an impermissible evasion of the Presidents veto authority and intrusion into the powers vested in the executive or judicial branches of government. Proponents counter that legislative veto enhances separation of powers as it prevents the executive branch and independent agencies from accumulating too much power. They submit that reporting requirements and congressional committee investigations allow Congress to scrutinize only the exercise of delegated law-making authority. They do not allow Congress to review executive proposals before they take effect and they do not afford the opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative veto permits Congress to participate prospectively in the approval or disapproval of "subordinate law" or those enacted by the executive branch pursuant to a delegation of authority by Congress. They further argue that legislative veto "is a necessary response by Congress to the accretion of policy control by forces outside its chambers." In an era of delegated authority, they point out that legislative veto "is the most efficient means Congress has yet devised to retain control over the evolution and implementation of its policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of legislative veto provisions. The case arose from the order of the immigration judge suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States House of Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the decision of the executive branch to allow a particular deportable alien to remain in the United States. The immigration judge reopened the deportation proceedings to implement the House order and the alien was ordered deported. The Board of Immigration Appeals dismissed the aliens appeal, holding that it had no power to declare unconstitutional an act of Congress. The United States Court of Appeals for Ninth Circuit held that the House was without constitutional authority to order the aliens deportation and that 244(c)(2) violated the constitutional doctrine on separation of powers. On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the issue of separation of powers and instead held that the provision violates the presentment clause and bicameralism. It held that the one-house veto was essentially legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of the Constitution requiring the passage by a majority of both Houses and presentment to the President. x x x x x x x x x Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal Trade Commission Improvement Act of 1980. Following this precedence, lower courts invalidated statutes containing legislative veto provisions although some of these provisions required the approval of both Houses of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions were not even exercised.35 (emphasis supplied) In Macalintal, given the concept and configuration of the power of congressional oversight and considering the nature and powers of a constitutional body like the Commission on Elections, the Court struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only to monitor and evaluate the implementation of the said law but also to
review, revise, amend and approve the IRR promulgated by the Commission on Elections. The Court held that these functions infringed on the constitutional independence of the Commission on Elections.36 With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither necessarily constitutes an encroachment on the executive power to implement laws nor undermines the constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a democratic system of government. It may in fact even enhance the separation of powers as it prevents the over-accumulation of power in the executive branch. However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution imposes two basic and related constraints on Congress.37 It may not vest itself, any of its committees or its members with either executive or judicial power.38 And, when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under the Constitution,39 including the procedure for enactment of laws and presentment. Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following: (1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation40 and (2) investigation and monitoring41 of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.42 Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this class. Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect. As such, a legislative veto in the form of a
congressional oversight committee is in the form of an inward-turning delegation designed to attach a congressional leash (other than through scrutiny and investigation) to an agency to which Congress has by law initially delegated broad powers.43It radically changes the design or structure of the Constitutions diagram of power as it entrusts to Congress a direct role in enforcing, applying or implementing its own laws.44 Congress has two options when enacting legislation to define national policy within the broad horizons of its legislative competence.45 It can itself formulate the details or it can assign to the executive branch the responsibility for making necessary managerial decisions in conformity with those standards.46 In the latter case, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature.47 Thus, what is left for the executive branch or the concerned administrative agency when it formulates rules and regulations implementing the law is to fill up details (supplementary rule-making) or ascertain facts necessary to bring the law into actual operation (contingent rule-making).48 Administrative regulations enacted by administrative agencies to implement and interpret the law which they are entrusted to enforce have the force of law and are entitled to respect.49 Such rules and regulations partake of the nature of a statute50 and are just as binding as if they have been written in the statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality and legality until they are set aside with finality in an appropriate case by a competent court.51 Congress, in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting them to its stamp of approval without disturbing the calculated balance of powers established by the Constitution. In exercising discretion to approve or disapprove the IRR based on a determination of whether or not they conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power exclusively vested in this Court by the Constitution. Considered Opinion of Mr. Justice Dante O. Tinga Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule on presentment.52 Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. (emphasis supplied) Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested in Congress which consists of two chambers, the Senate and the House of Representatives. A valid exercise of legislative power requires the act of both chambers. Corrollarily, it can be exercised neither solely by one of the two chambers nor by a committee of either or both chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative veto and a congressional committee legislative veto are invalid. Additionally, Section 27(1), Article VI of the Constitution provides: Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it, otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis supplied) Every bill passed by Congress must be presented to the President for approval or veto. In the absence of presentment to the President, no bill passed by Congress can become a law. In this sense, law-making under the Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto is a valid legislative act with the force of law, it cannot take effect without such presentment even if approved by both chambers of Congress. In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of Congress.54 Second, it must be presented to and approved by the President.55 As summarized by Justice Isagani Cruz56 and Fr.
Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills: A bill is introduced by any member of the House of Representatives or the Senate except for some measures that must originate only in the former chamber. The first reading involves only a reading of the number and title of the measure and its referral by the Senate President or the Speaker to the proper committee for study. The bill may be "killed" in the committee or it may be recommended for approval, with or without amendments, sometimes after public hearings are first held thereon. If there are other bills of the same nature or purpose, they may all be consolidated into one bill under common authorship or as a committee bill. Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its entirety, scrutinized, debated upon and amended when desired. The second reading is the most important stage in the passage of a bill. The bill as approved on second reading is printed in its final form and copies thereof are distributed at least three days before the third reading. On the third reading, the members merely register their votes and explain them if they are allowed by the rules. No further debate is allowed. Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three readings. If there are differences between the versions approved by the two chambers, a conference committee58 representing both Houses will draft a compromise measure that if ratified by the Senate and the House of Representatives will then be submitted to the President for his consideration. The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the signatures of the Senate President, the Speaker, and the Secretaries of their respective chambers59 The Presidents role in law-making.
The final step is submission to the President for approval. Once approved, it takes effect as law after the required publication.60 Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient standards established in the said law, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of the legislature when it becomes effective because it is only upon effectivity of the statute that legal rights and obligations become available to those entitled by the language of the statute. Subject to the indispensable requisite of publication under the due process clause,61 the determination as to when a law takes effect is wholly the prerogative of Congress.62 As such, it is only upon its effectivity that a law may be executed and the executive branch acquires the duties and powers to execute the said law. Before that point, the role of the executive branch, particularly of the President, is limited to approving or vetoing the law.63 From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the implementing rules of a law after it has already taken effect shall be unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling made by the members of the executive branch charged with the implementation of the law. Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be similar provisions of other laws that may be invalidated for failure to pass this standard, the Court refrains from invalidating them wholesale but will do so at the proper time when an appropriate case assailing those provisions is brought before us.64 The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the other provisions of the law? Will it render the entire law unconstitutional? No. Section 13 of RA 9335 provides: SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent court, the remainder of this Act or any provision
not affected by such declaration of invalidity shall remain in force and effect. In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules: The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a separability clause in a statute creates the presumption that the legislature intended separability, rather than complete nullity of the statute. To justify this result, the valid portion must be so far independent of the invalid portion that it is fair to presume that the legislature would have enacted it by itself if it had supposed that it could not constitutionally enact the other. Enough must remain to make a complete, intelligible and valid statute, which carries out the legislative intent. x x x The exception to the general rule is that when the parts of a statute are so mutually dependent and connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, the nullity of one part will vitiate the rest. In making the parts of the statute dependent, conditional, or connected with one another, the legislature intended the statute to be carried out as a whole and would not have enacted it if one part is void, in which case if some parts are unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with them. The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid provision from the other provisions so that the latter may continue in force and effect. The valid portions can stand independently of the invalid section. Without Section 12, the remaining provisions still constitute a complete, intelligible and valid law which carries out the legislative intent to optimize the revenue-generation capability and collection of the BIR and the BOC by providing for a system of rewards and sanctions through the Rewards and Incentives Fund and a Revenue Performance Evaluation Board. To be effective, administrative rules and regulations must be published in full if their purpose is to enforce or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30, 2006 in two newspapers of general circulation66 and became effective 15 days
thereafter.67 Until and unless the contrary is shown, the IRR are presumed valid and effective even without the approval of the Joint Congressional Oversight Committee. WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional Oversight Committee to approve the implementing rules and regulations of the law is declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in force and effect. SO ORDERED. Republic of the Philippines SUPREME COURT Manila G.R. No. 166715 August 14, 2008
(ABAKADA GURO Party List, et al. v. Hon. Cesar V. Purisima, et. al) CONCURRING OPINION TINGA, J.: I join Justice Coronas lucid opinion one of the more legally significant decisions of this Court of recent years because it concludes for the first time that legislative vetoes are impermissible in this jurisdiction. I fully concur with the majoritys reasoning for declaring legislative veto as invalid. Yet even as the ponencia aligns with most of my views, I write separately to fully explain my viewpoint. I. The controversy rests on the so-called "legislative veto", defined by Tribe as "measures allowing [Congress], or one of its Houses or committees, to review and revoke the actions of federal agencies and executive departments."1 Our Constitution specifically neither prohibits nor allows legislative vetoes, unlike presidential vetoes, which are formally authorized under Section 27, Article VI. Until today, Court has likewise declined so far to pass judgment on the constitutionality of a legislative veto.2
The Court is unanimous that a legislative veto, such as that contained in Section 12 of Rep. Act No. 9335 is unconstitutional. Such a ruling would be of momentous consequence, not only because the issue has never been settled before, but also because many of our statutes incorporate a similarly worded provision that empowers members of Congress to approve the Implementing Rules of various particular laws. Moreover, the invalidation of legislative vetoes will send a definite signal to Congress that its current understanding of the extent of legislative powers is awry. Concededly, our ruling will greatly affect the workings of the legislative branch of government. It would thus be intellectually honest to also consider the question from the perspective of that branch which is the branch most affected by that ruling. Of course, the perspective of the executive should be reckoned with as well since it has traditionally inveighed against legislative vetoes. Still, if we are to consider the congressional perspective of the question, there will emerge important nuances to the question that should dissuade against any simplistic analysis of the issue. II. I have previously intimated that the President, in chartering the extent of his plenary powers, may be accorded a degree of flexibility for so long as he is not bound by any specific constitutional proscription. That same degree of deference should be extended to Congress as well. Thus, I wish to inquire into whether there is a constitutionally justifiable means to affirm legislative vetoes. The emergence of the legislative veto in the United States coincided with the decline of the non-delegation doctrine, which barred Congress from delegating its law-making powers elsewhere.3 Modern jurisprudence has authorized the delegation of lawmaking powers to administrative agencies, and there are resulting concerns that there is no constitutional assurance that the agencies are responsive to the peoples will.4 From that framework, the legislative veto can be seen as a means of limiting agency rule-making authority by lodging final control over the implementing rules to Congress. "But instead of controlling agency policy in advance by laying out a roadmap in the statute creating the agency, Congress now proposes to control policy as it develops in notice-and-comment rulemaking, after the agencys expert staff and interested members of the public have had an opportunity to assist in its formation."5 It is a negative check by Congress on policies proposed by the agencies, and not a means for making policy directly.6
From the perspective of Congress, the legislative veto affords maximum consideration to the plenary power of legislation, as it bolsters assurances that the legislative policy embodied in the statute will be faithfully executed upon its implementation. The faithful execution of the laws of the land is a constitutional obligation imposed on the President7, yet as a matter of practice, there could be a difference of opinion between the executive and legislative branches as to the meaning of the law. The clash may be especially telling if the President and Congress are politically hostile with each other, and it bears notice that the legislative veto in the United States became especially popular beginning in the early 1970s, when the ties between the Democratic-controlled Congress and the Republican President Richard Nixon were especially frayed.8 More recently, the current U.S. President Bush has had a penchant of attaching "signing statements" to legislation he has approved, such statements indicating his own understanding of the bill he is signing into law. The legislative veto, as a practical matter, allows Congress to prevent a countervailing attempt by the executive branch to implement a law in a manner contrary to the legislative intent. There is nothing obnoxious about the policy considerations behind the legislative veto. Since the courts, in case of conflict, will uphold legislative intent over the executive interpretation of a law, the legislative veto could ensure the same judicially-confirmed result without need of elevating the clash before the courts. The exercise of the legislative veto could also allow both branches to operate within the grayer areas of their respective constitutional functions without having to resort to the judicial resolution of their potentially competing claims. As the future U.S. Supreme Court Justice Stephen Breyer once wrote: The [legislative] veto sometimes offers a compromise of important substantive conflicts embedded deeply in the Constitution. How are we to reconcile the Constitutions grant to Congress of the power to declare war with its grant to the President of authority over the Armed Forces as their Commander in Chief? The War Powers Act approaches the problem, in part, by declaring that the President cannot maintain an armed conflict for longer than ninety days if both Houses of Congress enact a resolution of disapproval. Similar vetoes are embedded in laws authorizing the President to exercise various economic powers during times of "national emergency". To take another example, how are we to reconcile article Is grant to Congress of the power to appropriate money with article IIs grant to the President of the power to supervise its expenditure? Must the President spend all that Congress appropriates?
Congress has addressed this conflict, authorizing the President to defer certain expenditures subject to a legislative veto.9 There are practical demerits imputed as well to the legislative veto, such as the delay in the implementation of the law that may ensue with requiring congressional approval of the implementing rules.10 Yet the question must ultimately rest not on the convenience or wisdom of the legislative veto device, but on whether it is constitutionally permissible. In 1983, the United States Supreme Court struck a decisive blow against the legislative veto in INS v. Chadha11, a ruling which essentially held the practice as unconstitutional. It appears that the foremost consideration of the majority opinion in Chadha were the issues of bicameralism and presentment, as discussed by the Chief Justice in his Separate Opinion in Macalintal v. COMELEC12. The twin issues of presentment and bicameralism would especially come to fore with respect to the Joint Congressional Oversight Committee under Rep. Act No. 9335, composed as it is by seven Members from the Senate and seven Members from the House of Representatives.13 Chadha emphasized that the bills passed by the U.S. Congress must be presented for approval to the President of the United States in order that they may become law.14 Section 27(1), Article VI of our Constitution imposes a similar presentment requirement. Chadha also noted that a bill must be concurred in by a majority of both Houses of Congress. Under our Constitution, Congress consists of a House of Representatives and a Senate, and the underlying uncontroverted implication is that both Houses must concur to the bill before it can become law. Assuming that the approval of the Implementing Rules to Rep. Act No. 9335 by seven Members from each House of Congress is a legislative act, such act fails either the presentment or bicameralism requirement. Such approval is neither presented to the President of the Philippines for consent, nor concurred in by a majority of either House of Congress. Yet with respect to the implications of Chadha on the principle of separation of powers, there are critical informed comments against that decision. Chadha involved the statutory authority of either House of Congress to disapprove the decision of the executive branch to allow a deportable alien to remain in the United States. The majority had characterized such disapproval as a legislative act, since it "had the purpose and effect of altering the legal rights, duties and relations of persons".15 Yet that emphasis "on the labels of legislative, executive and judicial" was criticized as "provid[ing] the rhetorical ammunition for a variety of cases seeking judicial reassessment of
the constitutionality not only of the great number of statutes that have incorporated some kind of legislative veto mechanism, but of regulatory statutes in general that sought to delegate legislative, executive and judicial power, and various combinations thereof, to the unelected officials that run the various federal agencies."16 Fisher presents a veritable laundry list of criticisms of the Chadha reasoning, replete with accusations that the analysis employed on separation of powers detracted from the intent of the Framers, resulting in giving the "executive branch a one-sided advantage in an accommodation that was meant to be a careful balancing of executive and legislative interests".17 He further observed: The Courts misreading of history and congressional procedures has produced some strange results. Its theory of government is too much at odds with the practices developed over a period of decades by the political branches. Neither administrators nor congressmen want the static model proferred by the Court. The conditions that spawned the legislative veto a half century ago have not disappeared. Executive officials still want substantial latitude in administering delegated authority; legislators still insist on maintaining control without having to pass another law. The executive and legislative branches will, therefore develop substitutes to serve as the functional equivalent of the legislative veto. Forms will change but not power relationships and the need for quid pro quo.18 And Tribe himself finds flaw in the Chadha analysis of what constituted a legislative act: And why, precisely, did the veto of the suspension of Chadhas deportation have to be deemed legislative? It was "essentially legislative," according to the Court, because it "had the purpose and effect of altering the legal rights, duties and relations of persons outside the legislative branch". Without Congress exercise of the legislative veto in his case, Chadha would have remained in America; without the veto provision in the immigration statute, the change in Chadhas legal status could have been wrought only be legislation requiring his deportation. The difficulty with this analysis is that the same observations apply with equal validity to nearly all exercises of delegated authority, whether by a House of Congress or by an executive department or an administrative agency. Both through rulemaking and through case-by-case adjudication, exercises of delegated
authority change legal rights and privileges no less than do full-fledged laws. There was perhaps less need than the Court perceived to squeeze the legislative veto into one of the three pigeonholes envisioned by the Framers. Even if Congress action had been deemed "executive" in nature, it presumably would have been unconstitutional, since Congress may make, but not execute the laws. And if the legislative veto had been deemed "judicial," it would still have violated the separation of powers, as Justice Powell recognized in his concurring opinion.19 The majority in Chadha did not address the reality that the U.S. Congress had relied on the legislative veto device for over five decades20, or for that matter, the valid concerns over the executive usurpation of legislative prerogatives that led to the invention of the veto as a countervailing measure. Justice Byron White relied extensively on these concerns in his dissenting opinion in Chadha. Nonetheless, the invalidation of the legislative veto in Chadha has caused serious discussion as to alternative constitutional means through which Congress could still ensure that its legislative intentions would not be countermanded by the executive branch. On one extreme, a Republican congressman, Nick Smith of Michigan, filed a bill requiring that significant new regulations adopted by administrative agencies be approved by a joint resolution of Congress before they would become effective.21 Less constitutionally controversial perhaps were the suggestions of Justice Breyer in remarks he made afterChadha was decided. He explained that "Congress unquestionably retains a host of traditional weapons in its legislative and political arsenal that can accomplish some of the vetos objectives."22 These include the power to provide that legislation delegating authority to the executive expires every so often. To continue to exercise that authority, the executive would have to seek congressional approval, at which point past agency behavior that Congress disliked would become the subject of serious debate. Moreover, Congress might tailor its statutes more specifically, limiting executive power. Further, Congress can require the President, before taking action, to consult with congressional representatives whose views would carry significant political weight. Additionally, Congress can delay implementation of an executive action (as it does when the Supreme Court promulgates rules of civil procedure) until Congress has had time to consider it an to enact legislation preventing the action from taking effect. Finally, each year
Congress considers the agencys budget. If a significant group of legislators strongly opposes a particular agency decision, it might well succeed in including a sentence in the appropriations bill denying the agency funds to enforce that decision.23 I raise these points because even with the invalidation of the legislative veto, Congress need not simply yield to the executive branch. The invalidation of the legislative veto can be mistakenly perceived as signal by the executive branch that it can, in the guise of rule-making power, adopt measures not authorized or even forbidden in the enabling legislation. If that happens, undue weight will be shifted to the executive branch, much like what had happened when former President Marcos exercised both executive and legislative powers. One might correctly argue that the judicial branch may still exercise corrective relief against such unauthorized exercise by the executive24, yet the relief may not come for years to come, considering the inherently deliberative judicial process. I do believe that there is a constitutionally sound mechanism through which Congress may validly influence the approval of a laws Implementing Rules. Section 12 of Rep. Act No. 9335 may not be such a means, but I maintain that it would be highly useful for the Court to explain how this can be accomplished. In this light, I submit the following proposed framework for invalidating the legislative veto while recognizing the pre-eminent congressional prerogative in defining the manner how legislation is to be implemented. III. We can consider that in the enactment and implementation of a law, there is a legislative phase and an executive phase. The legislative phase encompasses the period from the initiation of a bill in Congress until it becomes effective as a law. On the other hand, the executive phase begins the moment the law is effective and falls within the capacity of the executive branch to enforce. Notably, as such, it is only upon the effectivity of the statute that legal rights and obligations become available to those entitled by the language of the statute. Now, subject to the indispensable requisite of publication under the due process clause,25 the determination as to when a law takes effect is wholly the prerogative of Congress.26 As such, it is only upon effectivity that the law may be executed, and the executive branch acquires the duties and powers to execute that law. Before that point, the role of the executive branch, particularly the President, is limited to signing or vetoing the law. All other
powers of government that attach to the proposed law are exercised exclusively by Congress and are hence, legislative in character. In fact, the United States Supreme Court, speaking through Justice Black, has gone as far as to hold that the Constitution "limits [the Presidents] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad."27 It is viable to hold that any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law after the execution phase has begun violates the principle of separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the Implementing Rules after the law has already taken effect is unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling made by those members of the executive branch charged with the implementation of the law. This time or phase demarcation not only affords a convenient yardstick by which to assess the constitutionality of a legislated role for Congress vis--vis a law, it also hews to the proper allocation of governmental powers. Again, the exercise of executive powers relative to a statute can only emanate after the effectivity of the law, since before that point, said law cannot be executed or enforced. Until a law becomes effective, there are no executive functions attached to the law. Of course, following this rationale, Section 12 of Rep. Act No. 9335 will have to be invalidated. To cite one outstanding example of what else would be invalidated as a result is the Joint Congressional Power Commission established in the EPIRA (Rep. Act No. 9136), where the Commission composed of several members of Congress exercises a continuing role in overseeing the implementation of the EPIRA.28 The functions of the Joint Congressional Power Commission are exercised in the execution phase, and thus beyond the pale of legislative power. There are many other provisions in our laws, such as those similar to Section 12 of Rep. Act No. 9335, that will similarly not pass muster after this ruling, and the Court will have to reckon with the real problem as to whether this decision effectively nullifies those provisions as well. Nonetheless, the Court need not invalidate those provisions in other laws yet and await the appropriate cases to do so, similar to the approach previously taken on the invalidation of municipalities created by the President in Pelaez v. Auditor General.29 IV.
I seriously disagree with Justice Carpios assertion that the power to formulate or adopt implementing rules inheres in the executive function. That power is a legislative function traditionally delegated by Congress to the executive branch. The ponencia satisfactorily asserts this point through its Footnote No. 63, and I need not belabor it. One option for congressional control over executive action is to be very specific and limiting in the delegation of power to agencies, so that their rulemaking power will in turn be limited.30 The power to make rules and regulation is that kind of legislative power which may be delegated.31 In practice, the United States Congress has engaged frequently in broad delegations that in effect require agencies to make specific sub-rules i.e., to exercise legislative power.32 This practice has drawn some criticism that power is now concentrated in the executive branch and that it is thus necessary to restore Congress to its original status of preeminence.33 The growth of an enormous national bureaucracy, operating for the most part within the executive branch, may have fundamentally altered the original constitutional framework and requires some sort of response if the original constitutional concerns are to be satisfied.34 Section 12 of Rep. Act No. 9335, or any other provision of law granting components of the executive branch the power to formulate implementing rules, is a delegation of legislative power belonging to Congress to the executive branch. Congress itself has the power to formulate those particular rules and incorporate them in the law itself. What I believe Congress is precluded from doing is to exercise such power after the law has taken effect, in other words, after the execution phase has begun. Unless such a limitation were laid down, there would ensue undue encroachment by Congress in the exercise of legislative power. This delegable rule-making power may be classified into two types: (1) rules intended to regulate the internal management of the agencies themselves; and (2) rules supplementing a statute and intended to affect persons and entities outside the government made subject to agency regulation.35 Either case, the power of the executive branch to promulgate such rules springs from legislative delegation. In the Philippines, the power of executive officials to enact rules to regulate the internal management of executive departments was specifically allocated to them by a statute, the Administrative Code of 1987, promulgated by President Aquino in the exercise of her then extant legislative powers. With respect to supplementary rules to particular legislation, the power of executive officials to formulate such rules derives
from the legislation itself. But in no case does such power emanate actually from inherent executive power. The rule need not be hard and fast. We may as well pay heed to Blackstones practical observation that the "manner, time and circumstances of putting laws in execution must frequently be left to the discretion of the executive magistrates".36 But by and large, any problem left by the absence of clear and explicit statutory language is avoided in turn by the statutory delegation of legislative power to executive officials to vest them sufficient discretion to fill in the details.37 We thus cannot detract from the fundamental principle that rule-making power is legislative in character and exercised by executive officials only upon a statutory delegation of legislative power. As Fisher summarizes the peculiar dynamic: Presidents are obligated under the Constitution to take care that the laws be "faithfully executed." The often conflicting and ambiguous passages within a law must be interpreted by executive officials to construct the purpose and intent of Congress. As important as intent is the extent to which a law is carried out. President Taft once remarked, "Let anyone make the laws of the country, if I can construe them." To carry out the laws, administrators issue rules and regulations of their own. The courts long ago appreciated this need. Rules and regulations "must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority. Current law authorizes the head of an executive department or military department to prescribe regulations "for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. These duties, primarily of a "housekeeping" nature, relate only distantly to the citizenry. Many regulations, however, bear directly on the public. It is here that administrative legislation must be restricted in its scope and application. Regulations are not supposed to be a substitute for the general policymaking 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. Agency
rulemaking must rest on authority granted directly or indirectly by Congress.38 The Courts rightful rejection of Justice Carpios premise that the power of the President of promulgate Implementing Rules and Regulations is inherently executive provides a necessary clarification that is critical to the understanding of the Courts ruling today. Had Justice Carpios position been adopted by the Court, the result would have been a presidency much stronger than the Constitution envisioned. Acceding to the President the power to craft Implementing Rules to legislation even if Congress specifically withholds such power to the Chief Executive would have upset the finely measured schematic of balanced powers, to the benefit of the President. Fortunately, with the disavowal of that theory, greater consideration is accorded to legislative prerogatives without compromising the important functions of the presidency. V. Thusly, there is nothing inherently unconstitutional in congressional participation in the formulation of implementing rules of legislation since that power is legislative in character. Yet there still are multiple roadblocks impeding a constitutionally valid exercise of that prerogative by Congress. The matters of bicameralism and presentment, as expounded in Chadha, are hurdles which I submit should bind the Philippine Congress as it exercises its legislative functions. Section 12 of Rep. Act No. 9335 can be struck down on that ground alone.39 Moreover, imposing a rule barring a legislative role in the implementation of a law after the statutes effectivity will sufficiently preserve the integrity of our system of separation of powers. At the same time, the concerns of Congress that may have animated the rise of the legislative veto should not be disrespected by simply raising formalistic barriers against them. In practice, the legislative veto is an effective check against abuses by the executive branch. The end may not justify unconstitutional means, yet we should leave ample room for Congress to be able to address such concerns within broad constitutional parameters. There are a myriad of creative ways by which Congress may influence the formulation of Implementing Rules without offending the Constitution. If there are especially problematic areas in the law itself which Congress is not minded to leave any room for interpretative discretion by executive officials, then the provision involved can be crafted with such specificity to preclude alternative interpretations. At the same time, commonly, legislators and their staffs may lack the expertise to draft specific language.40 Speaking from my
own legislative experience, it is in the drafting of the Implementing Rules, rather than in the statute itself, that the particular expertise of the agency officials and experts tasked with the implementation of the law become especially vital. Also, Congress can dictate which particular executive officials will draft the implementing rules, prescribe legal or factual standards that must be taken into account by such drafters, or otherwise impose requirements or limitations which such drafters are bound to comply with. Again, because the power to draft implementing rules is delegated legislative power, its exercise must be within the confines of the authority charted by Congress. And because executive functions cannot commence until after the effectivity of the law, Congress may very well adopt creative but constitutional measures that suspend the effectivity of the law until implementing rules to its liking are crafted. There is nothing unconstitutional with suspending the effectivity of laws pending the occurrence of a stipulated condition. "[I]t is not always essential that a legislative act should be a completed statute which must in any event take effect as a law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event."41 The requirements of bicameralism and especially presentment may pose insurmountable hurdles to a provision that plainly suspends the effectivity of a law pending approval by Congress or some of its members of the implementing rules.42 At the same time, it should be recognized that Congress does have the prerogative to participate in the drafting of the rules, and if it finds a means to do so before the execution phase has begun, without offending bicameralism or presentment, such means may be upheld. DANTE O. TINGA Associate Justice

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