MA. CAROLINA P. ARAULLO ET AL. v. BENIGNO SIMEON C. AQUINO III ET AL., G.R. NO.

209287, July 1, 2014

In a Decision dated July 1, 2014, the Supreme Court partially granted the consolidated petitions for certiorari and
prohibition and declared the following acts and practices under the Disbursement Acceleration Program (DAP),
National Budget Circular No. 541 and related executive issuances unconstitutional for violating Section 25(5),
Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn
unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and
without complying with the statutory definition of savings contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside
the Executive; and
(c) The funding of projects, activities and programs that were not covered by any appropriation in the General
Appropriations Acts.
The Court further declared void the use of unprogrammed funds despite the absence of a certification by the National
Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided
in the relevant General Appropriations Acts (GAAs).
Remedial law; Certiorari and prohibition. The remedies of certiorari and prohibition are necessarily broader in scope
and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by
a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right,
undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial
functions. Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to
review and/or prohibit or nullify the acts of legislative and executive officials.
Remedial law; Locus standi. Citing De Castro v. Judicial and Bar Council, the Supreme Court ruled that the assertion
of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action
rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as
adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his
petition that he is entitled to protection or relief from the Court in the vindication of a public right. The Court likewise
cited Agan, Jr. v. Philippine International Air Terminals Co., Inc., to explain that [s]tanding is a peculiar concept in
constitutional law because in some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the
public interest.
Transcendental importance as a ground to waive locus standi. Each of the petitioners has established sufficient
interest in the outcome of the controversy as to confer locus standi on each of them. In addition, considering that
the issues center on the extent of the power of the Chief Executive to disburse and allocate public funds,
whether appropriated by Congress or not, these cases pose issues that are of transcendental importance to the entire
Nation, the petitioners included. As such, the determination of such important issues call for the Courts exercise of its
broad and wise discretion to waive the requirement and so remove the impediment to its addressing and resolving
the serious constitutional questions raised.
Administrative law; Budget process; Implementation and funding of the Disbursement Allocation Program (DAP). Four
phases comprise the Philippine budget process, specifically: (1) Budget Preparation; (2) Budget Legislation;
(3) Budget Execution; and (4) Accountability.
The DAP was to be implemented and funded (1) by declaring savings coming from the various departments and
agencies derived from pooling unobligated allotments and withdrawing unreleased appropriations; (2)
releasing unprogrammed funds; and (3) applying the savings and unprogrammed funds to augment existing
[program, activity or project] or to support other priority PAPs.
Administrative law; Nature of the DAP. The DAP was a government policy or strategy designed to stimulate the
economy through accelerated spending. In the context of the DAPs adoption and implementation being a function
pertaining to the Executive as the main actor during the Budget Execution Stage under its constitutional mandate to
faithfully execute the laws, including the GAAs, Congress did not need to legislate to adopt or to implement the DAP.
Constitutional law; The DAP is not an appropriation measure and does not contravene Section 29(1), Article VI. The
President, in keeping with his duty to faithfully execute the laws, had sufficient discretion during the execution of the
budget to adapt the budget to changes in the countrys economic situation. He could adopt a plan like the DAP for the

purpose. He could pool the savings and identify the PAPs to be funded under the DAP. The pooling of
savings pursuant to the DAP, and the identification of the PAPs to be funded under the DAP did not involve
appropriation in the strict sense because the money had been already set apart from the public treasury by Congress
through the GAAs. In such actions, the Executive did not usurp the power vested in Congress under Section 29(1),
Article VI of the Constitution [that no money shall be paid out of the Treasury except in pursuance of an appropriation
made by law].
Requisites of a valid transfer of appropriated funds under Section 25(5), Article VI. The transfer of appropriated funds,
to be valid under Section 25(5), [Article VI of the Constitution], must be made upon a concurrence of the following
requisites, namely: (1) There is a law authorizing the President, the President of the Senate, the Speaker of the House
of Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions to
transfer funds within their respective offices; (2) The funds to be transferred are savings generated from
the appropriations for their respective offices; and (3) The purpose of the transfer is to augment an item in the general
appropriations law for their respective offices.
It is then indubitable that the power to augment was to be used only when the purpose for which the funds had been
allocated were already satisfied, or the need for such funds had ceased to exist, for only then could savings be
properly realized. This interpretation prevents the Executive from unduly transgressing Congress power of the purse.
Savings, defined. The definition of savings under the 2011, 2012 and 2013 GAAs refer to portions or balances of any
programmed appropriation in this Act free from any obligation or encumbrance which are: (i) still available after the
completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is
authorized; (ii) from appropriations balances arising from unpaid compensation and related costs pertaining to
vacant positions and leaves of absence without pay; and (iii) from appropriations balances realized from the
implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and
deliver the required or planned targets.
The Court agreed with petitioners that respondents were forcing the generation of savings in order to have a larger
fund available for discretionary spending. Respondents, by withdrawing unobligated allotments in the middle of the
fiscal year, in effect deprived funding for PAPs with existing appropriations under the GAAs.
The mandate of Section 28, Chapter IV, Book VI of the Administrative Code is to revert to the General Fund balances
of appropriations that remained unexpended at the end of the fiscal year. The Executive could not circumvent this
provision by declaring unreleased appropriations and unobligated allotments as savings prior to the end of the fiscal
year.
Augmentation is valid only when funding is deficient. The GAAs for 2011, 2012 and 2013 set as a condition
for augmentation that the appropriation for the PAP item to be augmented must be deficient, to wit: x x x
Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which upon
implementation, or subsequent evaluation of needed resources, is determined to be deficient. In no case shall a nonexistent program, activity, or project, be funded by augmentation from savings or by the use of
appropriations otherwise authorized in this Act.
The President cannot substitute his own will for that of Congress. The Court held that the savings pooled under the
DAP were allocated to PAPs that were not covered by any appropriations in the pertinent GAAs. Although the [Office
of the Solicitor General] rightly contends that the Executive was authorized to spend in line with its mandate
to faithfully execute the laws (which included the GAAs), such authority did not translate to unfettered discretion that
allowed the President to substitute his own will for that of Congress. He was still required to remain faithful to the
provisions of the GAAs, given that his power to spend pursuant to the GAAs was but a delegation to him from
Congress. Verily, the power to spend the public wealth resided in Congress, not in the Executive. Moreover, leaving
the spending power of the Executive unrestricted would threaten to undo the principle of separation of powers.
Cross-border transfers or augmentations are prohibited. By providing that the President, the President of the Senate,
the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the Heads of the
Constitutional Commissions may be authorized to augment any item in the GAA for their respective offices, Section
25(5) has delineated borders between their offices, such that funds appropriated for one office are prohibited from
crossing over to another office even in the guise of augmentation of a deficient item or items. Thus, we call such
transfers of funds cross-border transfers or cross-border augmentations.
Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of Section 25(5)
disallowing cross-border transfers was disobeyed. Cross-border transfers, whether as augmentation, or as aid, are
prohibited under Section 25(5).

No violation of equal protection. Petitioners claim that the Executive discriminated against some legislators on the
ground alone of their receiving less than the others could not of itself warrant a finding of contravention of the Equal
Protection Clause. The denial of equal protection of any law should be an issue to be raised only by parties who
supposedly suffer it, and, in these cases, such parties would be the few legislators claimed to have been discriminated
against in the releases of funds under the DAP. The reason for the requirement is that only such affected legislators
could properly and fully bring to the fore when and how the denial of equal protection occurred, and explain why there
was a denial in their situation. The requirement was not met here.
Operative fact doctrine. The doctrine of operative fact recognizes the existence of the law or executive act prior to the
determination of its unconstitutionality as an operative fact that produced consequences that cannot always be
erased, ignored or disregarded. In short, it nullifies the void law or executive act but sustains its effects. It provides an
exception to the general rule that a void or unconstitutional law produces no effect. But its use must be subjected to
great scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but is
resorted to only as a matter of equity and fair play. It applies only to cases where extraordinary circumstances exist,
and only when the extraordinary circumstances have met the stringent conditions that will permit its application.
The operative fact doctrine applies to the implementation of the DAP. To declare the implementation of the DAP
unconstitutional without recognizing that its prior implementation constituted an operative fact that produced
consequences in the real as well as juristic worlds of the Government and the Nation is to be impractical and unfair.
Unless the doctrine is held to apply, the Executive as the disburser and the offices under it and elsewhere as the
recipients could be required to undo everything that they had implemented in good faith under the DAP. That scenario
would be enormously burdensome for the Government. Equity alleviates such burden.

Araullo vs Aquino (July 1, 2014, penned by Justice Lucas P. Bersamin) declared

unconstitutional four acts and practices under the Disbursement Acceleration Program,
National Budget Circular No. 541 and related issuances. It did not declare the DAP
unconstitutional, only the acts and practices under it, unlike Belgica vs Ochoa (Nov.
13, 2013) which plainly declared the Priority Development Assistance Fund
unconstitutional. The four are worded in deep legalese and need to be explained for lay
readers.
Backgrounder. Annually, Congress approves the General Appropriations Act (GAA) or
budget. In general, it contains an estimate of revenues and funding sources, which are
usually (1) taxes, (2) capital revenues (like proceeds from the sales of assets), (3)
grants, (4) extraordinary income (like dividends of government corporations) and (5)
borrowings.
The budget also contains itemized public expenditures allotted to the three main
branches of government (executive, legislative and judicial) and the independent
agencies (Commission on Audit or COA, Commission on Elections or Comelec, Office
of the Ombudsman, etc.). The current budget totals about P2 trillion.
Often, the estimated revenues are exceeded by actual receipts. These excess funds
are referred to as unprogrammed funds. Examples are unexpected large dividends
from government institutions like the Social Security System and Government Service
Insurance System. Often, too, the estimated expenditures are not spent; hence
savings occur.
The DAP aims to pool these unspent funds, and uses them to fund projects that
stimulate the economy. Citing the World Bank, the Supreme Courts decision (p.36)
acknowledged the programs success, saying that the continued implementation of the
DAP strengthened growth by 11.8% year on year while infrastructure spending
rebounded from a 29% contraction to a 34% growth as of September 2013.
Unconstitutional acts. The Constitution states, No public money shall be paid out of the
Treasury except in pursuance of an appropriation made by law. Also, No law shall be
passed authorizing the transfer of appropriations Under these provisions, money
allotted for one program, activity or project (PAP) cannot be spent for another PAP
even if both are in the GAA. Congress cannot even authorize the transfer of
appropriations from one budget item to another.
However, the Constitution allows one limited exception to that rule: [T]he President,
the President of the Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of the Constitutional Commissions may,
by law, be authorized to augment any item in the [GAA] (or budget) for their respective
offices from savings in other items of their respective appropriations (bold types mine).
This exception is called the power of augmentation.
The bulk of DAP funds may have been pooled in strict adherence to this exception.
However, the Court found that these four acts and practices violated it:
(1) Only actual savings may be transferred from one budget item to another item in
the GAA. Savings are actual only when (a) the PAPs (projects, activities or

programs) for which the appropriation had been authorized was completed, finally
discontinued, or abandoned; or (b) there were vacant positions and leaves of absence
without pay; or (c) the required or planned targets, programs and services were
realized at a lesser cost because of the implementation of measures resulting in
improved systems and efficiencies. (p.59)
Thus, the act or practice of transferring funds prior to the end of the fiscal year,
which did not meet any of those three instances, were deemed unconstitutional.
(2) Augmentation can be made only for items allocated for their respective offices,
that is, within the same branch or office. Thus, the act or practice of transferring
savings from the executive to the Congress, or to the Comelec, or to the COA, being
cross-border transfers, were declared unconstitutional.
(3) The funding of PAPs that are not covered by any appropriation in the GAA is also
unconstitutional because augmentation can be made only from one existing item to
another existing item in the budget. The President cannot use budgeted funds for PAPs
not found in the GAA.
(4) Unconstitutional also is the use of unprogrammed funds in the absence of a legally
required certification by the national treasurer that the revenue collections exceeded
the total of the revenue targets.
Accountability. As a rule, an unconstitutional act or practice is void and cannot give
rise to any right or obligation. However, the Court held that the exception to this rule,
the old doctrine of operative fact, should be applied in the implementation of the
DAP. (p.87)
Under this doctrine, acts done in good faith pursuant to a law or executive act that is
later declared unconstitutional would remain valid and enforceable. It also applies when
the nullification of such acts would result in an injustice. In short, unconstitutionality has
prospective effects only.
Example: A bridge is constructed from illegally augmented funds. The government
officials who supervised in good faith the construction cannot be forced to reimburse
the government. Neither may injustice be heaped on suppliers of construction materials
by refusing to pay them.
May the President, the author of the augmentation, be impeached? The Court did not
take that up. Neither will I. Impeachment is more political than legal. So, I will leave it to
the politicians.
***
Comments to chiefjusticepanganiban@hotmail.com

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The DAP decision: Lessons on politics, governance

With the decision in the consolidated case of Araullo v. Aquino III, the Supreme Court had found the Disbursement
Acceleration Program (DAP) of the administration of President Benigno S. Aquino partially constitutional, partially
unconstitutional.
In its wake, as seen in the news, critics have gladly seized on DAPs partial unconstitutionality to raise scenarios of
impeachment against the President, or raised calls for the resignation of Budget Secretary Florencio Butch Abad.
These criticisms ride on the popular anger against pork barrel freely-disbursed lump sum allocations such as the
Priority Development Assistance Fund (PDAF) declared unconstitutional in Belgica v. Executive Secretary this time
aimed at Malacaang rather than Congress.

We will not join the bandwagon. We do not support the impeachment of the president and we leave it up to Secretary
Abad, an exemplary public official by any standard, to discern whether his resignation will benefit the country. We trust
he will make the right decision.

In this article, we think beyond this politics of outrage, which could just be a moment or are warnings of major
upheavals ahead, and reflect on the longer term political and governance implications of the DAP decision.

A judicial challenge to an act of the executive (or the legislative, for that matter), is ultimately an act that seeks to limit
an instance of the exercise of that governmental power when done right, in an effort to curb abuse and protect what
is right. In parsing DAP, in declaring some of Aquinos actions constitutional, and some unconstitutional, the Supreme
Court had essentially left the Presidents prerogative to augment proper budget expenditures from proper budget
savings intact, but clearly defined what augmentation isnot.

What augmentation is, according to the ponencia, and defined in Art. VI, Sec. 25 (5) of the 1987 Constitution, and
authorized within each years General Appropriations Act (GAA), is the use of clearly-identified savings in the
expenditures of government departments and offices to augment clearly-identified, actual deficiencies within those
respective government departments and offices. What augmentation is not, however, is to allocate what
was not authorized as an expenditure in the GAA. It is not a transfer of executive department savings to legislative
lump sum allocations (cross-border augmentation) by virtue of the latters unconstitutionality, or at the very least,
because such itself violates Art. VI Sec. 25 (5).

Savings

There, too, was a problem in addressing the definition of actual savings that is the source of augmentations. To
quote from the ponencia, actual savings, strictly speaking, is the money left over from GAA-authorized items which are
authorized was completed, finally discontinued, or abandoned; or because the policy targets were reached at lower
cost due to increased efficiencies; or because of vacant government positions or leaves-of-absence without

pay. Araullo held that it did not contemplate the use of money that had yet to be used: the controversial unobligated
allotments of slow-moving government projects; or the unprogrammed funds, which are standby appropriations
authorized in the GAA, which are available only under specific circumstances and conditions. One of DAPs errors, but
a critical one, was that it considered funds otherwise not considered by law as actual savings, as actual savings,
making them available for disbursement by the President.

As with Belgica, Araullo exposes the underbelly of Philippine money politics: the roles and powers over the budgetcrossing borders. With PDAF, it was the legislature getting an all-but-assured slice of the pie for legislators to spend
on their own programs as they see fit; a usurpation of executive roles. With the unconstitutional portions of DAP, it
was the Chief Executive allocating savings and unprogrammed funds to projects or programs independent of
authorized GAA allocations (including DAP handovers to legislators); a usurpation of legislative functions. It would be
crude but otherwise uncomfortably close to the mark to describe a DAPed president as a mini-Congress, and a
PDAFed legislator as a mini-president.

Yet this confluence and contradiction of roles has likely subsisted in the foundations of Philippine politics-in-practice
certainly since PHILCONSA v. Enriquez earlier ruled pork barrel as constitutional, allowing the practice to continue
with judicial leave. For all the diatribes raised against Aquino in the wake of the PDAF scandal, the truth is that, as
with his predecessors, he had inherited prior practices of Philippine government that have become so ingrained in
political culture.

Malice

Other than outright malice (which has to be proven first!), nothing else but the honest belief that pork is right (if used
right) would have motivated congressmen who cried foul and threats of impeachment overBelgica. And I do believe
(despite others that claim otherwise) that what motivated the administration on the exercise of and its defensiveness
with DAP was not the malice they denounce, but a similar honest belief that the Executive could reallocate unused
money as it did, for the good of the nation.
Ironically, it was Aquinos own high standards of daang matuwid that allowed the Court to resolve the DAP question as
it did or for the question to explode into public consciousness as it did. The records of the case will reflect the
packages of memoranda and orders in relation to DAP money movements: amply documented and volunteered upon
summons.

Admittedly, and as will be elaborated later, an audit will still be necessary to uncover the full story of DAP (and the
Court did note that documents relating to DAPs conceptualization were scarce), but the evidence package offered in
Court was enough for the Justices to parse how the President exercised his powers, the bone of contention in Araullo.

If anything, such level of documentary detail, readily presented upon order, would be evidence of good faith on the
part of the administration. Which is where our discussion now turns to the question of impeachment against Aquino, or
calls for Abad to resign. Ever since last year, there has been an undercurrent of vindictiveness in the campaign
against pork. Understandable, given the scale of the scandal, and the defenses offered by all the parties under attack
whether Senators Enrile, Estrada, or Revilla; or Aquino or Abad that some feel are just attempts to deflect or delay

the inevitable condemnation. And we feel that anger in critical op-eds, or the vitriol in the comment boards of news
outfits and social media.

Unconstitutional but not criminal

Yet here we must demur. Legally and morally, to condemn requires proper evidence culpable violation in case of
impeachment, or the commission of the elements of the crime charged, in case of criminal prosecution. As Professor
Randy David observed in his Inquirer column, reflecting on his arrest in the wake of President Arroyos Proclamation
1017, a policy being unconstitutional does not always mean the policy-maker being criminal or culpable for that
matter.

Justice Marvic Leonen pointed it out clearly in his separate opinion: to rule that a declaration of unconstitutionality
per se is the basis for determining liability is a dangerous proposition. It is not proper that there are suggestions of
administrative or criminal liability even before the proper charges are raised, investigated, and filed.

If we keep insisting that government officials should always be held liable, especially criminally liable, for acts
subsequently declared to be unconstitutional by the Court, then all government would be paralyzed by terror, unable
to exercise such powers even granted to them by the Constitution, for fear of the next prosecution (whether truly
aggrieved or politically motivated) thrown in their direction.

The Supreme Court may be the final arbiter of constitutionality, but by virtue of separation of powers, the Executive
and Legislature get first crack at interpretation of the constitutionality of their acts (contemporaneous construction).
Such interpretation is still open to challenge by any aggrieved party, but a principle of law is that constitutionality is
generally presumed; its unconstitutionality must be proved. Until proven otherwise, the law grants the President or
Congress the benefit of the doubt.

Absent further evidence on malicious or culpable acts of the Administration, it is enough that Araulloreestablishes the
proper budget-handling borders of the separated powers of government.

Governance

This leads us to our next set of implications: governance. As pork had become ingrained in national politics, it had also
wormed its way into governance, into the implementation of policy and the spending of money on policy. PDAF
again demonstrates how dependent public services, even those provided by NGOs, were on the largesse of
legislators, such that the system could be manipulated with ghost NGOs. It feeds into the patronage politics of
Philippine governance: that public services and the benefits every citizen receives, by law, from government is held
hostage by the political elite, who can then extract staying power and the occasional graft from his constituency and
budgetary allocation.

It should be noted that the same Secretary Abad critics are now wont to hang for DAP, is the same Secretary Abad
who declared, in his Metrobank Professorial Chair lecture last year at the Ateneo School of Government, that the

budget could be a tool for citizen empowerment (particularly though inclusive budgeting reforms introduced under his
watch, such as bottom-up budgeting).

Weeding governance of bad budgetary habits strengthens good and responsive governance. Subjecting government
allocations and allotments to stricter scrutiny and controls, thanks to the restoration of the borders, will ultimately help
in restoring fiscal credibility to Philippine governance: the legislature authorizes where the money goes, the executive
releases the money to such expenditures, with the citizenry participating at the budget planning, deliberation, and
execution stages, either through their elected representatives or as citizen organizations.

Still, good governance has up to 27 years to catch up on a history of bad budgetary habits, since the restoration of
traditional political dynamics following the fall of the Marcos regime. In the short term, government and citizenry both
will have to break some of those habits: congressionally-branded scholarships and free clinics; the basketball courts
and multi-purpose halls, that seem to be the low-hanging fruit of GAA allocations to public works.

Padrino system

There will likely be a painful adjusting period as constituents suddenly find themselves without a padrino, learning
instead political habits of interest aggregation, interfacing with representatives and bureaucrats, of leveraging policy
planning and execution to their benefit. As our colleagues have found in the G-Watch project, this learning process is
more needed and more painful outside the cities, in the bailiwicks of trapo dynasties, and among a population so
used to binyag-kasal-libing interaction with their political representatives.

Padrinos and trapo dynasties may seem more the terrain of Congress, but Abads concept of budget-as-empowering
is sorely needed in Malacaang as well. Keynesian economics does hold that government spending does have a
stimulus effect on the economy Justice Leonens concurrence to Araullo noted this; exemplified by the World Bank
report cited in the majority that found DAP to have contributed 1.3% to the 2011 gross domestic product growth.

Yet a dependence on DAP as a stimulus tool may yet breed dependence on executive augmentations in the name of
economic growth.

In the earlier-referred Metrobank lecture, Abad had rightly described the national budget as an arena of struggle
among competing interests but heretofore that struggle and those interests were assumed to be in congressional
deliberation, not executive execution. This is the danger implied in Araullos finding that augmentations made outside
of GAA line items were unconstitutional, as were cross-border releases to Congress.

The accusation that DAP may have been used to secure the votes needed for Chief Justice Renato Coronas
impeachment, or the RH Bills passage, stings the most in this regard. True or untrue (or simply very uncomfortable
timing), it has become highly embarrassing for the Office of the President at the least. At most, it makes the Office of
the President as much a padrino of his own constituency (e.g., Congress) as a local political lord.

Mitigating such dangers requires robust accountability. Araullo complements Belgica by delineating, once and for all,
the roles and functions of the branches of government in the budgetary process. It is easier to color within the lines,
after all, when the lines themselves are clear.

Accountability

Judicial decisions alone, however, will not color between the lines, so to speak. Financial accountability is the reserve
of the system of checks and balances among the branches of government (which Araullo andBelgica thankfully
clarify), and of the Commission of Audit, its raison detre.

It also ought to be the resolve of citizens to watch over the effective and equitable expenditure of public funds through
project monitoring, and working with government a cause our school, the Ateneo School of Government, has
championed through the social accountability framework.

However, there is something Malacaang ought to do now, in the wake of Araullo. So far, what has been made public
by court action were the DAP-related memos and subsequent documentation of the Office of the President. As noted
in the ponencia, other documents remain to be revealed, such as the decision-making process behind DAPs creation,
and of course the proverbial paper trail of the money, especially once it left executive hands. This goes double for the
releases to legislators, in case it can help clarify the paper trail in the PDAF cases on file now and later, and to clarify
which personalities or programs may benefit from the doctrine of operative fact under a good-faith defense (as Justice
Antonio Carpio cautions in his separate opinion).

We would like to repeat, however, that this exercise in accountability must not turn into an exercise of vindictiveness.
Accountability based on threat (or at least threat alone), a climate of fear of the hangmans noose, will not be
sustainable. Where liabilities can be established, as Justice Leonen observed, there the proper cases may be filed
(and if the travails of the PDAF prosecution team be instructive, then those liabilities must be thoroughly established).
But as with the Benhur Luy revelations, Araullo can help guide everyones hand in establishing a better structure of
public finance management and accountability. Fully threshing out this promise is best left to a future article, but
suffice to say that Araullo and Belgica mitigate, if not eliminate, the risks opened up by the earlier PHILCONSA ruling.

The administrations habit of documentation, too, is a hopeful portent of practices to come, and a willingness of Aquino
officials to further disclose the extents and consequences of DAP in the name of accountability and better governance
design. (Besides, a working Keynesian stimulus is a good achievement, especially for an administration earlier
criticized for dragging its feet on post-Arroyo government spending.)

Admit mistakes

And to help stimulate both accountability and discussions for governance redesign, here we must submit unsolicited,
but hopefully useful, advice for the administration, to tone down the self-righteous defensiveness.

Araullo, as well as Aquinos forthcoming submission of the requested evidences, already point to good faith exercised
in the execution of DAP. The presidential prerogative for constitutional augmentation has not been stripped. It is
possible to look at the Supreme Court decision as a starting point for dialogue and reform. As with persons, it helps for
governments to admit their mistakes as a step towards reconciliation and recovery. It also helps that the populace be
ready to dialogue with its mistaken, but cooperative, government but we have already stressed this point in previous
paragraphs.

So where does the country go from here? How does the Philippine polity go cold turkey, bear the withdrawal
symptoms from weaning itself from a dependence on pork barrel? Money, legitimately or illegitimately appropriated
and disbursed, had been used in times past to grease the wheels of legislation and execution.

This is what Congress crowed about in the wake of Belgica, to take away the proverbial prop upon which their Houses
stand. But the very picture of political horse-trading did not envision the exchange of money, especially the peoples
money, but the aggregation and trading of political, economic, and social interests deliberated openly, for which the
money will then be disbursed, and the reward is continued political (and practical) relevance to their constituencies (as
well as their respective salaries).

Idealistic, we know even America struggles with corrupt money politics and pork, though manifested in different
forms (e.g., earmarks).

Yet it is high time we learned the habits of modern, accountable politics. Consider Araullo and Belgica a badly-needed
intervention, a judicially-mandated stint in rehab that may finally give Philippine politics a chance to detoxify, shed
st

some bad money habits, and come clean into the 21 century.

As with any intervention, it would help for the intervenors to approach their addict-subject with detachment and
compassion; with sensitivity as well as resolve. Rappler.com

Political Law Constitutional Law Separation of Powers Fund Realignment Constitutionality of the
Disbursement Acceleration Program
Power of the Purse Executive Impoundment
1. When President Benigno Aquino III took office, his administration noticed the sluggish growth of the
economy. The World Bank advised that the economy needed a stimulus plan.
2. Budget Secretary Florencio Butch Abad then came up with a program called the Disbursement
Acceleration Program (DAP).
3. The DAP was seen as a remedy to speed up the funding of government projects. DAP enables the
Executive to realign funds from slow moving projects to priority projects instead of waiting for next years
appropriation. So what happens under the DAP was that if a certain government project is being
undertaken slowly by a certain executive agency, the funds allotted therefor will be withdrawn by the
Executive.
4. Once withdrawn, these funds are declared as savings by the Executive and said funds will then be
reallotted to other priority projects.
5. The DAP program did work to stimulate the economy as economic growth was in fact reported and
portion of such growth was attributed to the DAP (as noted by the Supreme Court).
6. Other sources of the DAP include the unprogrammed funds from the General Appropriations Act (GAA).
Unprogrammed funds are standby appropriations made by Congress in the GAA.
7. Meanwhile, in September 2013, Senator Jinggoy Estrada made an expos claiming that he, and other
Senators, received Php50M from the President as an incentive for voting in favor of the impeachment of
then Chief Justice Renato Corona. Secretary Abad claimed that the money was taken from the DAP but
was disbursed upon the request of the Senators.
8. This apparently opened a can of worms as it turns out that the DAP does not only realign funds within
the Executive. It turns out that some non-Executive projects were also funded; to name a few: Php1.5B
for the CPLA (Cordillera Peoples Liberation Army), Php1.8B for the MNLF (Moro National Liberation
Front), P700M for the Quezon Province, P50-P100M for certain Senators each, P10B for Relocation
Projects, etc.
9. This prompted Maria Carolina Araullo, Chairperson of the Bagong Alyansang Makabayan, and several
other concerned citizens to file various petitions with the Supreme Court questioning the validity of the
DAP. Among their contentions was:
a. DAP is unconstitutional because it violates the constitutional rule which provides that no money
shall be paid out of the Treasury except in pursuance of an appropriation made by law.
b. Secretary Abad argued that the DAP is based on certain laws particularly the GAA (savings and
augmentation provisions thereof), Sec. 25(5), Art. VI of the Constitution (power of the President
to augment), Secs. 38 and 49 of Executive Order 292 (power of the President to suspend
expenditures and authority to use savings, respectively).
Issues:
I. Whether or not the DAP violates the principle no money shall be paid out of the Treasury except in
pursuance of an appropriation made by law (Sec. 29(1), Art. VI, Constitution).
II. Whether or not the DAP realignments can be considered as impoundments by the executive.
III. Whether or not the DAP realignments/transfers are constitutional.
IV. Whether or not the sourcing of unprogrammed funds to the DAP is constitutional.
V. Whether or not the Doctrine of Operative Fact is applicable.
HELD:
I. No, the DAP did not violate Section 29(1), Art. VI of the Constitution. DAP was merely a program by the
Executive and is not a fund nor is it an appropriation. It is a program for prioritizing government spending. As
such, it did not violate the Constitutional provision cited in Section 29(1), Art. VI of the Constitution. In DAP no
additional funds were withdrawn from the Treasury otherwise, an appropriation made by law would have been
required. Funds, which were already appropriated for by the GAA, were merely being realigned via the DAP.

II. No, there is no executive impoundment in the DAP. Impoundment of funds refers to the Presidents power to
refuse to spend appropriations or to retain or deduct appropriations for whatever reason. Impoundment is
actually prohibited by the GAA unless there will be an unmanageable national government budget deficit (which
did not happen). Nevertheless, theres no impoundment in the case at bar because whats involved in the DAP
was the transfer of funds.
III. No, the transfers made through the DAP were unconstitutional. It is true that the President (and even the
heads of the other branches of the government) are allowed by the Constitution to make realignment of funds,
however, such transfer or realignment should only be made within their respective offices. Thus, no crossborder transfers/augmentations may be allowed. But under the DAP, this was violated because funds
appropriated by the GAA for the Executive were being transferred to the Legislative and other non-Executive
agencies.
Further, transfers within their respective offices also contemplate realignment of funds to an existing project in
the GAA. Under the DAP, even though some projects were within the Executive, these projects are non-existent
insofar as the GAA is concerned because no funds were appropriated to them in the GAA. Although some of
these projects may be legitimate, they are still non-existent under the GAA because they were not provided for
by the GAA. As such, transfer to such projects is unconstitutional and is without legal basis.
On the issue of what are savings
These DAP transfers are not savings contrary to what was being declared by the Executive. Under the
definition of savings in the GAA, savings only occur, among other instances, when there is an excess in the
funding of a certain project once it is completed, finally discontinued, or finally abandoned. The GAA does not
refer to savings as funds withdrawn from a slow moving project. Thus, since the statutory definition of savings
was not complied with under the DAP, there is no basis at all for the transfers. Further, savings should only be
declared at the end of the fiscal year. But under the DAP, funds are already being withdrawn from certain
projects in the middle of the year and then being declared as savings by the Executive particularly by the DBM.
IV. No. Unprogrammed funds from the GAA cannot be used as money source for the DAP because under the
law, such funds may only be used if there is a certification from the National Treasurer to the effect that the
revenue collections have exceeded the revenue targets. In this case, no such certification was secured before
unprogrammed funds were used.
V. Yes. The Doctrine of Operative Fact, which recognizes the legal effects of an act prior to it being declared as
unconstitutional by the Supreme Court, is applicable. The DAP has definitely helped stimulate the economy. It
has funded numerous projects. If the Executive is ordered to reverse all actions under the DAP, then it may
cause more harm than good. The DAP effects can no longer be undone. The beneficiaries of the DAP cannot be
asked to return what they received especially so that they relied on the validity of the DAP. However, the
Doctrine of Operative Fact may not be applicable to the authors, implementers, and proponents of the DAP if it is
so found in the appropriate tribunals (civil, criminal, or administrative) that they have not acted in good faith.

BIRAOGO VS PTC
G.R. No. 192935 December 7, 2010
LOUIS BAROK C. BIRAOGO
vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010
x -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG, and REP. ORLANDO B.
FUA, SR.
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
FLORENCIO B. ABAD
FACTS:

Pres. Aquino signed E. O. No. 1 establishing Philippine Truth Commission of 2010 (PTC) dated July 30, 2010.
PTC is a mere ad hoc body formed under the Office of the President with the primary task to investigate reports of
graft and corruption committed by third-level public officers and employees, their co-principals, accomplices and
accessories during the previous administration, and to submit its finding and recommendations to the President,
Congress and the Ombudsman. PTC has all the powers of an investigative body. But it is not a quasi-judicial body
as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All it
can do is gather, collect and assess evidence of graft and corruption and make recommendations. It may have
subpoena powers but it has no power to cite people in contempt, much less order their arrest. Although it is a
fact-finding body, it cannot determine from such facts if probable cause exists as to warrant the filing of an
information in our courts of law.
Petitioners asked the Court to declare it unconstitutional and to enjoin the PTC from performing its functions. They
argued that:
(a) E.O. No. 1 violates separation of powers as it arrogates the power of the Congress to create a public office and
appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize E.O.
No. 1 because the delegated authority of the President to structurally reorganize the Office of the President to
achieve economy, simplicity and efficiency does not include the power to create an entirely new public office which
was hitherto inexistent like the Truth Commission.
(c) E.O. No. 1 illegally amended the Constitution and statutes when it vested the Truth Commission with quasijudicial powers duplicating, if not superseding, those of the Office of the Ombudsman created under the 1987
Constitution and the DOJ created under the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and prosecution
officials and personnel of the previous administration as if corruption is their peculiar species even as it excludes
those of the other administrations, past and present, who may be indictable.
Respondents, through OSG, questioned the legal standing of petitioners and argued that:
1] E.O. No. 1 does not arrogate the powers of Congress because the Presidents executive power and power of
control necessarily include the inherent power to conduct investigations to ensure that laws are faithfully executed
and that, in any event, the Constitution, Revised Administrative Code of 1987, PD No. 141616 (as amended), R.A.
No. 9970 and settled jurisprudence, authorize the President to create or form such bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no appropriation but a
mere allocation of funds already appropriated by Congress.

3] The Truth Commission does not duplicate or supersede the functions of the Ombudsman and the DOJ, because
it is a fact-finding body and not a quasi-judicial body and its functions do not duplicate, supplant or erode the
latters jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was validly created for laudable
purposes.
ISSUES:
1. WON the petitioners have legal standing to file the petitions and question E. O. No. 1;
2. WON E. O. No. 1 violates the principle of separation of powers by usurping the powers of Congress to create
and to appropriate funds for public offices, agencies and commissions;
3. WON E. O. No. 1 supplants the powers of the Ombudsman and the DOJ;
4. WON E. O. No. 1 violates the equal protection clause.
RULING:
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 the standing to question
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.
1. The petition primarily invokes usurpation of the power of the Congress as a body to which they belong as
members. To the extent the powers of Congress are impaired, so is the power of each member thereof, since his
office confers a right to participate in the exercise of the powers of that institution.
Legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the Constitution
in their office remain inviolate. Thus, they are allowed to question the validity of any official action which, to their
mind, infringes on their prerogatives as legislators.
With regard to Biraogo, he has not shown that he sustained, or is in danger of sustaining, any personal and direct
injury attributable to the implementation of E. O. No. 1.
Locus standi is a right of appearance in a court of justice on a given question. In private suits, standing is
governed by the real-parties-in interest rule. It provides that every action must be prosecuted or defended in
the name of the real party in interest. Real-party-in interest is the party who stands to be benefited or injured by
the judgment in the suit or the party entitled to the avails of the suit.
Difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right in
assailing an allegedly illegal official action, does so as a representative of the general public. He has to show that
he is entitled to seek judicial protection. He has to make out a sufficient interest in the vindication of the public
order and the securing of relief as a citizen or taxpayer.
The person who impugns the validity of a statute must have a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result. The Court, however, finds reason in Biraogos
assertion that the petition covers matters of transcendental importance to justify the exercise of jurisdiction by the
Court. There are constitutional issues in the petition which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents
The Executive is given much leeway in ensuring that our laws are faithfully executed. The powers of the President
are not limited to those specific powers under the Constitution. One of the recognized powers of the President
granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from
the obvious need to ascertain facts and determine if laws have been faithfully executed. The purpose of allowing
ad hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know so
that he can be properly advised and guided in the performance of his duties relative to the execution and
enforcement of the laws of the land.
2. There will be no appropriation but only an allotment or allocations of existing funds already appropriated. There
is no usurpation on the part of the Executive of the power of Congress to appropriate funds. There is no need to
specify the amount to be earmarked for the operation of the commission because, whatever funds the Congress

has provided for the Office of the President will be the very source of the funds for the commission. The amount
that would be allocated to the PTC shall be subject to existing auditing rules and regulations so there is no
impropriety in the funding.
3. PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative
function of the commission will complement those of the two offices. The function of determining probable cause
for the filing of the appropriate complaints before the courts remains to be with the DOJ and the Ombudsman.
PTCs power to investigate is limited to obtaining facts so that it can advise and guide the President in the
performance of his duties relative to the execution and enforcement of the laws of the land.
4. Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987
Constitution.
Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. It requires public bodies and institutions to treat similarly situated
individuals in a similar manner. The purpose of the equal protection clause is to secure every person within a
states jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a
statue or by its improper execution through the states duly constituted authorities.
There must be equality among equals as determined according to a valid classification. Equal protection clause
permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has
four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law;
(3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.
The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to
rights conferred and obligations imposed.
Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of
truth commission is to investigate and find out the truth concerning the reported cases of graft and corruption
during the previous administration only. The intent to single out the previous administration is plain, patent and
manifest.
Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its
own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection
clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution. Superficial differences do not make for a valid classification.
The PTC must not exclude the other past administrations. The PTC must, at least, have the authority to investigate
all past administrations.
The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in
accordance with which all private rights determined and all public authority administered. Laws that do not
conform to the Constitution should be stricken down for being unconstitutional.
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONAL insofar
as it is violative of the equal protection clause of the Constitution.

G.R. No. 192935

December 7, 2010

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG, and REP.
ORLANDO B. FUA, SR., Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO B. ABAD, Respondents.
DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.
--- Justice Jose P. Laurel

The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of
government are established, limited and defined, and by which these powers are distributed among the several
2
departments. The Constitution is the basic and paramount law to which all other laws must conform and to which all
3
persons, including the highest officials of the land, must defer. Constitutional doctrines must remain steadfast no
matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and
4
much more tailor itself to the whims and caprices of government and the people who run it.
5

For consideration before the Court are two consolidated cases both of which essentially assail the validity and
constitutionality of Executive Order No. 1, dated July 30, 2010, entitled "Creating the Philippine Truth Commission of
2010."
The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis Biraogo (Biraogo)
in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for being violative of the legislative
6
power of Congress under Section 1, Article VI of the Constitution as it usurps the constitutional authority of the
7
legislature to create a public office and to appropriate funds therefor.
The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by petitioners Edcel C.
Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as
incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when then
Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption with his slogan, "Kung
walang corrupt, walang mahirap." The Filipino people, convinced of his sincerity and of his ability to carry out this
noble objective, catapulted the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found a need for a special body to investigate
reported cases of graft and corruption allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1 establishing
the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle that a
public office is a public trust and mandates that public officers and employees, who are servants of the people, must at

all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation of this
mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of a nation;
in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and underprivileged sector
of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the peoples trust and
confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft and
corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved,
if warranted, and to deter others from committing the evil, restore the peoples faith and confidence in the Government
and in their public servants;
WHEREAS, the Presidents battlecry during his campaign for the Presidency in the last elections "kung walang
corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning
the reported cases of graft and corruption during the previous administration, and which will recommend the
prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised
Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of the
President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by virtue of the
powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION,
hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth on, and toward this end,
investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without
fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial
body.
SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative body
under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough factfinding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public
officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration and thereafter submit its finding and recommendations to the President, Congress and the
Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end require any agency, official or employee
of the Executive Branch, including government-owned or controlled corporations, to produce
documents, books, records and other papers;
c) Upon proper request or representation, obtain information and documents from the Senate and the
House of Representatives records of investigations conducted by committees thereof relating to
matters or subjects being investigated by the Commission;

d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or
affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that
the ends of justice be fully served, that such person who qualifies as a state witness under the
Revised Rules of Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report and recommendation, all evidence on corruption of
public officers and employees and their private sector co-principals, accomplices or accessories, if
any, when in the course of its investigation the Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial agency such as the Department of Justice
or any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and
cooperation as it may require in the discharge of its functions and duties;
i) Engage or contract the services of resource persons, professionals and other personnel determined
by it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection with the
objectives and purposes of this Order.
SECTION 3. Staffing Requirements. x x x.
SECTION 4. Detail of Employees. x x x.
SECTION 5. Engagement of Experts. x x x
SECTION 6. Conduct of Proceedings. x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. x x x.
SECTION 8. Protection of Witnesses/Resource Persons. x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government official or personnel
who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who, appearing before the
Commission refuses to take oath or affirmation, give testimony or produce documents for inspection, when required,
shall be subject to administrative disciplinary action. Any private person who does the same may be dealt with in
accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. x x x.
SECTION 11. Budget for the Commission. The Office of the President shall provide the necessary funds for the
Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and responsibilities
as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. x x x.
SECTION 13. Furniture/Equipment. x x x.
SECTION 14. Term of the Commission. The Commission shall accomplish its mission on or before December 31,
2012.

SECTION 15. Publication of Final Report. x x x.

SECTION 16. Transfer of Records and Facilities of the Commission. x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need
to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and
instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by
way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same shall not
affect the validity and effectivity of the other provisions hereof.
SECTION 19. Effectivity. This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere ad hoc body
formed under the Office of the President with the primary task to investigate reports of graft and corruption committed
by third-level public officers and employees, their co-principals, accomplices and accessories during the previous
administration, and thereafter to submit its finding and recommendations to the President, Congress and the
Ombudsman. Though it has been described as an "independent collegial body," it is essentially an entity within the
Office of the President Proper and subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is
8
one.
To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37, Chapter 9, Book I
of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it cannot adjudicate, arbitrate, resolve,
settle, or render awards in disputes between contending parties. All it can do is gather, collect and assess evidence of
graft and corruption and make recommendations. It may have subpoena powers but it has no power to cite people in
contempt, much less order their arrest. Although it is a fact-finding body, it cannot determine from such facts if
probable cause exists as to warrant the filing of an information in our courts of law. Needless to state, it cannot impose
criminal, civil or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries which have been created as official, transitory and
non-judicial fact-finding bodies "to establish the facts and context of serious violations of human rights or of
9
international humanitarian law in a countrys past." They are usually established by states emerging from periods of
internal unrest, civil strife or authoritarianism to serve as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the following characteristics: (1) they examine only past
events; (2) they investigate patterns of abuse committed over a period of time, as opposed to a particular event; (3)
they are temporary bodies that finish their work with the submission of a report containing conclusions and
10
recommendations; and (4) they are officially sanctioned, authorized or empowered by the State. "Commissions
members are usually empowered to conduct research, support victims, and propose policy recommendations to
prevent recurrence of crimes. Through their investigations, the commissions may aim to discover and learn more
about past abuses, or formally acknowledge them. They may aim to prepare the way for prosecutions and recommend
11
institutional reforms."
Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime tribunals are
examples of a retributory or vindicatory body set up to try and punish those responsible for crimes against humanity. A
form of a reconciliatory tribunal is the Truth and Reconciliation Commission of South Africa, the principal function of
which was to heal the wounds of past violence and to prevent future conflict by providing a cathartic experience for
victims.
The PTC is a far cry from South Africas model. The latter placed more emphasis on reconciliation than on judicial
retribution, while the marching order of the PTC is the identification and punishment of perpetrators. As one
12
writer puts it:

The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural speech: "To
those who talk about reconciliation, if they mean that they would like us to simply forget about the wrongs that they
have committed in the past, we have this to say: There can be no reconciliation without justice. When we allow crimes
to go unpunished, we give consent to their occurring over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it
unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the petitioners in
both cases shows that they are essentially the same. The petitioners-legislators summarized them in the following
manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a public
office and appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize E.O.
No. 1 because the delegated authority of the President to structurally reorganize the Office of the President to
achieve economy, simplicity and efficiency does not include the power to create an entirely new public office
which was hitherto inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the "Truth Commission"
with quasi-judicial powers duplicating, if not superseding, those of the Office of the Ombudsman created
under the 1987 Constitution and the Department of Justice created under the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and prosecution
officials and personnel of the previous administration as if corruption is their peculiar species even as it
excludes those of the other administrations, past and present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and general international
practice of four decades wherein States constitute truth commissions to exclusively investigate human rights
violations, which customary practice forms part of the generally accepted principles of international law which
the Philippines is mandated to adhere to pursuant to the Declaration of Principles enshrined in the
Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in partisan hostility, a
launching pad for trial/conviction by publicity and a mere populist propaganda to mistakenly impress the
people that widespread poverty will altogether vanish if corruption is eliminated without even addressing the
other major causes of poverty.
(g) The mere fact that previous commissions were not constitutionally challenged is of no moment because
neither laches nor estoppel can bar an eventual question on the constitutionality and validity of an executive
13
issuance or even a statute."
14

In their Consolidated Comment, the respondents, through the Office of the Solicitor General (OSG), essentially
questioned the legal standing of petitioners and defended the assailed executive order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the Presidents
executive power and power of control necessarily include the inherent power to conduct investigations to
ensure that laws are faithfully executed and that, in any event, the Constitution, Revised Administrative Code
15
16
of 1987 (E.O. No. 292), Presidential Decree (P.D.) No. 1416 (as amended by P.D. No. 1772), R.A. No.
17
9970, and settled jurisprudence that authorize the President to create or form such bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no appropriation
but a mere allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions of the Office of the Ombudsman
(Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding body and not a quasi-judicial
body and its functions do not duplicate, supplant or erode the latters jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was validly created for
laudable purposes.

The OSG then points to the continued existence and validity of other executive orders and presidential issuances
creating similar bodies to justify the creation of the PTC such as Presidential Complaint and Action
Commission(PCAC) by President Ramon B. Magsaysay, Presidential Committee on Administrative Performance
Efficiency(PCAPE) by President Carlos P. Garcia and Presidential Agency on Reform and Government
18
Operations(PARGO) by President Ferdinand E. Marcos.
From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to file their respective petitions and question
Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of separation of powers by usurping the powers
of Congress to create and to appropriate funds for public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs to ascertain
whether the requisites for a valid exercise of its power of judicial review are present.
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 the standing to question 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
19
constitutionality must be the very lis mota of the case.
Among all these limitations, only the legal standing of the petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to demonstrate their
personal stake in the outcome of the case. It argues that the petitioners have not shown that they have sustained or
are in danger of sustaining any personal injury attributable to the creation of the PTC. Not claiming to be the subject of
20
the commissions investigations, petitioners will not sustain injury in its creation or as a result of its proceedings.
The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to assail Executive
Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the Congress as a body to which
they belong as members. This certainly justifies their resolve to take the cudgels for Congress as an institution and
present the complaints on the usurpation of their power and rights as members of the legislature before the Court. As
21
held in Philippine Constitution Association v. Enriquez,
To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a
right to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury,
which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to
the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the
Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any official action which,
22
to their mind, infringes on their prerogatives as legislators.
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the creation of the PTC
23
and the budget for its operations. It emphasizes that the funds to be used for the creation and operation of the
commission are to be taken from those funds already appropriated by Congress. Thus, the allocation and
disbursement of funds for the commission will not entail congressional action but will simply be an exercise of the
Presidents power over contingent funds.

As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of sustaining, any
personal and direct injury attributable to the implementation of Executive Order No. 1. Nowhere in his petition is an
assertion of a clear right that may justify his clamor for the Court to exercise judicial power and to wield the axe over
24
presidential issuances in defense of the Constitution. The case of David v. Arroyo explained the deep-seated rules
on locus standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice on a given question." In private suits, standing is
governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure,
as amended. It provides that "every action must be prosecuted or defended in the name of the real party in
interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or injured by the judgment in
the suit or the party entitled to the avails of the suit." Succinctly put, the plaintiffs standing is based on his own right to
the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in
assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who
is affected no differently from any other person. He could be suing as a "stranger," or in the category of a "citizen," or
taxpayer." In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he
has to make out a sufficient interest in the vindication of the public order and the securing of relief as a "citizen" or
"taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction was
first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayers suit is in a different category
from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel
Case v. Collins: "In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not
the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayers suits, Terr v. Jordan held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official policy or act with which he
disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State
Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt, later reaffirmed inTileston v.
Ullman. The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and
it is not sufficient that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person who impugns
the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such as,Custodio v.
President of the Senate, Manila Race Horse Trainers Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v. Felix. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be
relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of overreaching significance to society, or of
25
paramount public interest."
26

Thus, in Coconut Oil Refiners Association, Inc. v. Torres, 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 first
27
Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders although they had only an indirect and general interest shared in common with the public.
28

29

The OSG claims that the determinants of transcendental importance laid down in CREBA v. ERC and Meralco are
non-existent in this case. The Court, however, finds reason in Biraogos assertion that the petition covers matters of
transcendental importance to justify the exercise of jurisdiction by the Court. There are constitutional issues in the
petition which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents.
Where the issues are of transcendental and paramount importance not only to the public but also to the Bench and
30
the Bar, they should be resolved for the guidance of all. Undoubtedly, the Filipino people are more than interested to
know the status of the Presidents first effort to bring about a promised change to the country. The Court takes
cognizance of the petition not due to overwhelming political undertones that clothe the issue in the eyes of the public,
but because the Court stands firm in its oath to perform its constitutional duty to settle legal controversies with
overreaching significance to society.
Power of the President to Create the Truth Commission

In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office and not merely
31
an adjunct body of the Office of the President. Thus, in order that the President may create a public office he must
be empowered by the Constitution, a statute or an authorization vested in him by law. According to petitioner, such
32
power cannot be presumed since there is no provision in the Constitution or any specific law that authorizes the
33
President to create a truth commission. He adds that Section 31 of the Administrative Code of 1987, granting the
President the continuing authority to reorganize his office, cannot serve as basis for the creation of a truth commission
considering the aforesaid provision merely uses verbs such as "reorganize," "transfer," "consolidate," "merge," and
34
"abolish." Insofar as it vests in the President the plenary power to reorganize the Office of the President to the extent
of creating a public office, Section 31 is inconsistent with the principle of separation of powers enshrined in the
35
Constitution and must be deemed repealed upon the effectivity thereof.
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within the province of
Congress and not with the executive branch of government. They maintain that the delegated authority of the
President to reorganize under Section 31 of the Revised Administrative Code: 1) does not permit the President to
create a public office, much less a truth commission; 2) is limited to the reorganization of the administrative structure
of the Office of the President; 3) is limited to the restructuring of the internal organs of the Office of the President
Proper, transfer of functions and transfer of agencies; and 4) only to achieve simplicity, economy and
36
efficiency. Such continuing authority of the President to reorganize his office is limited, and by issuing Executive
Order No. 1, the President overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the creation by the President of a fact-finding
body such as a truth commission. Pointing to numerous offices created by past presidents, it argues that the authority
of the President to create public offices within the Office of the President Proper has long been
37
recognized. According to the OSG, the Executive, just like the other two branches of government, possesses the
inherent authority to create fact-finding committees to assist it in the performance of its constitutionally mandated
38
functions and in the exercise of its administrative functions. This power, as the OSG explains it, is but an adjunct of
the plenary powers wielded by the President under Section 1 and his power of control under Section 17, both of Article
39
VII of the Constitution.
It contends that the President is necessarily vested with the power to conduct fact-finding investigations, pursuant to
his duty to ensure that all laws are enforced by public officials and employees of his department and in the exercise of
his authority to assume directly the functions of the executive department, bureau and office, or interfere with the
40
discretion of his officials. The power of the President to investigate is not limited to the exercise of his power of
control over his subordinates in the executive branch, but extends further in the exercise of his other powers, such as
41
42
his power to discipline subordinates, his power for rule making, adjudication and licensing purposes and in order to
43
be informed on matters which he is entitled to know.
44

The OSG also cites the recent case of Banda v. Ermita, where it was held that the President has the power to
reorganize the offices and agencies in the executive department in line with his constitutionally granted power of
control and by virtue of a valid delegation of the legislative power to reorganize executive offices under existing
statutes.
Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For the OSG, the
President may create the PTC in order to, among others, put a closure to the reported large scale graft and corruption
45
in the government.
The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the power to
reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates "reorganization"
as limited by the following functional and structural lines: (1) restructuring the internal organization of the Office of the
President Proper by abolishing, consolidating or merging units thereof or transferring functions from one unit to
another; (2) transferring any function under the Office of the President to any other Department/Agency or vice versa;
or (3) transferring any agency under the Office of the President to any other Department/Agency or vice versa.
Clearly, the provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions. These point to situations where a body or an office is already existent but a
modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a misplaced
supposition, even in the plainest meaning attributable to the term "restructure" an "alteration of an existing structure."
Evidently, the PTC was not part of the structure of the Office of the President prior to the enactment of Executive
46
Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,
But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive
branch does not have to end here. We must not lose sight of the very source of the power that which constitutes an
express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the

Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the
Office of the President." For this purpose, he may transfer the functions of other Departments or Agencies to the
Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that reorganization "involves the
reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions."
It takes place when there is an alteration of the existing structure of government offices or units therein, including the
lines of control, authority and responsibility between them. The EIIB is a bureau attached to the Department of
Finance. It falls under the Office of the President. Hence, it is subject to the Presidents continuing authority to
reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the Presidents power of control. Control is essentially the
power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and
47
to substitute the judgment of the former with that of the latter. Clearly, the power of control is entirely different from
the power to create public offices. The former is inherent in the Executive, while the latter finds basis from either a
valid delegation from Congress, or his inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress, empowering the President to create a public
office?
According to the OSG, the power to create a truth commission pursuant to the above provision finds statutory basis
48
under P.D. 1416, as amended by P.D. No. 1772. The said law granted the President the continuing authority to
reorganize the national government, including the power to group, consolidate bureaus and agencies, to abolish
offices, to transfer functions, to create and classify functions, services and activities, transfer appropriations, and to
standardize salaries and materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has been
49
invoked in several cases such as Larin v. Executive Secretary.
The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a public office.
Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then President Marcos
of the authority to reorganize the administrative structure of the national government including the power to create
offices and transfer appropriations pursuant to one of the purposes of the decree, embodied in its last "Whereas"
clause:
WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the organization
of the national government.
Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D. No. 1416, as
amended by P.D. No. 1772, became functus oficio upon the convening of the First Congress, as expressly provided in
Section 6, Article XVIII of the 1987 Constitution. In fact, even the Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416 says "it
was enacted to prepare the transition from presidential to parliamentary. Now, in a parliamentary form of government,
the legislative and executive powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with me that P.D.
1416 should not be considered effective anymore upon the promulgation, adoption, ratification of the 1987
Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National Government is deemed
repealed, at least, upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.

50

While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as amended by P.D.
No. 1772, the creation of the PTC finds justification under Section 17, Article VII of the Constitution, imposing upon the
President the duty to ensure that the laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed. (Emphasis supplied).

As correctly pointed out by the respondents, the allocation of power in the three principal branches of government is a
grant of all powers inherent in them. The Presidents power to conduct investigations to aid him in ensuring the faithful
execution of laws in this case, fundamental laws on public accountability and transparency is inherent in the
Presidents powers as the Chief Executive. That the authority of the President to conduct investigations and to create
bodies to execute this power is not explicitly mentioned in the Constitution or in statutes does not mean that he is
51
52
bereft of such authority. As explained in the landmark case of Marcos v. Manglapus:
x x x. The 1987 Constitution, however, brought back the presidential system of government and restored the
separation of legislative, executive and judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is
head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless
the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only
one of the powers of the President. It also grants the President other powers that do not involve the execution of any
provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise
ofspecific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be
executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the
53
powers of the President are not limited to those specific powers under the Constitution. One of the recognized
powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc
committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed.
54
Thus, in Department of Health v. Camposano, the authority of the President to issue Administrative Order No. 298,
creating an investigative committee to look into the administrative charges filed against the employees of the
Department of Health for the anomalous purchase of medicines was upheld. In said case, it was ruled:
The Chief Executives power to create the Ad hoc Investigating Committee cannot be doubted. Having been
constitutionally granted full control of the Executive Department, to which respondents belong, the President has the
obligation to ensure that all executive officials and employees faithfully comply with the law. With AO 298 as mandate,
the legality of the investigation is sustained. Such validity is not affected by the fact that the investigating team and the
PCAGC had the same composition, or that the former used the offices and facilities of the latter in conducting the
inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters
which the President is entitled to know so that he can be properly advised and guided in the performance of his duties
relative to the execution and enforcement of the laws of the land. And if history is to be revisited, this was also the
objective of the investigative bodies created in the past like the PCAC, PCAPE, PARGO, the Feliciano Commission,
the Melo Commission and the Zenarosa Commission. There being no changes in the government structure, the Court
is not inclined to declare such executive power as non-existent just because the direction of the political winds have
changed.
On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the operation
of a public office, suffice it to say that there will be no appropriation but only an allotment or allocations of existing
funds already appropriated. Accordingly, there is no usurpation on the part of the Executive of the power of Congress
to appropriate funds. Further, there is no need to specify the amount to be earmarked for the operation of the
commission because, in the words of the Solicitor General, "whatever funds the Congress has provided for the Office
55
of the President will be the very source of the funds for the commission." Moreover, since the amount that would be
allocated to the PTC shall be subject to existing auditing rules and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The Presidents power to conduct investigations to ensure that laws are faithfully executed is well recognized. It flows
56
from the faithful-execution clause of the Constitution under Article VII, Section 17 thereof. As the Chief Executive,
the president represents the government as a whole and sees to it that all laws are enforced by the officials and
57
employees of his department. He has the authority to directly assume the functions of the executive department.

Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and corruption and to
recommend the appropriate action. As previously stated, no quasi-judicial powers have been vested in the said body
as it cannot adjudicate rights of persons who come before it. It has been said that "Quasi-judicial powers involve the
power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance
58
with the standards laid down by law itself in enforcing and administering the same law." In simpler terms, judicial
discretion is involved in the exercise of these quasi-judicial power, such that it is exclusively vested in the judiciary and
must be clearly authorized by the legislature in the case of administrative agencies.
The distinction between the power to investigate and the power to adjudicate was delineated by the Court in Cario v.
59
Commission on Human Rights. Thus:
"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study.
The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically: "to search or inquire
into: x x to subject to an official probe x x: to conduct an official inquiry." The purpose of investigation, of course, is to
discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or
resolving a controversy involved in the facts inquired into by application of the law to the facts established by the
inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful
inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation," "investigation"
being in turn described as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2
Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a
certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule
on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on
the merits of issues raised: x x to pass judgment on: settle judicially: x x act as judge." And "adjudge" means "to
decide or rule upon as a judge or with judicial or quasi-judicial powers: x x to award or grant judicially in a case of
controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or
decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and the entry of a judgment." [Italics
included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a quasijudicial agency or office. The function of receiving evidence and ascertaining therefrom the facts of a controversy is
not a judicial function. To be considered as such, the act of receiving evidence and arriving at factual conclusions in a
controversy must be accompanied by the authority of applying the law to the factual conclusions to the end that the
controversy may be decided or resolved authoritatively, finally and definitively, subject to appeals or modes of review
60
as may be provided by law. Even respondents themselves admit that the commission is bereft of any quasi-judicial
61
power.
Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective
powers. If at all, the investigative function of the commission will complement those of the two offices. As pointed out
by the Solicitor General, the recommendation to prosecute is but a consequence of the overall task of the commission
62
to conduct a fact-finding investigation." The actual prosecution of suspected offenders, much less adjudication on the
63
merits of the charges against them, is certainly not a function given to the commission. The phrase, "when in the
course of its investigation," under Section 2(g), highlights this fact and gives credence to a contrary interpretation from
that of the petitioners. The function of determining probable cause for the filing of the appropriate complaints before
64
the courts remains to be with the DOJ and the Ombudsman.
At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is not exclusive but is shared with other
65
similarly authorized government agencies. Thus, in the case of Ombudsman v. Galicia, it was written:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not
exclusive but is shared with other similarly authorized government agencies such as the PCGG and judges of
municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges
against public employees and officials is likewise concurrently shared with the Department of Justice. Despite the
passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the
President and the local Sanggunians to investigate complaints against local elective officials. [Emphasis supplied].

Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal cases under
Section 15 (1) of R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or
employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it may
take over, at any stage, from any investigatory agency of government, the investigation of such cases. [Emphases
supplied]
The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a preliminary
investigation or the determination of the existence of probable cause. This is categorically out of the PTCs sphere of
functions. Its power to investigate is limited to obtaining facts so that it can advise and guide the President in the
performance of his duties relative to the execution and enforcement of the laws of the land. In this regard, the PTC
commits no act of usurpation of the Ombudsmans primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book IV in the
Revised Administrative Code is by no means exclusive and, thus, can be shared with a body likewise tasked to
investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be accorded
conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano Commission and the Zenarosa
Commission, its findings would, at best, be recommendatory in nature. And being so, the Ombudsman and the DOJ
have a wider degree of latitude to decide whether or not to reject the recommendation. These offices, therefore, are
not deprived of their mandated duties but will instead be aided by the reports of the PTC for possible indictments for
violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds
difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal
protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They contend that
it does not apply equally to all members of the same class such that the intent of singling out the "previous
66
administration" as its sole object makes the PTC an "adventure in partisan hostility." Thus, in order to be accorded
with validity, the commission must also cover reports of graft and corruption in virtually all administrations previous to
67
that of former President Arroyo.
The petitioners argue that the search for truth behind the reported cases of graft and corruption must encompass acts
committed not only during the administration of former President Arroyo but also during prior administrations where
68
the "same magnitude of controversies and anomalies" were reported to have been committed against the Filipino
people. They assail the classification formulated by the respondents as it does not fall under the recognized
exceptions because first, "there is no substantial distinction between the group of officials targeted for investigation by
Executive Order No. 1 and other groups or persons who abused their public office for personal gain; and second, the
69
selective classification is not germane to the purpose of Executive Order No. 1 to end corruption." In order to attain
constitutional permission, the petitioners advocate that the commission should deal with "graft and grafters prior and
70
subsequent to the Arroyo administration with the strong arm of the law with equal force."
Position of respondents
According to respondents, while Executive Order No. 1 identifies the "previous administration" as the initial subject of
the investigation, following Section 17 thereof, the PTC will not confine itself to cases of large scale graft and
71
corruption solely during the said administration. Assuming arguendo that the commission would confine its
proceedings to officials of the previous administration, the petitioners argue that no offense is committed against the
equal protection clause for "the segregation of the transactions of public officers during the previous administration as
possible subjects of investigation is a valid classification based on substantial distinctions and is germane to the evils
72
which the Executive Order seeks to correct." To distinguish the Arroyo administration from past administrations, it
recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the previous
administration which have eroded public confidence in public institutions. There is, therefore, an urgent call for the

determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a
closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from
committing the evil, restore the peoples faith and confidence in the Government and in their public servants.
Second. The segregation of the preceding administration as the object of fact-finding is warranted by the reality that
unlike with administrations long gone, the current administration will most likely bear the immediate consequence of
the policies of the previous administration.
Third. The classification of the previous administration as a separate class for investigation lies in the reality that
the evidence of possible criminal activity, the evidence that could lead to recovery of public monies illegally dissipated,
the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed, are more easily
established in the regime that immediately precede the current administration.
Fourth. Many administrations subject the transactions of their predecessors to investigations to provide closure to
issues that are pivotal to national life or even as a routine measure of due diligence and good housekeeping by a
nascent administration like the Presidential Commission on Good Government (PCGG), created by the late President
Corazon C. Aquino under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of her predecessor former
President Ferdinand Marcos and his cronies, and the Saguisag Commission created by former President Joseph
Estrada under Administrative Order No, 53, to form an ad-hoc and independent citizens committee to investigate all
the facts and circumstances surrounding "Philippine Centennial projects" of his predecessor, former President Fidel V.
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Ramos. [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of the equality of right which is embodied in
Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a
separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
74
equal protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or things similarly situated
75
should be treated alike, both as to rights conferred and responsibilities imposed." It "requires public bodies and
76
institutions to treat similarly situated individuals in a similar manner." "The purpose of the equal protection clause is
to secure every person within a states jurisdiction against intentional and arbitrary discrimination, whether occasioned
77
by the express terms of a statue or by its improper execution through the states duly constituted authorities." "In
other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw
78
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective."
79

The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover
all the departments of the government including the political and executive departments, and extend to all actions of a
80
state denying equal protection of the laws, through whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things without distinction. What it
simply requires is equality among equals as determined according to a valid classification. Indeed, the equal
protection clause permits classification. Such classification, however, to be valid must pass the test
ofreasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.
82
classification."

81

"Superficial differences do not make for a valid

For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally
83
belong to the class. "The classification will be regarded as invalid if all the members of the class are not similarly
treated, both as to rights conferred and obligations imposed. It is not necessary that the classification be made with
absolute symmetry, in the sense that the members of the class should possess the same characteristics in equal
degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to
be treated equally. The mere fact that an individual belonging to a class differs from the other members, as long as
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that class is substantially distinguishable from all others, does not justify the non-application of the law to him."
The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the
number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar

circumstances and conditions. It must not leave out or "underinclude" those that should otherwise fall into a certain
85
86
classification. As elucidated in Victoriano v. Elizalde Rope Workers' Union and reiterated in a long line of cases,
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 state. 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. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal protection
clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth "concerning the
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reported cases of graft and corruption during the previous administration" only. The intent to single out the previous
administration is plain, patent and manifest. Mention of it has been made in at least three portions of the questioned
executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning
the reported cases of graft and corruption during the previous administration, and which will recommend the
prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION,
hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth on, and toward this end,
investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without
fear or favor.
SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative body
under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough factfinding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public
officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration and thereafter submit its finding and recommendations to the President, Congress and the
Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of
past administrations. It is not a class of its own. Not to include past administrations similarly situated constitutes
arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly
reverberates to label the commission as a vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the Arroyo administration and other past administrations,
these distinctions are not substantial enough to merit the restriction of the investigation to the "previous administration"
only. The reports of widespread corruption in the Arroyo administration cannot be taken as basis for distinguishing
said administration from earlier administrations which were also blemished by similar widespread reports of
impropriety. They are not inherent in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz put
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it, "Superficial differences do not make for a valid classification."
The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the intended investigation
to the previous administration only. The OSG ventures to opine that "to include other past administrations, at this
89
point, may unnecessarily overburden the commission and lead it to lose its effectiveness." The reason given is
specious. It is without doubt irrelevant to the legitimate and noble objective of the PTC to stamp out or "end corruption
90
and the evil it breeds."

The probability that there would be difficulty in unearthing evidence or that the earlier reports involving the earlier
administrations were already inquired into is beside the point. Obviously, deceased presidents and cases which have
already prescribed can no longer be the subjects of inquiry by the PTC. Neither is the PTC expected to conduct
simultaneous investigations of previous administrations, given the bodys limited time and resources. "The law does
91
not require the impossible" (Lex non cogit ad impossibilia).
Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of investigating
almost a centurys worth of graft cases. However, the fact remains that Executive Order No. 1 suffers from arbitrary
classification. The PTC, to be true to its mandate of searching for the truth, must not exclude the other past
administrations. The PTC must, at least, have the authority to investigate all past administrations. Whilereasonable
prioritization is permitted, it should not be arbitrary lest it be struck down for being unconstitutional. In the often
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quoted language of Yick Wo v. Hopkins,
Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by public
authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between
persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the
constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court, however, is of the
considered view that although its focus is restricted, the constitutional guarantee of equal protection under the laws
should not in any way be circumvented. The Constitution is the fundamental and paramount law of the nation to which
all other laws must conform and in accordance with which all private rights determined and all public authority
93
administered. Laws that do not conform to the Constitution should be stricken down for being
94
unconstitutional. While the thrust of the PTC is specific, that is, for investigation of acts of graft and corruption,
Executive Order No. 1, to survive, must be read together with the provisions of the Constitution. To exclude the earlier
administrations in the guise of "substantial distinctions" would only confirm the petitioners lament that the subject
95
executive order is only an "adventure in partisan hostility." In the case of US v. Cyprian, it was written: "A rather
limited number of such classifications have routinely been held or assumed to be arbitrary; those include: race,
national origin, gender, political activity or membership in a political party, union activity or membership in a labor
union, or more generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or embrace all
96
persons who naturally belong to the class. "Such a classification must not be based on existing circumstances only,
or so constituted as to preclude additions to the number included within a class, but must be of such a nature as to
embrace all those who may thereafter be in similar circumstances and conditions. Furthermore, all who are in
situations and circumstances which are relative to the discriminatory legislation and which are indistinguishable from
those of the members of the class must be brought under the influence of the law and treated by it in the same way as
97
are the members of the class."
The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the equal protection
98
clause." "Legislation is not unconstitutional merely because it is not all-embracing and does not include all the evils
99
within its reach." It has been written that a regulation challenged under the equal protection clause is not devoid of a
100
rational predicate simply because it happens to be incomplete. In several instances, the underinclusiveness was not
considered a valid reason to strike down a law or regulation where the purpose can be attained in future legislations or
101
regulations. These cases refer to the "step by step" process. "With regard to equal protection claims, a legislature
does not run the risk of losing the entire remedial scheme simply because it fails, through inadvertence or otherwise,
102
to cover every evil that might conceivably have been attacked."
In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked out was
deliberate and intentional as can be gleaned from the fact that it was underscored at least three times in the assailed
executive order. It must be noted that Executive Order No. 1 does not even mention any particular act, event or report
to be focused on unlike the investigative commissions created in the past. "The equal protection clause is violated by
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purposeful and intentional discrimination."
To disprove petitioners contention that there is deliberate discrimination, the OSG clarifies that the commission does
104
not only confine itself to cases of large scale graft and corruption committed during the previous administration. The
OSG points to Section 17 of Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to
expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and
instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by
way of a supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope of
investigations of the PTC so as to include the acts of graft and corruption committed in other past administrations, it

does not guarantee that they would be covered in the future. Such expanded mandate of the commission will still
depend on the whim and caprice of the President. If he would decide not to include them, the section would then be
meaningless. This will only fortify the fears of the petitioners that the Executive Order No. 1 was "crafted to tailor-fit the
105
prosecution of officials and personalities of the Arroyo administration."
106

The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan, that the "PCGG
Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate the equal protection clause." The decision,
however, was devoid of any discussion on how such conclusory statement was arrived at, the principal issue in said
case being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not the Supreme Court, in the exercise of its
constitutionally mandated power of Judicial Review with respect to recent initiatives of the legislature and the
executive department, is exercising undue interference. Is the Highest Tribunal, which is expected to be the protector
of the Constitution, itself guilty of violating fundamental tenets like the doctrine of separation of powers? Time and
again, this issue has been addressed by the Court, but it seems that the present political situation calls for it to once
again explain the legal basis of its action lest it continually be accused of being a hindrance to the nations thrust to
progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested with Judicial
Power that "includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave of abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to declare a
treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation unconstitutional. This power also includes the duty to rule on the constitutionality of the application, or
operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations. These
provisions, however, have been fertile grounds of conflict between the Supreme Court, on one hand, and the two coequal bodies of government, on the other. Many times the Court has been accused of asserting superiority over the
other departments.
To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit: "And when
the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to
107
establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them."
Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal body but rather
simply making sure that any act of government is done in consonance with the authorities and rights allocated to it by
the Constitution. And, if after said review, the Court finds no constitutional violations of any sort, then, it has no more
authority of proscribing the actions under review. Otherwise, the Court will not be deterred to pronounce said act as
void and unconstitutional.
It cannot be denied that most government actions are inspired with noble intentions, all geared towards the betterment
of the nation and its people. But then again, it is important to remember this ethical principle: "The end does not justify
the means." No matter how noble and worthy of admiration the purpose of an act, but if the means to be employed in
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accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still be allowed. The Court
cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined
principles.
"The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be
109
allowed to sap its strength nor greed for power debase its rectitude."
Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present
administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations would
allow it to pass the test of reasonableness and not be an affront to the Constitution. Of all the branches of the
government, it is the judiciary which is the most interested in knowing the truth and so it will not allow itself to be a
hindrance or obstacle to its attainment. It must, however, be emphasized that the search for the truth must be within
110
constitutional bounds for "ours is still a government of laws and not of men."
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONAL insofar
as it is violative of the equal protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the provisions of
Executive Order No. 1.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:

INUYA VS. SEC. ROMULO

ISABELITA C. VINUYA, VICTORIA C. DELA PEA, HERMINIHILDA, MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES
M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG, ESTER M.
PALACIO MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M. DELA PEA,
FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA
M.BUCO, PATRICIA A. ERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT,
JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S. BALINGIT, TERECITA
PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA,
LEONICIA G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD
L. TURLA, et al.
In their capacity and as members of the Malaya Lolas Organization,
versus THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF
FOREIGNAFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS
N. GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO
G.R. No. 162230, April 28, 2010
FACTS:
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a writ of
preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the DFA, the Secretary of the
DOJ, and the OSG.
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the SEC, established
for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World
War.
Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG, requesting
assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of the comfort
women stations in the Philippines. But officials of the Executive Department declined to assist the petitioners, and took the
position that the individual claims of the comfort women for compensation had already been fully satisfied by Japans compliance
with the Peace Treaty between the Philippines and Japan.
Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of discretion
amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against humanity and war crimes
committed against them; and (b) compel the respondents to espouse their claims for official apology and other forms of
reparations against Japan before the International Court of Justice (ICJ) and other international tribunals.
Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San Francisco
Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.
On January 15, 1997, the Asian Womens Fund and the Philippine government signed a Memorandum of Understanding for
medical and welfare support programs for former comfort women. Over the next five years, these were implemented by the
Department of Social Welfare and Development.
ISSUE:
WON the Executive Department committed grave abuse of discretion in not espousing petitioners claims for official apology and
other forms of reparations against Japan.
RULING:
Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine
whether to espouse petitioners claims against Japan.

Political questions refer to those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure.
One type of case of political questions involves questions of foreign relations. It is well-established that the conduct of the
foreign relations of our government is committed by the Constitution to the executive and legislativethe politicaldepartments
of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry
or decision. are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those
directly responsible to the people whose welfare they advance or imperil.
But not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe or
invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims of
its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to
the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The
wisdom of such decision is not for the courts to question.
The President, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic,
consular and other officials.
The Executive Department has determined that taking up petitioners cause would be inimical to our countrys foreign policy
interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region. For the to
overturn the Executive Departments determination would mean an assessment of the foreign policy judgments by a coordinate
political branch to which authority to make that judgment has been constitutionally committed.
From a municipal law perspective, certiorari will not lie. As a general principle, where such an extraordinary length of time has
lapsed between the treatys conclusion and our consideration the Executive must be given ample discretion to assess the foreign
policy considerations of espousing a claim against Japan, from the standpoint of both the interests of the petitioners and those of
the Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate or necessary.
In the international sphere, traditionally, the only means available for individuals to bring a claim within the international legal
system has been when the individual is able to persuade a government to bring a claim on the individuals behalf. By taking up the
case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in
reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law.
Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose behalf it is acting
consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to
national law, if means are available, with a view to furthering their cause or obtaining redress. All these questions remain within
the province of municipal law and do not affect the position internationally.
Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Petitioners have not shown that
the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the
duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing obligations
owed by States towards the community of states as a whole. Essential distinction should be drawn between the obligations of a
State towards the international community as a whole, and those arising vis--vis another State in the field of diplomatic
protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection; they are obligations erga omnes.
The term jus cogens (literally, compelling law) refers to norms that command peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation,
and can be modified only by general international norms of equivalent authority
WHEREFORE, the Petition is hereby DISMISSED.

G.R. No. 162230

April 28, 2010

ISABELITA C. VINUYA, VICTORIA C. DELA PEA, HERMINIHILDA MANIMBO, LEONOR H. SUMAWANG,

CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO,
LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG,
ESTER M. PALACIO, MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M.
DELA PEA, EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P.
MALLARI, ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C. CALMA,
MARTA A. GULAPA, TEODORA M. HERNANDEZ, FERMIN B. DELA PEA, MARIA DELA PAZ B. CULALA,
ESPERANZA MANAPOL, JUANITA M. BRIONES, VERGINIA M. GUEVARRA, MAXIMA ANGULO, EMILIA
SANGIL, TEOFILA R. PUNZALAN, JANUARIA G. GARCIA, PERLA B. BALINGIT, BELEN A. CULALA,
PILAR Q. GALANG, ROSARIO C. BUCO, GAUDENCIA C. DELA PEA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ,
ROSALINA M. BUCO, PATRICIA A. BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C.
BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S. BALINGIT,
TERECITA PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA,
MAXIMA B. TURLA, LEONICIA G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA
T. SAGUM, CARIDAD L. TURLA, et al. In their capacity and as members of the "Malaya Lolas
Organization", Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF
FOREIGN AFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE SECRETARY OF JUSTICE
MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L.
BENIPAYO, Respondents.
DECISION
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted by plaintiffs in these
actions, exchanged full compensation of plaintiffs for a future peace. History has vindicated the wisdom of that
bargain. And while full compensation for plaintiffs' hardships, in the purely economic sense, has been denied
these former prisoners and countless other survivors of the war, the immeasurable bounty of life for themselves
and their posterity in a free society and in a more peaceful world services the debt.1
There is a broad range of vitally important areas that must be regularly decided by the Executive Department
without either challenge or interference by the Judiciary. One such area involves the delicate arena of foreign
relations. It would be strange indeed if the courts and the executive spoke with different voices in the realm of
foreign policy. Precisely because of the nature of the questions presented, and the lapse of more than 60 years
since the conduct complained of, we make no attempt to lay down general guidelines covering other situations
not involved here, and confine the opinion only to the very questions necessary to reach a decision on this
matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance
of a writ of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the
Department of Foreign Affairs (DFA), the Secretary of the Department of Justice (DOJ), and the Office of the
Solicitor General (OSG).
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the
Securities and Exchange Commission, established for the purpose of providing aid to the victims of rape by
Japanese military forces in the Philippines during the Second World War.
ten.lihpwal

Petitioners narrate that during the Second World War, the Japanese army attacked villages and systematically
raped the women as part of the destruction of the village. Their communities were bombed, houses were looted
and burned, and civilians were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized
the women and held them in houses or cells, where they were repeatedly raped, beaten, and abused by
Japanese soldiers. As a result of the actions of their Japanese tormentors, the petitioners have spent their lives
in misery, having endured physical injuries, pain and disability, and mental and emotional suffering.2

Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and
OSG, requesting assistance in filing a claim against the Japanese officials and military officers who ordered the
establishment of the "comfort women" stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the comfort women for
compensation had already been fully satisfied by Japans compliance with the Peace Treaty between the
Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse
of discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against
humanity and war crimes committed against them; and (b) compel the respondents to espouse their claims for
official apology and other forms of reparations against Japan before the International Court of Justice (ICJ) and
other international tribunals.
Petitioners arguments
Petitioners argue that the general waiver of claims made by the Philippine government in the Treaty of Peace
with Japan is void. They claim that the comfort women system established by Japan, and the brutal rape and
enslavement of petitioners constituted a crime against humanity,3 sexual slavery,4 and torture.5 They allege that
the prohibition against these international crimes is jus cogens norms from which no derogation is possible; as
such, in waiving the claims of Filipina comfort women and failing to espouse their complaints against Japan, the
Philippine government is in breach of its legal obligation not to afford impunity for crimes against humanity.
Finally, petitioners assert that the Philippine governments acceptance of the "apologies" made by Japan as well
as funds from the Asian Womens Fund (AWF) were contrary to international law.
Respondents Arguments
Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the
San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.6
Article 14 of the Treaty of Peace7 provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering
caused by it during the war. Nevertheless it is also recognized that the resources of Japan are not
presently sufficient, if it is to maintain a viable economy, to make complete reparation for all such
damage and suffering and at the present time meet its other obligations.
b) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of
the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken
by Japan and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for
direct military costs of occupation.
In addition, respondents argue that the apologies made by Japan8 have been satisfactory, and that Japan had
addressed the individual claims of the women through the atonement money paid by the Asian Womens Fund.

1avvphi1

Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking. In December 1937, Japanese military
forces captured the city of Nanking in China and began a "barbaric campaign of terror" known as the Rape of
Nanking, which included the rapes and murders of an estimated 20,000 to 80,000 Chinese women, including
young girls, pregnant mothers, and elderly women.9 Document1zzF24331552898
In reaction to international outcry over the incident, the Japanese government sought ways to end international
condemnation10 by establishing the "comfort women" system. Under this system, the military could
simultaneously appease soldiers' sexual appetites and contain soldiers' activities within a regulated
environment.11 Comfort stations would also prevent the spread of venereal disease among soldiers and
discourage soldiers from raping inhabitants of occupied territories.12

Daily life as a comfort woman was "unmitigated misery."13 The military forced victims into barracks-style stations
divided into tiny cubicles where they were forced to live, sleep, and have sex with as many 30 soldiers per
day.14The 30 minutes allotted for sexual relations with each soldier were 30-minute increments of unimaginable
horror for the women.15 Disease was rampant.16 Military doctors regularly examined the women, but these
checks were carried out to prevent the spread of venereal diseases; little notice was taken of the frequent
cigarette burns, bruises, bayonet stabs and even broken bones inflicted on the women by
soldiers. Document1zzF48331552898
Fewer than 30% of the women survived the war.17 Their agony continued in having to suffer with the residual
physical, psychological, and emotional scars from their former lives. Some returned home and were ostracized
by their families. Some committed suicide. Others, out of shame, never returned home.18
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept legal responsibility and pay
compensatory damages for the comfort women system were through a series of lawsuits, discussion at the
United Nations (UN), resolutions by various nations, and the Womens International Criminal Tribunal. The
Japanese government, in turn, responded through a series of public apologies and the creation of the AWF.19
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by former comfort
women against the Japanese government. The Tokyo District Court however dismissed their case.20 Other suits
followed,21 but the Japanese government has, thus far, successfully caused the dismissal of every case.22
Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the comfort women system
brought their claims before the United States (US). On September 18, 2000, 15 comfort women filed a class
action lawsuit in the US District Court for the District of Columbia23 "seeking money damages for [allegedly]
having been subjected to sexual slavery and torture before and during World War II," in violation of "both positive
and customary international law." The case was filed pursuant to the Alien Tort Claims Act ("ATCA"),24 which
allowed the plaintiffs to sue the Japanese government in a US federal district court.25 On October 4, 2001, the
district court dismissed the lawsuit due to lack of jurisdiction over Japan, stating that "[t]here is no question that
this court is not the appropriate forum in which plaintiffs may seek to reopen x x x discussions nearly half a
century later x x x [E]ven if Japan did not enjoy sovereign immunity, plaintiffs' claims are non-justiciable and
must be dismissed."
The District of Columbia Court of Appeals affirmed the lower court's dismissal of the case.26 On appeal, the US
Supreme Court granted the womens petition for writ of certiorari, vacated the judgment of the District of
Columbia Court of Appeals, and remanded the case.27 On remand, the Court of Appeals affirmed its prior
decision, noting that "much as we may feel for the plight of the appellants, the courts of the US simply are not
authorized to hear their case."28 The women again brought their case to the US Supreme Court which denied
their petition for writ of certiorari on February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan (KCWS), submitted a
petition to the UN Human Rights Commission (UNHRC), asking for assistance in investigating crimes committed
by Japan against Korean women and seeking reparations for former comfort women.29 The UNHRC placed the
issue on its agenda and appointed Radhika Coomaraswamy as the issue's special investigator. In 1996,
Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean women to act as sex slaves
for the imperial army, and made the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial Army during the
Second World War was a violation of its obligations under international law and accept legal
responsibility for that violation;

(b) Pay compensation to individual victims of Japanese military sexual slavery according to principles
outlined by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities on the right to restitution, compensation and rehabilitation for victims of grave
violations of human rights and fundamental freedoms. A special administrative tribunal for this purpose
should be set up with a limited time-frame since many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and materials in its possession with regard to comfort stations
and other related activities of the Japanese Imperial Army during the Second World War;
(d) Make a public apology in writing to individual women who have come forward and can be
substantiated as women victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to reflect historical realities;
(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and institutionalization
of comfort stations during the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of Discrimination and
Protection of Minorities, also presented a report to the Sub-Committee on June 22, 1998 entitled Contemporary
Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict. The
report included an appendix entitled An Analysis of the Legal Liability of the Government of Japan for 'Comfort
Women Stations' established during the Second World War,30 which contained the following findings:
68. The present report concludes that the Japanese Government remains liable for grave violations of human
rights and humanitarian law, violations that amount in their totality to crimes against humanity. The Japanese
Governments arguments to the contrary, including arguments that seek to attack the underlying humanitarian
law prohibition of enslavement and rape, remain as unpersuasive today as they were when they were first raised
before the Nuremberg war crimes tribunal more than 50 years ago. In addition, the Japanese Governments
argument that Japan has already settled all claims from the Second World War through peace treaties and
reparations agreements following the war remains equally unpersuasive. This is due, in large part, to the failure
until very recently of the Japanese Government to admit the extent of the Japanese militarys direct involvement
in the establishment and maintenance of these rape centres. The Japanese Governments silence on this point
during the period in which peace and reparations agreements between Japan and other Asian Governments
were being negotiated following the end of the war must, as a matter of law and justice, preclude Japan from
relying today on these peace treaties to extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the cessation of hostilities is a testament to
the degree to which the lives of women continue to be undervalued. Sadly, this failure to address crimes of a
sexual nature committed on a massive scale during the Second World War has added to the level of impunity
with which similar crimes are committed today. The Government of Japan has taken some steps to apologize
and atone for the rape and enslavement of over 200,000 women and girls who were brutalized in "comfort
stations" during the Second World War. However, anything less than full and unqualified acceptance by the
Government of Japan of legal liability and the consequences that flow from such liability is wholly inadequate. It
must now fall to the Government of Japan to take the necessary final steps to provide adequate redress.
The UN, since then, has not taken any official action directing Japan to provide the reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal" established by a number of
Asian women and human rights organizations, supported by an international coalition of non-governmental
organizations.31 First proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to "adjudicate Japan's
military sexual violence, in particular the enslavement of comfort women, to bring those responsible for it to
justice, and to end the ongoing cycle of impunity for wartime sexual violence against women."
After examining the evidence for more than a year, the "tribunal" issued its verdict on December 4, 2001, finding
the former Emperor Hirohito and the State of Japan guilty of crimes against humanity for the rape and sexual
slavery of women.32 It bears stressing, however, that although the tribunal included prosecutors, witnesses, and
judges, its judgment was not legally binding since the tribunal itself was organized by private citizens.

Action by Individual Governments

On January 31, 2007, US Representative Michael Honda of California, along with six co-sponsor
representatives, introduced House Resolution 121 which called for Japanese action in light of the ongoing
struggle for closure by former comfort women. The Resolution was formally passed on July 30, 2007,33 and
made four distinct demands:
[I]t is the sense of the House of Representatives that the Government of Japan (1) should formally acknowledge,
apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces'
coercion of young women into sexual slavery, known to the world as "comfort women", during its colonial and
wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II; (2)
would help to resolve recurring questions about the sincerity and status of prior statements if the Prime Minister
of Japan were to make such an apology as a public statement in his official capacity; (3) should clearly and
publicly refute any claims that the sexual enslavement and trafficking of the "comfort women" for the Japanese
Imperial Army never occurred; and (4) should educate current and future generations about this horrible crime
while following the recommendations of the international community with respect to the "comfort women."34
In December 2007, the European Parliament, the governing body of the European Union, drafted a resolution
similar to House Resolution 121.35 Entitled, "Justice for Comfort Women," the resolution demanded: (1) a formal
acknowledgment of responsibility by the Japanese government; (2) a removal of the legal obstacles preventing
compensation; and (3) unabridged education of the past. The resolution also stressed the urgency with which
Japan should act on these issues, stating: "the right of individuals to claim reparations against the government
should be expressly recognized in national law, and cases for reparations for the survivors of sexual slavery, as
a crime under international law, should be prioritized, taking into account the age of the survivors."
The Canadian and Dutch parliaments have each followed suit in drafting resolutions against Japan. Canada's
resolution demands the Japanese government to issue a formal apology, to admit that its Imperial Military
coerced or forced hundreds of thousands of women into sexual slavery, and to restore references in Japanese
textbooks to its war crimes.36 The Dutch parliament's resolution calls for the Japanese government to uphold the
1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdoms Parliament also produced a report in November, 2008
entitled, "Global Security: Japan and Korea" which concluded that Japan should acknowledge the pain caused
by the issue of comfort women in order to ensure cooperation between Japan and Korea.
Statements of Remorse made by representatives of the Japanese government
Various officials of the Government of Japan have issued the following public statements concerning the comfort
system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the issue of wartime "comfort women" since
December 1991. I wish to announce the findings as a result of that study.
As a result of the study which indicates that comfort stations were operated in extensive areas for long periods, it
is apparent that there existed a great number of comfort women. Comfort stations were operated in response to
the request of the military authorities of the day. The then Japanese military was, directly or indirectly, involved in
the establishment and management of the comfort stations and the transfer of comfort women. The recruitment
of the comfort women was conducted mainly by private recruiters who acted in response to the request of the
military. The Government study has revealed that in many cases they were recruited against their own will,
through coaxing coercion, etc., and that, at times, administrative/military personnel directly took part in the
recruitments. They lived in misery at comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to the war areas, excluding those from Japan,
those from the Korean Peninsula accounted for a large part. The Korean Peninsula was under Japanese rule in
those days, and their recruitment, transfer, control, etc., were conducted generally against their will, through
coaxing, coercion, etc.
Undeniably, this was an act, with the involvement of the military authorities of the day, that severely injured the
honor and dignity of many women. The Government of Japan would like to take this opportunity once again to

extend its sincere apologies and remorse to all those, irrespective of place of origin, who suffered immeasurable
pain and incurable physical and psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to continue to consider seriously, while listening to the views
of learned circles, how best we can express this sentiment.
We shall face squarely the historical facts as described above instead of evading them, and take them to heart
as lessons of history. We hereby reiterated our firm determination never to repeat the same mistake by forever
engraving such issues in our memories through the study and teaching of history.
As actions have been brought to court in Japan and interests have been shown in this issue outside Japan, the
Government of Japan shall continue to pay full attention to this matter, including private researched related
thereto.
b) Prime Minister Tomiichi Murayamas Statement in 1994
On the issue of wartime "comfort women", which seriously stained the honor and dignity of many women, I
would like to take this opportunity once again to express my profound and sincere remorse and apologies"
c) Letters from the Prime Minister of Japan to Individual Comfort Women
The issue of comfort women, with the involvement of the Japanese military authorities at that time, was a grave
affront to the honor and dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse to all the women who
endured immeasurable and painful experiences and suffered incurable physical and psychological wounds as
comfort women.
I believe that our country, painfully aware of its moral responsibilities, with feelings of apology and remorse,
should face up squarely to its past history and accurately convey it to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of colonial rule and acts of aggression that occurred in modern
world history, and recognizing that Japan carried out such acts in the past and inflicted suffering on the people of
other countries, especially in Asia, the Members of this House hereby express deep remorse. (Resolution of the
House of Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last year, and recently as well, and to the press. I have been
consistent. I will stand by the Kono Statement. This is our consistent position. Further, we have been apologizing
sincerely to those who suffered immeasurable pain and incurable psychological wounds as comfort women.
Former Prime Ministers, including Prime Ministers Koizumi and Hashimoto, have issued letters to the comfort
women. I would like to be clear that I carry the same feeling. This has not changed even slightly. (Excerpt from
Remarks by Prime Minister Abe at an Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated in the statement by the
Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime Minister Abe at the Budget Committee, the
House of Councilors, the Diet of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort women who suffered hardships, and I have expressed my
apologies for the extremely agonizing circumstances into which they were placed. (Excerpt from Telephone
Conference by Prime Minister Abe to President George W. Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to those people who were taken as wartime comfort
women. As a human being, I would like to express my sympathies, and also as prime minister of Japan I need to
apologize to them. My administration has been saying all along that we continue to stand by the Kono
Statement. We feel responsible for having forced these women to go through that hardship and pain as comfort
women under the circumstances at the time. (Excerpt from an interview article "A Conversation with Shinzo Abe"
by the Washington Post, April 22, 2007).

x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to all those who suffered
extreme hardships as comfort women; and I expressed my apologies for the fact that they were forced to endure
such extreme and harsh conditions. Human rights are violated in many parts of the world during the 20th
Century; therefore we must work to make the 21st Century a wonderful century in which no human rights are
violated. And the Government of Japan and I wish to make significant contributions to that end. (Excerpt from
Prime Minister Abe's remarks at the Joint Press Availability after the summit meeting at Camp David between
Prime Minister Abe and President Bush, April 27, 2007).
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF represented the government's concrete attempt to
address its moral responsibility by offering monetary compensation to victims of the comfort women
system.37The purpose of the AWF was to show atonement of the Japanese people through expressions of
apology and remorse to the former wartime comfort women, to restore their honor, and to demonstrate Japans
strong respect for women.38
The AWF announced three programs for former comfort women who applied for assistance: (1) an atonement
fund paying 2 million (approximately $20,000) to each woman; (2) medical and welfare support programs,
paying 2.5-3 million ($25,000-$30,000) for each woman; and (3) a letter of apology from the Japanese Prime
Minister to each woman. Funding for the program came from the Japanese government and private donations
from the Japanese people. As of March 2006, the AWF provided 700 million (approximately $7 million) for
these programs in South Korea, Taiwan, and the Philippines; 380 million (approximately $3.8 million) in
Indonesia; and 242 million (approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a Memorandum of Understanding for
medical and welfare support programs for former comfort women. Over the next five years, these were
implemented by the Department of Social Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive Department committed grave
abuse of discretion in not espousing petitioners claims for official apology and other forms of reparations against
Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine
whether to espouse petitioners claims against Japan.
Baker v. Carr39 remains the starting point for analysis under the political question doctrine. There the US
Supreme Court explained that:
x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable
and manageable standards for resolving it, or the impossibility of deciding without an initial policy determination
of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on question.
In Taada v. Cuenco,40 we held that political questions refer "to those questions which, under the Constitution,
are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the legislative or executive branch of the government. It is concerned with issues dependent
upon the wisdom, not legality of a particular measure."
Certain types of cases often have been found to present political questions.41 One such category involves
questions of foreign relations. It is well-established that "[t]he conduct of the foreign relations of our government
is committed by the Constitution to the executive and legislative--'the political'--departments of the government,
and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or
decision."42 The US Supreme Court has further cautioned that decisions relating to foreign policy

are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by
those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for
which the Judiciary has neither aptitude, facilities nor responsibility.43
To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess
the authority to construe or invalidate treaties and executive agreements.44 However, the question whether the
Philippine government should espouse claims of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political
branches. In this case, the Executive Department has already decided that it is to the best interest of the country
to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of
such decision is not for the courts to question. Neither could petitioners herein assail the said determination by
the Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,45 the US Supreme Court held that "[t]he President is
the sole organ of the nation in its external relations, and its sole representative with foreign relations."
It is quite apparent that if, in the maintenance of our international relations, embarrassment -- perhaps serious
embarrassment -- is to be avoided and success for our aims achieved, congressional legislation which is to be
made effective through negotiation and inquiry within the international field must often accord to the President a
degree of discretion and freedom from statutory restriction which would not be admissible where domestic affairs
alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail
in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He
has his agents in the form of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v. Executive Secretary46 and Pimentel v.
Executive Secretary;47 its overreaching principle was, perhaps, best articulated in (now Chief) Justice Punos
dissent in Secretary of Justice v. Lantion:48
x x x The conduct of foreign relations is full of complexities and consequences, sometimes with life and death
significance to the nation especially in times of war. It can only be entrusted to that department of government
which can act on the basis of the best available information and can decide with decisiveness. x x x It is also the
President who possesses the most comprehensive and the most confidential information about foreign countries
for our diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also
unlimited access to ultra-sensitive military intelligence data. In fine, the presidential role in foreign affairs is
dominant and the President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs.
The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of confidence,
national embarrassment and a plethora of other problems with equally undesirable consequences.
The Executive Department has determined that taking up petitioners cause would be inimical to our countrys
foreign policy interests, and could disrupt our relations with Japan, thereby creating serious implications for
stability in this region. For us to overturn the Executive Departments determination would mean an assessment
of the foreign policy judgments by a coordinate political branch to which authority to make that judgment has
been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine government was without authority to
negotiate the Treaty of Peace with Japan. And it is equally true that, since time immemorial, when negotiating
peace accords and settling international claims:
x x x [g]overnments have dealt with x x x private claims as their own, treating them as national assets, and as
counters, `chips', in international bargaining. Settlement agreements have lumped, or linked, claims deriving
from private debts with others that were intergovernmental in origin, and concessions in regard to one category
of claims might be set off against concessions in the other, or against larger political considerations unrelated to
debts.49
Indeed, except as an agreement might otherwise provide, international settlements generally wipe out the
underlying private claims, thereby terminating any recourse under domestic law. In Ware v. Hylton,50 a case
brought by a British subject to recover a debt confiscated by the Commonwealth of Virginia during the war,
Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded, neither
the matter in dispute, nor the conduct of either party, during the war, can ever be revived, or brought into contest

again. All violences, injuries, or damages sustained by the government, or people of either, during the war, are
buried in oblivion; and all those things are implied by the very treaty of peace; and therefore not necessary to be
expressed. Hence it follows, that the restitution of, or compensation for, British property confiscated, or
extinguished, during the war, by any of the United States, could only be provided for by the treaty of peace;
and if there had been no provision, respecting these subjects, in the treaty, they could not be agitated after the
treaty, by the British government, much less by her subjects in courts of justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is certainly nothing new. For instance, in Dames &
Moore v. Regan,51 the US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by nationals of one country against the
government of another country are "sources of friction" between the two sovereigns. United States v. Pink, 315
U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have often entered
into agreements settling the claims of their respective nationals. As one treatise writer puts it, international
agreements settling claims by nationals of one state against the government of another "are established
international practice reflecting traditional international theory." L. Henkin, Foreign Affairs and the Constitution
262 (1972). Consistent with that principle, the United States has repeatedly exercised its sovereign authority to
settle the claims of its nationals against foreign countries. x x x Under such agreements, the President has
agreed to renounce or extinguish claims of United States nationals against foreign governments in return for
lump-sum payments or the establishment of arbitration procedures. To be sure, many of these settlements were
encouraged by the United States claimants themselves, since a claimant's only hope of obtaining any payment
at all might lie in having his Government negotiate a diplomatic settlement on his behalf. But it is also undisputed
that the "United States has sometimes disposed of the claims of its citizens without their consent, or even
without consultation with them, usually without exclusive regard for their interests, as distinguished from those of
the nation as a whole." Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations Law of
the United States 213 (1965) (President "may waive or settle a claim against a foreign state x x x [even]
without the consent of the [injured] national"). It is clear that the practice of settling claims continues today.
Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not necessarily for the
complete atonement of the suffering caused by Japanese aggression during the war, not for the payment of
adequate reparations, but for security purposes. The treaty sought to prevent the spread of communism in
Japan, which occupied a strategic position in the Far East. Thus, the Peace Treaty compromised individual
claims in the collective interest of the free world.
This was also the finding in a similar case involving American victims of Japanese slave labor during the
war.52 In a consolidated case in the Northern District of California,53 the court dismissed the lawsuits filed, relying
on the 1951 peace treaty with Japan,54 because of the following policy considerations:
The official record of treaty negotiations establishes that a fundamental goal of the agreement was to settle the
reparations issue once and for all. As the statement of the chief United States negotiator, John Foster Dulles,
makes clear, it was well understood that leaving open the possibility of future claims would be an unacceptable
impediment to a lasting peace:
Reparation is usually the most controversial aspect of peacemaking. The present peace is no exception.
On the one hand, there are claims both vast and just. Japan's aggression caused tremendous cost, losses and
suffering.
On the other hand, to meet these claims, there stands a Japan presently reduced to four home islands which are
unable to produce the food its people need to live, or the raw materials they need to work. x x x
The policy of the United States that Japanese liability for reparations should be sharply limited was informed by
the experience of six years of United States-led occupation of Japan. During the occupation the Supreme
Commander of the Allied Powers (SCAP) for the region, General Douglas MacArthur, confiscated Japanese
assets in conjunction with the task of managing the economic affairs of the vanquished nation and with a view to
reparations payments. It soon became clear that Japan's financial condition would render any aggressive
reparations plan an exercise in futility. Meanwhile, the importance of a stable, democratic Japan as a bulwark to
communism in the region increased. At the end of 1948, MacArthur expressed the view that "[t]he use of
reparations as a weapon to retard the reconstruction of a viable economy in Japan should be combated with all
possible means" and "recommended that the reparations issue be settled finally and without delay."

That this policy was embodied in the treaty is clear not only from the negotiations history but also from the
Senate Foreign Relations Committee report recommending approval of the treaty by the Senate. The committee
noted, for example:
Obviously insistence upon the payment of reparations in any proportion commensurate with the claims of the
injured countries and their nationals would wreck Japan's economy, dissipate any credit that it may possess at
present, destroy the initiative of its people, and create misery and chaos in which the seeds of discontent and
communism would flourish. In short, [it] would be contrary to the basic purposes and policy of x x x the United
States x x x.
We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general principle and
particularly here, where such an extraordinary length of time has lapsed between the treatys conclusion and our
consideration the Executive must be given ample discretion to assess the foreign policy considerations of
espousing a claim against Japan, from the standpoint of both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate or
necessary.
The Philippines is not under any international obligation to espouse petitioners claims.
In the international sphere, traditionally, the only means available for individuals to bring a claim within the
international legal system has been when the individual is able to persuade a government to bring a claim on the
individuals behalf.55 Even then, it is not the individuals rights that are being asserted, but rather, the states own
rights. Nowhere is this position more clearly reflected than in the dictum of the Permanent Court of International
Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects,
respect for the rules of international law. The question, therefore, whether the present dispute originates in an
injury to a private interest, which in point of fact is the case in many international disputes, is irrelevant from this
standpoint. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in
the eyes of the latter the State is sole claimant.56
Since the exercise of diplomatic protection is the right of the State, reliance on the right is within the absolute
discretion of states, and the decision whether to exercise the discretion may invariably be influenced by political
considerations other than the legal merits of the particular claim.57 As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by international law, a State may exercise
diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is
asserting. Should the natural or legal person on whose behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international law. All they can do is resort to national law, if means
are available, with a view to furthering their cause or obtaining redress. The municipal legislator may lay upon
the State an obligation to protect its citizens abroad, and may also confer upon the national a right to demand
the performance of that obligation, and clothe the right with corresponding sanctions. However, all these
questions remain within the province of municipal law and do not affect the position internationally.58 (Emphasis
supplied)
1aww phi 1

The State, therefore, is the sole judge to decide whether its protection will be granted, to what extent it is
granted, and when will it cease. It retains, in this respect, a discretionary power the exercise of which may be
determined by considerations of a political or other nature, unrelated to the particular case.
The International Law Commissions (ILCs) Draft Articles on Diplomatic Protection fully support this traditional
view. They (i) state that "the right of diplomatic protection belongs to or vests in the State,"59 (ii) affirm its
discretionary nature by clarifying that diplomatic protection is a "sovereign prerogative" of the State;60 and (iii)
stress that the state "has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do so."61
It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act on his/her
behalf when rights are injured.62 However, at present, there is no sufficient evidence to establish a general

international obligation for States to exercise diplomatic protection of their own nationals abroad.63 Though,
perhaps desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a duty
internationally, it is only a moral and not a legal duty, and there is no means of enforcing its fulfillment.64
1avvphi1

We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally
prohibited under contemporary international law.65 However, petitioners take quite a theoretical leap in claiming
that these proscriptions automatically imply that that the Philippines is under a non-derogable obligation to
prosecute international crimes, particularly since petitioners do not demand the imputation of individual criminal
liability, but seek to recover monetary reparations from the state of Japan. Absent the consent of states, an
applicable treaty regime, or a directive by the Security Council, there is no non-derogable duty to institute
proceedings against Japan. Indeed, precisely because of states reluctance to directly prosecute claims against
another state, recent developments support the modern trend to empower individuals to directly participate in
suits against perpetrators of international crimes.66 Nonetheless, notwithstanding an array of General Assembly
resolutions calling for the prosecution of crimes against humanity and the strong policy arguments warranting
such a rule, the practice of states does not yet support the present existence of an obligation to prosecute
international crimes.67 Of course a customary duty of prosecution is ideal, but we cannot find enough evidence to
reasonably assert its existence. To the extent that any state practice in this area is widespread, it is in the
practice of granting amnesties, immunity, selective prosecution, or de facto impunity to those who commit crimes
against humanity."68
Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we
sidestep the question of whether jus cogens norms existed in 1951, petitioners have not deigned to show that
the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was
signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has
attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term
describingobligations owed by States towards the community of states as a whole. The concept was recognized
by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a State towards the international
community as a whole, and those arising vis--vis another State in the field of diplomatic protection. By their very
nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be
held to have a legal interest in their protection; they are obligations erga
omnes.http://www.search.com/reference/Erga_omnes - _note-0#_note-0
Such obligations derive, for example, in contemporary international law, from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human
person, including protection from slavery and racial discrimination. Some of the corresponding rights of
protection have entered into the body of general international law others are conferred by international
instruments of a universal or quasi-universal character.
The Latin phrase, erga omnes, has since become one of the rallying cries of those sharing a belief in the
emergence of a value-based international public order. However, as is so often the case, the reality is neither so
clear nor so bright. Whatever the relevance of obligations erga omnes as a legal concept, its full potential
remains to be realized in practice.69
The term is closely connected with the international law concept of jus cogens. In international law, the term "jus
cogens" (literally, "compelling law") refers to norms that command peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general international norms of equivalent authority.70
Early strains of the jus cogens doctrine have existed since the 1700s,71 but peremptory norms began to attract
greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden
Treaties in International Law.72 The recognition of jus cogens gained even more force in the 1950s and 1960s
with the ILCs preparation of the Vienna Convention on the Law of Treaties (VCLT).73 Though there was a
consensus that certain international norms had attained the status of jus cogens,74 the ILC was unable to reach a
consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that
"there is not as yet any generally accepted criterion by which to identify a general rule of international law as
having the character of jus cogens."75 In a commentary accompanying the draft convention, the ILC indicated

that "the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice
and in the jurisprudence of international tribunals."76 Thus, while the existence of jus cogens in international law
is undisputed, no consensus exists on its substance,77 beyond a tiny core of principles and rules.78
Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to comprehend the
unimaginable horror they underwent at the hands of the Japanese soldiers. We are also deeply concerned that,
in apparent contravention of fundamental principles of law, the petitioners appear to be without a remedy to
challenge those that have offended them before appropriate fora. Needless to say, our government should take
the lead in protecting its citizens against violation of their fundamental human rights. Regrettably, it is not within
our power to order the Executive Department to take up the petitioners cause. Ours is only the power
to urgeand exhort the Executive Department to take up petitioners cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:

DE CASTRO VS. JBC Leave a comment

ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL
ARROYO
G.R. No. 191002, March 17, 2010
FACTS: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming
presidential elections on May 10, 2010.
These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice
Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that
vacancy shall be filled within ninety days from the occurrence thereof from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy. Also considering that Section 15, Article VII (Executive Department) of the
Constitution prohibits the President or Acting President from making appointments within two months immediately before the
next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public safety.
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief
Justice.
Conformably with its existing practice, the JBC automatically considered for the position of Chief Justice the five most senior
of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona;
Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B.
Nachura. However, the last two declined their nomination through letters dated January 18, 2010 and January 25, 2010,
respectively.
The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15,
Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme
Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; that had the
framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the
Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII
(Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the Presidents
power to appoint members of the Supreme Court to ensure its independence from political vicissitudes and its insulation from
political pressures, such as stringent qualifications for the positions, the establishment of the JBC, the specified period within
which the President shall appoint a Supreme Court Justice.
A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence
from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17,
2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision
of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the
Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy.
ISSUE: Whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement.
HELD:
Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other
appointments to the Judiciary.
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next
presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a
Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members.
Any vacancy shall be filled within ninety days from the occurrence thereof.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the
Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They
would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President or Acting President making appointments within

two months before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to
the Members of the Supreme Court.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the
Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They
would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President or Acting President making appointments within
two months before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to
the Members of the Supreme Court.
Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to
appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive
that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the
statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and
kept subservient to the general intent of the whole enactment. It is absurd to assume that the framers deliberately situated Section
15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their
intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a
similar prohibition in Article VIII, most likely within Section 4 (1) thereof.

G.R. No. 191002

April 20, 2010

ARTURO M. DE CASTRO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL - ARROYO,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO
APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL
UNION OF PEOPLES LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE
PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past President, ATTY.
ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of the
PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG BAYAN (BAYAN)
CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M.
REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN
NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO;
ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN
(ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR
ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK
TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES
(NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE
PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN
MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA
GUEVARRA; WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL
LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBING-

JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA.

VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and
GUINEVERE DE LEON; AQUILINO Q. PIMENTEL, JR.; Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B.
INTING (IBP Governor-Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO,
Respondents.
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149,
and the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit;
and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be
created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the position of Chief
Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the
Judiciary and submit to the President the short list of nominees corresponding thereto in
accordance with this decision.
SO ORDERED.
Motions for Reconsideration

Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting (G.R. No.
191342), and Philippine Bar Association (G.R. No. 191420), as well as intervenors Integrated Bar of the
Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera;
Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers
Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell John L. Boiser; and Walden F. Bello
and Loretta Ann P. Rosales (Bello, et al.), filed their respective motions for reconsideration. Also filing a
motion for reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated intervention was allowed.
We summarize the arguments and submissions of the various motions for reconsideration, in the aforegiven
order:
Soriano
1. The Court has not squarely ruled upon or addressed the issue of whether or not the power to
designate the Chief Justice belonged to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because it sought a mere declaratory judgment
and did not involve a justiciable controversy.
3. All Justices of the Court should participate in the next deliberations. The mere fact that the Chief
Justice sits as ex officio head of the JBC should not prevail over the more compelling state interest
for him to participate as a Member of the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an interpretation that exempts judicial
appointments from the express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made distinctions and has created
exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because it limits an
executive, not a judicial, power.
4. Resort to the deliberations of the Constitutional Commission is superfluous, and is powerless to
vary the terms of the clear prohibition.
5. The Court has given too much credit to the position taken by Justice Regalado. Thereby, the Court
has raised the Constitution to the level of a venerated text whose intent can only be divined by its
framers as to be outside the realm of understanding by the sovereign people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question the illegal
composition of the JBC.
Philippine Bar Association
1. The Courts strained interpretation of the Constitution violates the basic principle that the Court
should not formulate a rule of constitutional law broader than what is required by the precise facts of
the case.
2. Considering that Section 15, Article VII is clear and straightforward, the only duty of the Court is
to apply it. The provision expressly and clearly provides a general limitation on the appointing power

of the President in prohibiting the appointment of any person to any position in the Government
without any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against midnight
appointments.
4. The Constitution has installed two constitutional safeguards:- the prohibition against midnight
appointments, and the creation of the JBC. It is not within the authority of the Court to prefer one
over the other, for the Courts duty is to apply the safeguards as they are, not as the Court likes them
to be.
5. The Court has erred in failing to apply the basic principles of statutory construction in interpreting
the Constitution.
6. The Court has erred in relying heavily on the title, chapter or section headings, despite precedents
on statutory construction holding that such headings carried very little weight.
7. The Constitution has provided a general rule on midnight appointments, and the only exception is
that on temporary appointments to executive positions.
8. The Court has erred in directing the JBC to resume the proceedings for the nomination of the
candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Puno with
a view to submitting the list of nominees for Chief Justice to President Arroyo on or before May 17,
2010. The Constitution grants the Court only the power of supervision over the JBC; hence, the
Court cannot tell the JBC what to do, how to do it, or when to do it, especially in the absence of a
real and justiciable case assailing any specific action or inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion and has indulged in speculations.
10. The constitutional ban on appointments being already in effect, the Courts directing the JBC to
comply with the decision constitutes a culpable violation of the Constitution and the commission of
an election offense.
11. The Court cannot reverse on the basis of a secondary authority a doctrine unanimously
formulated by the Court en banc.
12. The practice has been for the most senior Justice to act as Chief Justice whenever the incumbent
is indisposed. Thus, the appointment of the successor Chief Justice is not urgently necessary.
13. The principal purpose for the ban on midnight appointments is to arrest any attempt to prolong
the outgoing Presidents powers by means of proxies. The attempt of the incumbent President to
appoint the next Chief Justice is undeniably intended to perpetuate her power beyond her term of
office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to
appointments to the Judiciary. Hence, no cogent reason exists to warrant the reversal of the
Valenzuela pronouncement.
2. Section 16, Article VII of the Constitution provides for presidential appointments to the
Constitutional Commissions and the JBC with the consent of the Commission on Appointments. Its
phrase "other officers whose appointments are vested in him in this Constitution" is enough proof
that the limitation on the appointing power of the President extends to appointments to the Judiciary.

Thus, Section 14, Section 15, and Section 16 of Article VII apply to all presidential appointments in
the Executive and Judicial Branches of the Government.
3. There is no evidence that the framers of the Constitution abhorred the idea of an Acting Chief
Justice in all cases.
Lim
1. There is no justiciable controversy that warrants the Courts exercise of judicial review.
2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy in the
Court and to other appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the safeguard under Section 15 of Article
VII against midnight appointments in the Judiciary.
Corvera
1. The Courts exclusion of appointments to the Judiciary from the Constitutional ban on midnight
appointments is based on an interpretation beyond the plain and unequivocal language of the
Constitution.
2. The intent of the ban on midnight appointments is to cover appointments in both the Executive and
Judicial Departments. The application of the principle of verba legis (ordinary meaning) would have
obviated dwelling on the organization and arrangement of the provisions of the Constitution. If there
is any ambiguity in Section 15, Article VII, the intent behind the provision, which is to prevent
political partisanship in all branches of the Government, should have controlled.
3. A plain reading is preferred to a contorted and strained interpretation based on
compartmentalization and physical arrangement, especially considering that the Constitution must be
interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation of the framers of the Constitution
should yield to the plain and unequivocal language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and in accord
with the Constitution.
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not
present a justiciable controversy. The issues it raised were not yet ripe for adjudication, considering
that the office of the Chief Justice was not yet vacant and that the JBC itself has yet to decide
whether or not to submit a list of nominees to the President.
2. The collective wisdom of Valenzuela Court is more important and compelling than the opinion of
Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the Court has
violated the principle of ut magis valeat quam pereat (which mandates that the Constitution should
be interpreted as a whole, such that any conflicting provisions are to be harmonized as to fully give
effect to all). There is no conflict between the provisions; they complement each other.

4. The form and structure of the Constitutions titles, chapters, sections, and draftsmanship carry
little weight in statutory construction. The clear and plain language of Section 15, Article VII
precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or controversy. The clash of legal rights and
interests in the present case are merely anticipated. Even if it is anticipated with certainty, no actual
vacancy in the position of the Chief Justice has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the Judiciary
runs in conflict with long standing principles and doctrines of statutory construction. The provision
admits only one exception, temporary appointments in the Executive Department. Thus, the Court
should not distinguish, because the law itself makes no distinction.
3. Valenzuela was erroneously reversed. The framers of the Constitution clearly intended the ban on
midnight appointments to cover the members of the Judiciary. Hence, giving more weight to the
opinion of Justice Regalado to reverse the en banc decision in Valenzuela was unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day mandate to
fill any vacancy lasts until August 15, 2010, or a month and a half after the end of the ban. The next
President has roughly the same time of 45 days as the incumbent President (i.e., 44 days) within
which to scrutinize and study the qualifications of the next Chief Justice. Thus, the JBC has more
than enough opportunity to examine the nominees without haste and political uncertainty.1avvphi1
5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article VIII is
suspended.
6. There is no basis to direct the JBC to submit the list of nominees on or before May 17, 2010. The
directive to the JBC sanctions a culpable violation of the Constitution and constitutes an election
offense.
7. There is no pressing necessity for the appointment of a Chief Justice, because the Court sits en
banc, even when it acts as the sole judge of all contests relative to the election, returns and
qualifications of the President and Vice-President. Fourteen other Members of the Court can validly
comprise the Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees for Chief
Justice to the President on or before May 17, 2010, and to continue its proceedings for the
nomination of the candidates, because it granted a relief not prayed for; imposed on the JBC a
deadline not provided by law or the Constitution; exercised control instead of mere supervision over
the JBC; and lacked sufficient votes to reverse Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of statutory
construction to the effect that the literal meaning of the law must be applied when it is clear and
unambiguous; and that we should not distinguish where the law does not distinguish.
3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary Act of 1948
already provides that the power and duties of the office devolve on the most senior Associate Justice
in case of a vacancy in the office of the Chief Justice.
Ubano

1. The language of Section 15, Article VII, being clear and unequivocal, needs no interpretation
2. The Constitution must be construed in its entirety, not by resort to the organization and
arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the pertinent
records of the Constitutional Commission are clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of nominees to the President by May 17,
2010 at the latest, because no specific law requires the JBC to submit the list of nominees even
before the vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the ban on midnight appointments is the
temporary appointment to an executive position. The limitation is in keeping with the clear intent of
the framers of the Constitution to place a restriction on the power of the outgoing Chief Executive to
make appointments.
2. To exempt the appointment of the next Chief Justice from the ban on midnight appointments
makes the appointee beholden to the outgoing Chief Executive, and compromises the independence
of the Chief Justice by having the outgoing President be continually influential.
3. The Courts reversal of Valenzuela without stating the sufficient reason violates the principle of
stare decisis.
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing President is
prohibited from making within the prescribed period. Plain textual reading and the records of the
Constitutional Commission support the view that the ban on midnight appointments extends to
judicial appointments.
2. Supervision of the JBC by the Court involves oversight. The subordinate subject to oversight must
first act not in accord with prescribed rules before the act can be redone to conform to the prescribed
rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not
present a justiciable controversy.
Pimentel
1. Any constitutional interpretative changes must be reasonable, rational, and conformable to the
general intent of the Constitution as a limitation to the powers of Government and as a bastion for the
protection of the rights of the people. Thus, in harmonizing seemingly conflicting provisions of the
Constitution, the interpretation should always be one that protects the citizenry from an ever
expanding grant of authority to its representatives.
2. The decision expands the constitutional powers of the President in a manner totally repugnant to
republican constitutional democracy, and is tantamount to a judicial amendment of the Constitution
without proper authority.
Comments

The Office of the Solicitor General (OSG) and the JBC separately represent in their respective comments,
thus:
OSG
1. The JBC may be compelled to submit to the President a short list of its nominees for the position
of Chief Justice.
2. The incumbent President has the power to appoint the next Chief Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the exemption of the Judiciary from the ban on
midnight appointments.1awph!1
5. The Court has the duty to consider and resolve all issues raised by the parties as well as other
related matters.
JBC
1. The consolidated petitions should have been dismissed for prematurity, because the JBC has not
yet decided at the time the petitions were filed whether the incumbent President has the power to
appoint the new Chief Justice, and because the JBC, having yet to interview the candidates, has not
submitted a short list to the President.
2. The statement in the decision that there is a doubt on whether a JBC short list is necessary for the
President to appoint a Chief Justice should be struck down as bereft of constitutional and legal basis.
The statement undermines the independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in accord with its constitutional mandate
and its implementing rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the OSG
and the JBC were the only ones the Court has required to do so. He states that the motions for
reconsideration were directed at the administrative matter he initiated and which the Court resolved. His
comment asserts:
1. The grounds of the motions for reconsideration were already resolved by the decision and the
separate opinion.
2. The administrative matter he brought invoked the Courts power of supervision over the JBC as
provided by Section 8(1), Article VIII of the Constitution, as distinguished from the Courts
adjudicatory power under Section 1, Article VIII. In the former, the requisites for judicial review are
not required, which was why Valenzuela was docketed as an administrative matter. Considering that
the JBC itself has yet to take a position on when to submit the short list to the proper appointing
authority, it has effectively solicited the exercise by the Court of its power of supervision over the
JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend the
Constitution.
4. The portions of the deliberations of the Constitutional Commission quoted in the dissent of Justice
Carpio Morales, as well as in some of the motions for reconsideration do not refer to either Section
15, Article VII or Section 4(1), Article VIII, but to Section 13, Article VII (on nepotism).

Ruling
We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised and
argued, not being new, have all been resolved by the decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis is controlling, and accordingly insist
that the Court has erred in disobeying or abandoning Valenzuela.1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to adhere to
precedent and not to unsettle things that are settled. It simply means that a principle underlying the decision
in one case is deemed of imperative authority, controlling the decisions of like cases in the same court and in
lower courts within the same jurisdiction, unless and until the decision in question is reversed or overruled
by a court of competent authority. The decisions relied upon as precedents are commonly those of appellate
courts, because the decisions of the trial courts may be appealed to higher courts and for that reason are
probably not the best evidence of the rules of law laid down. 2
Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the actuations, not
only of those called upon to abide by them, but also of those duty-bound to enforce obedience to them.3 In a
hierarchical judicial system like ours, the decisions of the higher courts bind the lower courts, but the courts
of co-ordinate authority do not bind each other. The one highest court does not bind itself, being invested
with the innate authority to rule according to its best lights.4
The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus, the
Court, especially with a new membership, is not obliged to follow blindly a particular decision that it
determines, after re-examination, to call for a rectification.5 The adherence to precedents is strict and rigid in
a common-law setting like the United Kingdom, where judges make law as binding as an Act of
Parliament.6 But ours is not a common-law system; hence, judicial precedents are not always strictly and
rigidly followed. A judicial pronouncement in an earlier decision may be followed as a precedent in a
subsequent case only when its reasoning and justification are relevant, and the court in the latter case accepts
such reasoning and justification to be applicable to the case. The application of the precedent is for the sake
of convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or reversed, and that
its wisdom should guide, if not control, the Court in this case is, therefore, devoid of rationality and
foundation. They seem to conveniently forget that the Constitution itself recognizes the innate authority of
the Court en banc to modify or reverse a doctrine or principle of law laid down in any decision rendered en
banc or in division.7
Second: Some intervenors are grossly misleading the public by their insistence that the Constitutional
Commission extended to the Judiciary the ban on presidential appointments during the period stated in
Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from the records of the Constitutional
Commission did not concern either Section 15, Article VII or Section 4(1), Article VIII, but only Section 13,
Article VII, a provision on nepotism. The records of the Constitutional Commission show that
Commissioner Hilario G. Davide, Jr. had proposed to include judges and justices related to the President
within the fourth civil degree of consanguinity or affinity among the persons whom the President might not
appoint during his or her tenure. In the end, however, Commissioner Davide, Jr. withdrew the proposal to
include the Judiciary in Section 13, Article VII "(t)o avoid any further complication,"8 such that the final

version of the second paragraph of Section 13, Article VII even completely omits any reference to the
Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not
during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries.
Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to
appointments in the Judiciary. They aver that the Court either ignored or refused to apply many principles of
statutory construction.
The movants gravely err in their posture, and are themselves apparently contravening their avowed reliance
on the principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of the express extension of the
ban on appointments to the Judiciary, insist that the ban applied to the Judiciary under the principle of verba
legis. That is self-contradiction at its worst.
Another instance is the movants unhesitating willingness to read into Section 4(1) and Section 9, both of
Article VIII, the express applicability of the ban under Section 15, Article VII during the period provided
therein, despite the silence of said provisions thereon. Yet, construction cannot supply the omission, for
doing so would generally constitute an encroachment upon the field of the Constitutional Commission.
Rather, Section 4(1) and Section 9 should be left as they are, given that their meaning is clear and explicit,
and no words can be interpolated in them.9 Interpolation of words is unnecessary, because the law is more
than likely to fail to express the legislative intent with the interpolation. In other words, the addition of new
words may alter the thought intended to be conveyed. And, even where the meaning of the law is clear and
sensible, either with or without the omitted word or words, interpolation is improper, because the primary
source of the legislative intent is in the language of the law itself.10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment
of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the
meticulous ordering of the provisions. They would have easily and surely written the prohibition made
explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the
Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was
not done only reveals that the prohibition against the President or Acting President making appointments
within two months before the next presidential elections and up to the end of the Presidents or Acting
Presidents term does not refer to the Members of the Supreme Court.
We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to suit the
purposes of any quarter.
Final Word
It has been insinuated as part of the polemics attendant to the controversy we are resolving that because all
the Members of the present Court were appointed by the incumbent President, a majority of them are now
granting to her the authority to appoint the successor of the retiring Chief Justice.
The insinuation is misguided and utterly unfair.

The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any claim
to the contrary proceeds from malice and condescension. Neither the outgoing President nor the present
Members of the Court had arranged the current situation to happen and to evolve as it has. None of the
Members of the Court could have prevented the Members composing the Court when she assumed the
Presidency about a decade ago from retiring during her prolonged term and tenure, for their retirements were
mandatory. Yet, she is now left with an imperative duty under the Constitution to fill up the vacancies
created by such inexorable retirements within 90 days from their occurrence. Her official duty she must
comply with. So must we ours who are tasked by the Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with finality.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

NERI VS. SENATE COMMITTEE Leave a comment

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
G.R. No. 180643, March 25, 2008
FACTS:
1.

2.
3.
4.

5.
6.

On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong
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.
The Senate passed various resolutions relative to the NBN deal.
In the September 18, 2007 hearing 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.
Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon.
He appeared in one hearing wherein he was interrogated for 11 hrs and during which he admitted that Abalos of
COMELEC tried to bribe him with P200M 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,

(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.

He later refused to attend the other hearings and Ermita sent a letter to the senate averring that the communications between GMA
and Neri are privileged and that the jurisprudence laid down in Senate vs Ermita be applied. He was cited in contempt of
respondent committees and an order for his arrest and detention until such time that he would appear and give his testimony.
ISSUE:
Are the communications elicited by the subject three (3) questions covered by executive privilege?
HELD:
The communications are covered by executive privilege
The revocation of EO 464 (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 when they are invited to legislative inquiries in aid of
legislation.), does not in any way diminish the concept of executive privilege. This is because this concept has Constitutional
underpinnings.
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, appointing, pardoning, and diplomatic powers. Consistent with the doctrine of separation of
powers, the information relating to these powers may enjoy greater confidentiality than others.
Several jurisprudence cited provide the elements of presidential communications privilege:
1) The protected communication must relate to a quintessential and non-delegable 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.

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.
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.
Respondent Committees further contend that the grant of petitioners claim of executive privilege violates the constitutional
provisions on the 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.

G.R. No. 180643

March 25, 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.
DECISION
LEONARDO-DE CASTRO, J.:
At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show cause Letter1 dated November 22, 2007
and contempt Order2 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
Security5 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 Zhong 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 People's
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 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 petitioner's 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 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. 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 petitioner's 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 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, 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 Committee's 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 (sic) Committees and ordered arrested and detained in the Office of the Senate SergeantAt-Arms 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 country's 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. Ermita10 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 2413 (e) of Rule 130 of the Rules of Court.

Respondent Committees assert the contrary. They argue that (1) petitioner's 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 petitioner's 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 People's
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 Court's 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 latter's "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 body's 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 OSG's motion the next day, March 18, 2008.
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. Ermita17 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. Ermita18 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. On the other hand, 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 Court's pronouncement in Senate v. Ermita20 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 Court's certiorari 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 Act23 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 Ermita's Letter dated November 15, 2007 limits 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 President's performance of his official duties." It thus considered presidential communications as "presumptively
privileged." Apparently, the presumption is founded on the "President's 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 President's 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 ones31 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 President's 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 President's 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 Case's
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. PCGG38, 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
diplomatic43 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 must relate to a "quintessential and non-delegable 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 People's 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 Arroyo's 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 v. Sirica,46 where it was held that presidential communications 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. Nixon48 that "demonstrated, specific need for evidence in
pending criminal trial" outweighs the President's "generalized interest in confidentiality." However, the present case's 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 President's 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, on 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
Committee's 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'
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 petitioner's claim of executive privilege violates the constitutional
provisions on the 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 22952 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 people's right to public information. The former cannot claim that every legislative inquiry is an exercise of
the people's 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 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.
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.
B- The 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 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.
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.
Bautista's 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 v. 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 petitioner's repeated demands, respondent Committees did not send him an 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 was 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 disobeys
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 thank you very much to the members
SEN. PIMENTEL. Mr. Chairman.
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 socalled "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 it's 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 I'd 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, I'd 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 it's 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 OSG's
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 Senate's 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 14 th 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
same quality afflicted their conduct when they (a) disregarded petitioner's motion for reconsideration alleging that he had filed the
present petition before this Court and (b) ignored petitioner's repeated request for an 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 the 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 of 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 Court's 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.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario,
Velasco, Jr., Nachura, Reyes, Brion, JJ., concur.

RE: PETITION FOR RECOGNITION OF THE EXEMPTION OF THE GSIS FROM PAYMENT
OF LEGAL FEES.
A.M. No. 08-2-01-0
February 11, 2010
FACTS:
The GSIS seeks exemption from the payment of legal fees imposed on GOCCs under Sec 22, Rule 141
(Legal Fees) of the ROC. The said provision states:
SEC. 22. Government exempt. The Republic of the Philippines, its agencies and instrumentalities are
exempt from paying the legal fees provided in this Rule. Local government corporations and governmentowned or controlled corporations with or without independent charter are not exempt from paying such fees.
xx
The GSIS anchors its petition on Sec 39 of its charter, RA 8291 (The GSIS Act of 1997):
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 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. xx
Required to comment on the GSIS petition, the OSG maintains that the petition should be denied. On this
Courts order, the Office of the Chief Attorney (OCAT) submitted a report and recommendation on the
petition of the GSIS and the comment of the OSG thereon. According to the OCAT, the claim of the GSIS
for exemption from the payment of legal fees has no legal basis.
ISSUE: May the legislature exempt the GSIS from legal fees imposed by the Court on GOCCs and local
government units?
HELD: WHEREFORE, the petition of the GSIS for recognition of its exemption from the payment of legal
fees imposed under Sec 22 of Rule 141 of the ROC on GOCCs and LGUs is hereby DENIED .
NO
Rule 141 (on Legal Fees) of the ROC was promulgated by this Court in the exercise of its rule-making
powers under Sec 5(5), Art VIII of the Constitution:
Sec. 5. The Supreme Court shall have the following powers:
xxxxxxxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to
the underprivileged.
xxxxxxxx
Clearly, therefore, the payment of legal fees under Rule 141 of the ROC is an integral part of the rules
promulgated by this Court pursuant to its rule-making power under Section 5(5), Article VIII of the
Constitution. In particular, it is part of the rules concerning pleading, practice and procedure in courts.

Indeed, payment of legal (or docket) fees is a jurisdictional requirement.

Since the payment of legal fees is a vital component of the rules promulgated by this Court concerning
pleading, practice and procedure, it cannot be validly annulled, changed or modified by Congress. As one of
the safeguards of this Courts institutional independence, the power to promulgate rules of pleading, practice
and procedure is now the Courts exclusive domain. That power is no longer shared by this Court with
Congress, much less with the Executive.
NOTES:
-The GSIS cannot successfully invoke the right to social security of government employees in support of its
petition. It is a corporate entity whose personality is separate and distinct from that of its individual
members. The rights of its members are not its rights; its rights, powers and functions pertain to it solely and
are not shared by its members.
-Congress could not have carved out an exemption for the GSIS from the payment of legal fees without
transgressing another equally important institutional safeguard of the Courts independence fiscal
autonomy. Fiscal autonomy recognizes the power and authority of the Court to levy, assess and collect fees,
including legal fees. Moreover, legal fees under Rule 141 have two basic components, the Judiciary
Development Fund (JDF) and the Special Allowance for the Judiciary Fund (SAJF). The laws which
established the JDF and the SAJF[33] expressly declare the identical purpose of these funds to guarantee
the independence of the Judiciary as mandated by the Constitution and public policy. Legal fees therefore
do not only constitute a vital source of the Courts financial resources but also comprise an essential element
of the Courts fiscal independence. Any exemption from the payment of legal fees granted by Congress to
government-owned or controlled corporations and local government units will necessarily reduce the JDF
and the SAJF. Undoubtedly, such situation is constitutionally infirm for it impairs the Courts guaranteed
fiscal autonomy and erodes its independence.
-Speaking for the Court, then Associate Justice (now Chief Justice) Reynato S. Puno traced the history of the
rule-making power of this Court and highlighted its evolution and development in Echegaray v. Secretary of
Justice:
Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading, practice and
procedure was granted but it appeared to be co-existent with legislative power for it was subject to the power
of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:
Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and
procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of
the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading,
practice and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power
of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter or
supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law
in the Philippines.
The said power of Congress, however, is not as absolute as it may appear on its surface. In In re Cunanan,
Congress in the exercise of its power to amend rules of the Supreme Court regarding admission to the
practice of law, enacted the Bar Flunkers Act of 1953 which considered as a passing grade, the average of
70% in the bar examinations after July 4, 1946 up to August 1951 and 71% in the 1952 bar examinations.
This Court struck down the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that x x x the
disputed law is not a legislation; it is a judgment a judgment promulgated by this Court during the
aforecited years affecting the bar candidates concerned; and although this Court certainly can revoke these
judgments even now, for justifiable reasons, it is no less certain that only this Court, and not the legislative
nor executive department, that may do so. Any attempt on the part of these departments would be a clear
usurpation of its function, as is the case with the law in question. The venerable jurist further ruled: It is
obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this
Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say,

merely to fix the minimum conditions for the license. By its ruling, this Court qualified the absolutist tone
of the power of Congress to repeal, alter or supplement the rules concerning pleading, practice and
procedure, and the admission to the practice of law in the Philippines.
The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973
Constitution reiterated the power of this Court to promulgate rules concerning pleading, practice and
procedure in all courts, x x x which, however, may be repealed, altered or supplemented by the Batasang
Pambansa x x x. More completely, Section 5(2)5 of its Article X provided:
xxxxxxxxx
Sec. 5. The Supreme Court shall have the following powers.
xxxxxxxxx
(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice
of law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the
Batasang Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights.
Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by
giving to it the additional power to promulgate rules governing the integration of the Bar.
The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced
the rule making power of this Court. Its Section 5(5), Article VIII provides:
xxxxxxxxx
Section 5. The Supreme Court shall have the following powers:
xxxxxxxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice
and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court.
The rule making power of this Court was expanded. This Court for the first time was given the power to
promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also
granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial
bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or
supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of
pleading, practice and procedure is no longer shared by this Court with Congress, more so with the
Executive.

G.R. Nos. 177857-58

September 4, 2012

PHILIPPINE COCONUT PRODUCERS FEDERATION, INC. (COCOFED), MANUEL V. DEL

ROSARIO, DOMINGO P. ESPINA, SALVADOR P. BALLARES, JOSELITO A. MORALEDA, PAZ
M. YASON, VICENTE A. CADIZ, CESARIA DE LUNA TITULAR, and RAYMUNDO C. DE
VILLA, Petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
WIGBERTO E. TAADA, OSCAR F. SANTOS, SURIGAO DEL SUR FEDERATION OF
AGRICULTURAL COOPERATIVES (SUFAC) and MORO FARMERS ASSOCIATION OF
ZAMBOANGA DEL SUR (MOFAZS), represented by ROMEO C. ROYANDOYAN, Intervenors.
x-----------------------x
G.R. No. 178193
DANILO B. URSUA, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
RESOLUTION
VELASCO, JR., J.:
For consideration is a Motion for Reconsideration of the Decision of the Court dated January 24, 2012
interposed by petitioners in G.R. Nos. 177857-58, namely: Philippine Coconut Producers Federation, Inc.
(COCOFED), Manuel V. del Rosario, Domingo P. Espina, Salvador P. Ballares, Joselito A. Moraleda, Paz
M. Yason, Vicente A. Cadiz, Cesaria De Luna Titular, and Raymundo C. De Villa.
On March 14, 2012, petitioner-movants filed a Manifestation and Motion stating that they failed to include
the Office of the Solicitor General (OSG) in the list of persons to be furnished with a copy of the Motion for
Reconsideration. They accordingly moved that their belated service of a copy of the Motion for
Reconsideration on the OSG be considered compliance with the rules on service of motions for
reconsideration. This Court noted and accepted the Manifestation and Motion. On March 15, 2012,
petitioner-movants filed a Memorandum in support of the instant motion for reconsideration.
To the said motion, intervenors Wigberto E. Taada, et al. filed on June 10, 2012 their Comment and
Opposition. The OSG, on the other hand, after filing two motions for extension on May 22, 2012 and June
21, 2012, respectively, filed its Motion to Admit Comment, with Comment attached, on July 13, 2012. This
Court noted and admitted the Comment.
As will be recalled, the Court, in its January 24, 2012 Decision, affirmed, with modification, the Partial
Summary Judgments (PSJs) rendered by the Sandiganbayan (1) on July 11, 2003 in Civil Case No. 0033-A
(PSJ-A), as amended by a Resolution issued on June 5, 2007; and (2) on
May 7, 2004 in Civil Case No. 0033-F (PSJ-F), as amended by a Resolution issued on May 11, 2007.
In this recourse, petitioner-movants urge the Court to reconsider its Decision of January 24, 2012 on the
ground that it:
1. Made erroneous findings of fact;
2. Erred in affirming the Sandiganbayans jurisdiction of the subject matter of the subdivided
amended complaints;

3. Erred in ruling that due process was not violated;

4. Erred in ruling on the constitutionality of the coconut levy laws;
5. Erred in ruling that the Operative Fact Doctrine does not apply; and
6. Erred in ruling that the right to speedy disposition of cases was not violated.
The instant motion is but a mere reiteration or rehash of the arguments that have already been previously
pleaded, discussed and resolved by this Court in its January 24, 2012 Decision. And considering that the
motions arguments are unsubstantial to warrant a reconsideration or at least a modification, this Court finds
no reason to modify or let alone reverse the challenged Decision.
As of 1983,1 the Class A and B San Miguel Corporation (SMC) common shares in the names of the 14 CIIF
Holding Companies are 33,133,266 shares. From 1983 to November 19, 2009 when the Republic of the
Philippines representing the Presidential Commission on Good Government (PCGG) filed the "Motion To
Approve Sale of CIIF SMC Series I Preferred Shares," the common shares of the CIIF Holding companies
increased to 753,848,312 Class A and B SMC common shares.2
Owing, however, to a certain development that altered the factual situation then obtaining in G.R. Nos.
177857-58, there is, therefore, a compelling need to clarify the fallo of the January 24, 2012 Decision to
reconcile it, vis-a-vis the shares of stocks in SMC which were declared owned by the Government, with this
development. We refer to the Resolution3 issued by the Court on September 17, 2009 in the then
consolidated cases docketed as G.R. Nos. 177857-58, G.R. No. 178193 and G.R. No. 180705. In that
Resolution which has long become final and executory, the Court, upon motion of COCOFED and with the
approval of the Presidential Commission on Good Government, granted the conversion of 753,848,312
Class "A" and Class "B" SMC common shares registered in the name of the CIIF companies to SMC Series
1 Preferred Shares of 753,848,312, subject to certain terms and conditions. The dispositive portion of the
aforementioned Resolution states:
WHEREFORE, the Court APPROVES the conversion of the 753,848,312 SMC Common Shares registered
in the name of CIIF companies to SMC SERIES 1 PREFERRED SHARES of 753,848,312, the converted
shares to be registered in the names of CIIF companies in accordance with the terms and conditions
specified in the conversion offer set forth in SMCs Information Statement and appended as Annex "A" of
COCOFEDs Urgent Motion to Approve the Conversion of the CIIF SMC Common Shares into SMC Series
1 Preferred Shares. The preferred shares shall remain in custodia legis and their ownership shall be subject
to the final ownership determination of the Court. Until the ownership issue has been resolved, the preferred
shares in the name of the CIIF companies shall be placed under sequestration and PCGG management.
(Emphasis added.)
The net dividend earnings and/or redemption proceeds from the Series 1 Preferred Shares shall be deposited
in an escrow account with the Land Bank of the Philippines or the Development Bank of the Philippines.
Respondent Republic, thru the PCGG, is hereby directed to cause the CIIF companies, including their
respective directors, officers, employees, agents, and all other persons acting in their behalf, to perform such
acts and execute such documents as required to effectuate the conversion of the common shares into SMC
Series 1 Preferred Shares, within ten (10) days from receipt of this Resolution.
Once the conversion is accomplished, the SMC Common Shares previously registered in the names of the
CIIF companies shall be released from sequestration.
SO ORDERED.4
The CIIF block of SMC shares, as converted, is the same shares of stocks that are subject matter of, and
declared as owned by the Government in, the January 24, 2012 Decision. Hence, the need to clarify.

WHEREFORE, the Court resolves to DENY with FINALITY the instant Motion for Reconsideration dated
February 14, 2012 for lack of merit.
The Court further resolves to CLARIFY that the 753,848,312 SMC Series 1 preferred shares of the CIIF
companies converted from the CIIF block of SMC shares, with all the dividend earnings as well as all
increments arising from, but not limited to, the exercise of preemptive rights subject of the September 17,
2009 Resolution, shall now be the subject matter of the January 24, 2012 Decision and shall be declared
owned by the Government and be used only for the benefit of all coconut farmers and for the development
of the coconut industry.
As modified, the fallo of the January 24, 2012 Decision shall read, as follows:
WHEREFORE, the petitions in G.R. Nos. 177857-58 and 178793 are hereby DENIED. The Partial
Summary Judgment dated July 11, 2003 in Civil Case No. 0033-A as reiterated with modification in
Resolution dated June 5, 2007, as well as the Partial Summary Judgment dated May 7, 2004 in Civil Case
No. 0033-F, which was effectively amended in Resolution dated May 11, 2007, are AFFIRMED with
MODIFICATION, only with respect to those issues subject of the petitions in G.R. Nos. 177857-58 and
178193. However, the issues raised in G.R. No. 180705 in relation to Partial Summary Judgment dated July
11, 2003 and Resolution dated June 5, 2007 in Civil Case No. 0033-A, shall be decided by this Court in a
separate decision.
The Partial Summary Judgment in Civil Case No. 0033-A dated July 11, 2003, is hereby MODIFIED, and
shall read as follows:
WHEREFORE, in view of the foregoing, We rule as follows:
SUMMARY OF THE COURTS RULING.
A. Re: CLASS ACTION MOTION FOR A SEPARATE SUMMARY JUDGMENT dated April 11, 2001
filed by Defendant Maria Clara L. Lobregat, COCOFED, et al., and Ballares, et al.
The Class Action Motion for Separate Summary Judgment dated April 11, 2001 filed by defendant Maria
Clara L. Lobregat, COCOFED, et al. and Ballares, et al., is hereby DENIED for lack of merit.
B. Re: MOTION FOR PARTIAL SUMMARY JUDGMENT (RE: COCOFED, ET AL. AND BALLARES,
ET AL.) dated April 22, 2002 filed by Plaintiff.
1. a. The portion of Section 1 of P.D. No. 755, which reads:
and that the Philippine Coconut Authority is hereby authorized to distribute, for free, the shares of
stock of the bank it acquired to the coconut farmers under such rules and regulations it may
promulgate.
taken in relation to Section 2 of the same P.D., is unconstitutional: (i) for having allowed the use of
the CCSF to benefit directly private interest by the outright and unconditional grant of absolute
ownership of the FUB/UCPB shares paid for by PCA entirely with the CCSF to the undefined
"coconut farmers", which negated or circumvented the national policy or public purpose declared by
P.D. No. 755 to accelerate the growth and development of the coconut industry and achieve its
vertical integration; and (ii) for having unduly delegated legislative power to the PCA.
b. The implementing regulations issued by PCA, namely, Administrative Order No. 1, Series of 1975
and Resolution No. 074-78 are likewise invalid for their failure to see to it that the distribution of
shares serve exclusively or at least primarily or directly the aforementioned public purpose or
national policy declared by P.D. No. 755.

2. Section 2 of P.D. No. 755 which mandated that the coconut levy funds shall not be considered
special and/or fiduciary funds nor part of the general funds of the national government and similar
provisions of Sec. 5, Art. III, P.D. No. 961 and Sec. 5, Art. III, P.D. No. 1468 contravene the
provisions of the Constitution, particularly, Art. IX (D), Sec. 2; and Article VI, Sec. 29 (3).
3. Lobregat, COCOFED, et al. and Ballares, et al. have not legally and validly obtained title of
ownership over the subject UCPB shares by virtue of P.D. No. 755, the Agreement dated May 25,
1975 between the PCA and defendant Cojuangco, and PCA implementing rules, namely, Adm.
Order No. 1, s. 1975 and Resolution No. 074-78.
4. The so-called "Farmers UCPB shares" covered by 64.98% of the UCPB shares of stock, which
formed part of the 72.2% of the shares of stock of the former FUB and now of the UCPB, the entire
consideration of which was charged by PCA to the CCSF, are hereby declared conclusively owned
by, the Plaintiff Republic of the Philippines.
xxx

xxx

xxx

SO ORDERED.
The Partial Summary Judgment in Civil Case No. 0033-F dated May 7, 2004, is hereby MODIFIED, and
shall read as follows:
WHEREFORE, the MOTION FOR EXECUTION OF PARTIAL SUMMARY JUDGMENT (RE: CIIF
BLOCK OF SMC SHARES OF STOCK) dated August 8, 2005 of the plaintiff is hereby denied for lack of
merit. However, this Court orders the severance of this particular claim of Plaintiff. The Partial Summary
Judgment dated May 7, 2004 is now considered a separate final and appealable judgment with respect to the
said CIIF Block of SMC shares of stock.1wphi1
The Partial Summary Judgment rendered on May 7, 2004 is modified by deleting the last paragraph of the
dispositive portion, which will now read, as follows:
WHEREFORE, in view of the foregoing, we hold that:
The Motion for Partial Summary Judgment (Re: Defendants CIIF Companies, 14 Holding Companies and
Cocofed, et al) filed by Plaintiff is hereby GRANTED. ACCORDINGLY, THE CIIF COMPANIES,
NAMELY:
1. Southern Luzon Coconut Oil Mills (SOLCOM);
2. Cagayan de Oro Oil Co., Inc. (CAGOIL);
3. Iligan Coconut Industries, Inc. (ILICOCO);
4. San Pablo Manufacturing Corp. (SPMC);
5. Granexport Manufacturing Corp. (GRANEX); and
6. Legaspi Oil Co., Inc. (LEGOIL),
AS WELL AS THE 14 HOLDING COMPANIES, NAMELY:
1. Soriano Shares, Inc.;
2. ACS Investors, Inc.;

3. Roxas Shares, Inc.;

4. Arc Investors; Inc.;
5. Toda Holdings, Inc.;
6. AP Holdings, Inc.;
7. Fernandez Holdings, Inc.;
8. SMC Officers Corps, Inc.;
9. Te Deum Resources, Inc.;
10. Anglo Ventures, Inc.;
11. Randy Allied Ventures, Inc.;
12. Rock Steel Resources, Inc.;
13. Valhalla Properties Ltd., Inc.; and
14. First Meridian Development, Inc.
AND THE CONVERTED SMC SERIES 1 PREFERRED SHARES TOTALING 753,848,312 SHARES
SUBJECT OF THE RESOLUTION OF THE COURT DATED SEPTEMBER 17, 2009 TOGETHER
"WITH ALL DIVIDENDS DECLARED, PAID OR ISSUEDTHEREON AFTER THAT DATE, AS WELL
AS ANY INCREMENTS THERETO ARISING FROM, BUT NOT LIMITED TO, EXERCISE OF PREEMPTIVE RIGHTS ARE DECLARED OWNED BY THE GOVERNMENT TO RE USED ONLY FOH
THE BENEFIT OF ALL COCONUT FARMERS AND FOR THE DEVELOPMENT OF THE COCONUT
INDUSTRY. AND ORDERED HECONVEYED TO THE GOVERNMENT.
THE COURT AFFIRMIS THE RESOLUTIONS ISSUED BY THE SANDIGANBAYAN ON JUNE 5,
2007 IN CIVIL CASE NO. 0033-A AND ON MAY 11, 2007 IN CIVIL CASE NO. 0033-F, THAT THERE
IS NO MORE NECESSITY OF FURTHER TRIAL WITH RESPECT TO THE ISSUE OF OWNERSHIP
OF (1) THE SEQUESTERED UCPB SHARES, (2) THE CHF BLOCK OF SMC SHARES AND (3) THE
CIIF COMPANIES, AS THEY HAVE FINALLY BEEN ADJUDICATED IN THE AFOREMIENTIONED
PARTIAL SUMMARY JUDGMENTS DATED JULY 11, 2003 AND MAY 7, 2004.
SO ORDERED.
Costs against petitioners COCOFED, et al., in G.R. Nos. 177857-58 and Danilo S. Ursua in G.R. No.
178193.
No further pleadings shall be entertained. Let Entry of Judgment be made in due course.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:

ANG LADLAD VS. COMELEC

Facts:
Petitioner is a national organization which represents the lesbians, gays, bisexuals, and trans-genders. It filed
a petition for accreditation as a party-list organization to public respondent. However, due to moral grounds,
the latter denied the said petition. To buttress their denial, COMELEC cited certain biblical and quranic
passages in their decision. It also stated that since their ways are immoral and contrary to public policy, they
are considered nuissance. In fact, their acts are even punishable under the Revised Penal Code in its Article
201.
A motion for reconsideration being denied, Petitioner filed this instant Petition on Certiorari under Rule 65
of the ROC.
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.
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.
Issue:
WON Respondent violated the Non-establishment clause of the Constitution;
WON Respondent erred in denying Petitioners application on moral and legal grounds.
Held:
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, the enumeration of marginalized and underrepresented 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.
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 non-establishment clause calls for
is government neutrality in religious matters. Clearly, governmental reliance on religious justification is
inconsistent with this policy of neutrality. 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. Be it
noted that government action must have a secular purpose.
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 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. 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.

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 8point 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 disregards
decency 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 Ladlads petition 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 underrepresented 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 non-establishment 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 nonestablishment 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 nonbelievers 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.1avvphi1
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."48 Additionally, 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.1avvphi1
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.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:

ENNIS A. B. FUNA, PETITIONER, VS. THE CHAIRMAN, COA, REYNALDO A. VILLAR

G.R. No. 192791, April 24, 2012
FACTS: Funa challenges the constitutionality of the appointment of Reynaldo A. Villar as Chairman of the
COA.
Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA
Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to April 14, 2008.
Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the COA. Shortly
thereafter, on June 11, 2008, the Commission on Appointments confirmed his appointment. He was to serve
as Chairman of COA, as expressly indicated in the appointment papers, until the expiration of the original
term of his office as COA Commissioner or on February 2, 2011. Challenged in this recourse, Villar, in an
obvious bid to lend color of title to his hold on the chairmanship, insists that his appointment as COA
Chairman accorded him a fresh term of 7 years which is yet to lapse. He would argue, in fine, that his term
of office, as such chairman, is up to February 2, 2015, or 7 years reckoned from February 2, 2008 when he
was appointed to that position.
Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011 addressed to
President Benigno S. Aquino III, signified his intention to step down from office upon the appointment of
his replacement. True to his word, Villar vacated his position when President Benigno Simeon Aquino III
named Ma. Gracia Pulido-Tan (Chairman Tan) COA Chairman. This development has rendered this petition
and the main issue tendered therein moot and academic.
Although deemed moot due to the intervening appointment of Chairman Tan and the resignation of Villar,
We consider the instant case as falling within the requirements for review of a moot and academic case,
since it asserts at least four exceptions to the mootness rule discussed in David vs Macapagal Arroyo
namely:
a. There is a grave violation of the Constitution;
b. The case involves a situation of exceptional character and is of paramount public interest;
c. The constitutional issue raised requires the formulation of controlling principles to guide the bench, the
bar and the public;
d. The case is capable of repetition yet evading review.
The procedural aspect comes down to the question of whether or not the following requisites for the exercise
of judicial review of an executive act obtain in this petition, viz:
a. There must be an actual case or justiciable controversy before the court
b. The question before it must be ripe for adjudication;
c. The person challenging the act must be a proper party; and
d. The issue of constitutionality must be raised at the earliest opportunity and must be the very litis mota of
the case
ISSUES:
a. WON the petitioner has Locus Standi to bring the case to court
b. WON Villars appointment as COA Chairman, while sitting in that body and after having served for four
(4) years of his seven (7) year term as COA commissioner, is valid in light of the term limitations imposed
under, and the circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of the Constitution
HELD:
Issue of Locus Standi: This case before us is of transcendental importance, since it obviously has farreaching implications, and there is a need to promulgate rules that will guide the bench, bar, and the public
in future analogous cases. We, thus, assume a liberal stance and allow petitioner to institute the instant
petition.

In David vs Macapagal Arroyo, the Court laid out the bare minimum norm before the so-called nontraditional suitors may be extended standing to sue, thusly:
a. For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;
b. For voters, there must be a showing of obvious interest in the validity of the election law in question
c. For concerned citizens, there must be a showing that the issues raised are of transcendental importance
which must be settled early; and
d. For legislators, there must be a claim that the official action complained of infringes their prerogatives as
legislators.
On the substantive issue:
Sec. 1 (2), Art. IX(D) of the Constitution provides that:
(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, one commissioner for five years, and the other commissioner for
three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of
the term of the predecessor. In no case shall any member be appointed or designated in a temporary or acting
capacity.
Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes
reappointment of any kind within the commission, the point being that a second appointment, be it for the
same position (commissioner to another position of commissioner) or upgraded position (commissioner to
chairperson) is a prohibited reappointment and is a nullity ab initio.
The Court finds petitioners position bereft of merit. The flaw lies in regarding the word reappointment as,
in context, embracing any and all species of appointment. The rule is that if a statute or constitutional
provision is clear, plain and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation.
The first sentence is unequivocal enough. The COA Chairman shall be appointed by the President for a term
of seven years, and if he has served the full term, then he can no longer be reappointed or extended another
appointment. In the same vein, a Commissioner who was appointed for a term of seven years who likewise
served the full term is barred from being reappointed. In short, once the Chairman or Commissioner shall
have served the full term of seven years, then he can no longer be reappointed to either the position of
Chairman or Commissioner. The obvious intent of the framers is to prevent the president from dominating
the Commission by allowing him to appoint an additional or two more commissioners.
On the other hand, the provision, on its face, does not prohibit a promotional appointment from
commissioner to chairman as long as the commissioner has not served the full term of seven years, further
qualified by the third sentence of Sec. 1(2), Article IX (D) that the appointment to any vacancy shall be
only for the unexpired portion of the term of the predecessor. In addition, such promotional appointment to
the position of Chairman must conform to the rotational plan or the staggering of terms in the commission
membership such that the aggregate of the service of the Commissioner in said position and the term to
which he will be appointed to the position of Chairman must not exceed seven years so as not to disrupt the
rotational system in the commission prescribed by Sec. 1(2), Art. IX(D).
In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional
appointment from Commissioner to Chairman, provided it is made under the aforestated circumstances or
conditions.
The Court is likewise unable to sustain Villars proposition that his promotional appointment as COA
Chairman gave him a completely fresh 7- year termfrom February 2008 to February 2015given his four
(4)-year tenure as COA commissioner devalues all the past pronouncements made by this Court. While there
had been divergence of opinion as to the import of the word reappointment, there has been unanimity on

the dictum that in no case can one be a COA member, either as chairman or commissioner, or a mix of both
positions, for an aggregate term of more than 7 years. A contrary view would allow a circumvention of the
aggregate 7-year service limitation and would be constitutionally offensive as it would wreak havoc to the
spirit of the rotational system of succession.
In net effect, then President Macapagal-Arroyo could not have had, under any circumstance, validly
appointed Villar as COA Chairman, for a full 7- year appointment, as the Constitution decrees, was not
legally feasible in light of the 7-year aggregate rule. Villar had already served 4 years of his 7-year term as
COA Commissioner. A shorter term, however, to comply with said rule would also be invalid as the
corresponding appointment would effectively breach the clear purpose of the Constitution of giving to every
appointee so appointed subsequent to the first set of commissioners, a fixed term of office of 7 years. To
recapitulate, a COA commissioner like respondent Villar who serves for a period less than seven (7) years
cannot be appointed as chairman when such position became vacant as a result of the expiration of the 7year term of the predecessor (Carague). Such appointment to a full term is not valid and constitutional, as
the appointee will be allowed to serve more than seven (7) years under the constitutional ban.
To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:
1. The appointment of members of any of the three constitutional commissions, after the expiration of the
uneven terms of office of the first set of commissioners, shall always be for a fixed term of seven (7) years;
an appointment for a lesser period is void and unconstitutional. The appointing authority cannot validly
shorten the full term of seven (7) years in case of the expiration of the term as this will result in the
distortion of the rotational system prescribed by the Constitution.
2. Appointments to vacancies resulting from certain causes (death, resignation, disability or impeachment)
shall only be for the unexpired portion of the term of the predecessor, but such appointments cannot be less
than the unexpired portion as this will likewise disrupt the staggering of terms laid down under Sec. 1(2),
Art. IX(D).
3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a full term of seven
years and who served the entire period, are barred from reappointment to any position in the Commission.
Corollarily, the first appointees in the Commission under the Constitution are also covered by the
prohibition against reappointment.
4. A commissioner who resigns after serving in the Commission for less than seven years is eligible for an
appointment to the position of Chairman for the unexpired portion of the term of the departing chairman.
Such appointment is not covered by the ban on reappointment, provided that the aggregate period of the
length of service as commissioner and the unexpired period of the term of the predecessor will not exceed
seven (7) years and provided further that the vacancy in the position of Chairman resulted from death,
resignation, disability or removal by impeachment. The Court clarifies that reappointment found in Sec.
1(2), Art. IX(D) means a movement to one and the same office (Commissioner to Commissioner or
Chairman to Chairman). On the other hand, an appointment involving a movement to a different position or
office (Commissioner to Chairman) would constitute a new appointment and, hence, not, in the strict legal
sense, a reappointment barred under the Constitution.
5. Any member of the Commission cannot be appointed or designated in a temporary or acting capacity.

G.R. No. 192791

April 24, 2012

DENNIS A. B. FUNA, Petitioner,

vs.
THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A. VILLAR, Respondent.
DECISION
VELASCO, JR., J.:
In this Petition for Certiorari and Prohibition under Rule 65, Dennis A. B. Funa challenges the
constitutionality of the appointment of Reynaldo A. Villar as Chairman of the Commission on Audit and
accordingly prays that a judgment issue "declaring the unconstitutionality" of the appointment.
The facts of the case are as follows:
On February 15, 2001, President Gloria Macapagal-Arroyo (President Macapagal-Arroyo) appointed
Guillermo N. Carague (Carague) as Chairman of the Commission on Audit (COA) for a term of seven (7)
years, pursuant to the 1987 Constitution.1 Caragues term of office started on February 2, 2001 to end on
February 2, 2008.
Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed Reynaldo A. Villar (Villar) as the
third member of the COA for a term of seven (7) years starting February 2, 2004 until February 2, 2011.
Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA
Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to April 14, 2008.
Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the COA. Shortly
thereafter, on June 11, 2008, the Commission on Appointments confirmed his appointment. He was to serve
as Chairman of COA, as expressly indicated in the appointment papers, until the expiration of the original
term of his office as COA Commissioner or on February 2, 2011. Challenged in this recourse, Villar, in an
obvious bid to lend color of title to his hold on the chairmanship, insists that his appointment as COA
Chairman accorded him a fresh term of seven (7) years which is yet to lapse. He would argue, in fine, that
his term of office, as such chairman, is up to February 2, 2015, or 7 years reckoned from February 2, 2008
when he was appointed to that position.
Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed as COA Commissioner to
serve the unexpired term of Villar as Commissioner or up to February 2, 2011.
Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011 addressed to
President Benigno S. Aquino III, signified his intention to step down from office upon the appointment of
his replacement. True to his word, Villar vacated his position when President Benigno Simeon Aquino III
named Ma. Gracia Pulido-Tan (Chairman Tan) COA Chairman. This development has rendered this petition
and the main issue tendered therein moot and academic.
case is considered moot and academic when its purpose has become stale,2 or when it ceases to present a
justiciable controversy owing to the onset of supervening events,3 so that a resolution of the case or a
declaration on the issue would be of no practical value or use.4 In such instance, there is no actual substantial
relief which a petitioner would be entitled to, and which will anyway be negated by the dismissal of the
basic petition.5 As a general rule, it is not within Our charge and function to act upon and decide a moot
case. However, in David v. Macapagal-Arroyo,6 We acknowledged and accepted certain exceptions to the
issue of mootness, thus:
The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation
of the Constitution, second, the exceptional character of the situation and the paramount public interest is

involved, third, when constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public, and fourth, the case is capable of repetition yet evading review.
Although deemed moot due to the intervening appointment of Chairman Tan and the resignation of Villar,
We consider the instant case as falling within the requirements for review of a moot and academic case,
since it asserts at least four exceptions to the mootness rule discussed in David, namely: there is a grave
violation of the Constitution; the case involves a situation of exceptional character and is of paramount
public interest; the constitutional issue raised requires the formulation of controlling principles to guide the
bench, the bar and the public; and the case is capable of repetition yet evading review.7 The situation
presently obtaining is definitely of such exceptional nature as to necessarily call for the promulgation of
principles that will henceforth "guide the bench, the bar and the public" should like circumstance arise.
Confusion in similar future situations would be smoothed out if the contentious issues advanced in the
instant case are resolved straightaway and settled definitely. There are times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be addressed. To borrow from Javier v. Pacificador,8
"Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also
for the guidance of and as a restraint in the future."
Both procedural and substantive issues are raised in this proceeding. The procedural aspect comes down to
the question of whether or not the following requisites for the exercise of judicial review of an executive act
obtain in this petition, viz: (1) there must be an actual case or justiciable controversy before the court; (2) the
question before it must be ripe for adjudication; (3) the person challenging the act must be a proper party;
and (4) the issue of constitutionality must be raised at the earliest opportunity and must be the very litis mota
of the case.9
To Villar, all the requisites have not been met, it being alleged in particular that petitioner, suing as a
taxpayer and citizen, lacks the necessary standing to challenge his appointment.10 On the other hand, the
Office of the Solicitor General (OSG), while recognizing the validity of Villars appointment for the period
ending February 11, 2011, has expressed the view that petitioner should have had filed a petition for
declaratory relief or quo warranto under Rule 63 or Rule 66, respectively, of the Rules of Court instead of
certiorari under Rule 65.
Villars posture on the absence of some of the mandatory requisites for the exercise by the Court of its
power of judicial review must fail. As a general rule, a petitioner must have the necessary personality or
standing (locus standi) before a court will recognize the issues presented. In Integrated Bar of the
Philippines v. Zamora, We defined locus standi as:
x x x a personal and substantial interest in the case such that the party has sustained or will sustain a direct
injury as a result of the governmental act that is being challenged. The term "interest" means a material
interest, an interest in issue affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. The gist of the question of standing is whether a party alleges "such
personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional questions."11
To have legal standing, therefore, a suitor must show that he has sustained or will sustain a "direct injury" as
a result of a government action, or have a "material interest" in the issue affected by the challenged official
act.12 However, the Court has time and again acted liberally on the locus standi requirements and has
accorded certain individuals, not otherwise directly injured, or with material interest affected, by a
Government act, standing to sue provided a constitutional issue of critical significance is at stake.13 The rule
on locus standi is after all a mere procedural technicality in relation to which the Court, in a catena of cases
involving a subject of transcendental import, has waived, or relaxed, thus allowing non-traditional plaintiffs,
such as concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not
have been personally injured by the operation of a law or any other government act.14 In David, the Court
laid out the bare minimum norm before the so-called "non-traditional suitors" may be extended standing to
sue, thusly:

1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the election law in
question;
3.) For concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of infringes their
prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has "far-reaching implications," and
there is a need to promulgate rules that will guide the bench, bar, and the public in future analogous cases.
We, thus, assume a liberal stance and allow petitioner to institute the instant petition.
Anent the aforestated posture of the OSG, there is no serious disagreement as to the propriety of the
availment of certiorari as a medium to inquire on whether the assailed appointment of respondent Villar as
COA Chairman infringed the constitution or was infected with grave abuse of discretion. For under the
expanded concept of judicial review under the 1987 Constitution, the corrective hand of certiorari may be
invoked not only "to settle actual controversies involving rights which are legally demandable and
enforceable," but also "to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the government."15 "Grave
abuse of discretion" denotes:
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 in contemplation of law.16
We find the remedy of certiorari applicable to the instant case in view of the allegation that then President
Macapagal-Arroyo exercised her appointing power in a manner constituting grave abuse of discretion.
This brings Us to the pivotal substantive issue of whether or not Villars appointment as COA Chairman,
while sitting in that body and after having served for four (4) years of his seven (7) year term as COA
commissioner, is valid in light of the term limitations imposed under, and the circumscribing concepts
tucked in, Sec. 1 (2), Art. IX(D) of the Constitution, which reads:
(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, one commissioner for five years, and the other commissioner for
three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of
the term of the predecessor. In no case shall any member be appointed or designated in a temporary or acting
capacity. (Emphasis added.)17
And if valid, for how long can he serve?
At once clear from a perusal of the aforequoted provision are the defined restricting features in the matter of
the composition of COA and the appointment of its members (commissioners and chairman) designed to
safeguard the independence and impartiality of the commission as a body and that of its individual
members.18 These are, first, the rotational plan or the staggering term in the commission membership, such
that the appointment of commission members subsequent to the original set appointed after the effectivity of
the 1987 Constitution shall occur every two years; second, the maximum but a fixed term-limit of seven (7)
years for all commission members whose appointments came about by reason of the expiration of term save
the aforementioned first set of appointees and those made to fill up vacancies resulting from certain causes;

third, the prohibition against reappointment of commission members who served the full term of seven years
or of members first appointed under the Constitution who served their respective terms of office; fourth, the
limitation of the term of a member to the unexpired portion of the term of the predecessor; and fifth, the
proscription against temporary appointment or designation.
To elucidate on the mechanics of and the adverted limitations on the matter of COA-member appointments
with fixed but staggered terms of office, the Court lays down the following postulates deducible from
pertinent constitutional provisions, as construed by the Court:
1. The terms of office and appointments of the first set of commissioners, or the seven, five and
three-year termers referred to in Sec. 1(2), Art. IX(D) of the Constitution, had already expired.
Hence, their respective terms of office find relevancy for the most part only in understanding the
operation of the rotational plan. In Gaminde v. Commission on Audit,19 the Court described how the
smooth functioning of the rotational system contemplated in said and like provisions covering the
two other independent commissions is achieved thru the staggering of terms:
x x x [T]he terms of the first Chairmen and Commissioners of the Constitutional Commissions under
the 1987 Constitution must start on a common date [February 02, 1987, when the 1987 Constitution
was ratified] irrespective of the variations in the dates of appointments and qualifications of the
appointees in order that the expiration of the first terms of seven, five and three years should lead to
the regular recurrence of the two-year interval between the expiration of the terms.
x x x In case of a belated appointment, the interval between the start of the terms and the actual
appointment shall be counted against the appointee.20 (Italization in the original; emphasis added.)
Early on, in Republic v. Imperial,21 the Court wrote of two conditions, "both indispensable to
[the] workability" of the rotational plan. These conditions may be described as follows: (a)
that the terms of the first batch of commissioners should start on a common date; and (b) that
any vacancy due to death, resignation or disability before the expiration of the term should be
filled only for the unexpired balance of the term. Otherwise, Imperial continued, "the
regularity of the intervals between appointments would be destroyed." There appears to be
near unanimity as to the purpose/s of the rotational system, as originally conceived, i.e., to
place in the commission a new appointee at a fixed interval (every two years presently), thus
preventing a four-year administration appointing more than one permanent and regular
commissioner,22 or to borrow from Commissioner Monsod of the 1986 CONCOM, "to
prevent one person (the President of the Philippines) from dominating the commissions."23 It
has been declared too that the rotational plan ensures continuity in, and, as indicated earlier,
secure the independence of, the commissions as a body.24
2. An appointment to any vacancy in COA, which arose from an expiration of a term, after the first
chairman and commissioners appointed under the 1987 Constitution have bowed out, shall, by
express constitutional fiat, be for a term of seven (7) years, save when the appointment is to fill up a
vacancy for the corresponding unserved term of an outgoing member. In that case, the appointment
shall only be for the unexpired portion of the departing commissioners term of office. There can
only be an unexpired portion when, as a direct result of his demise, disability, resignation or
impeachment, as the case may be, a sitting member is unable to complete his term of office.25 To
repeat, should the vacancy arise out of the expiration of the term of the incumbent, then there is
technically no unexpired portion to speak of. The vacancy is for a new and complete seven-year term
and, ergo, the appointment thereto shall in all instances be for a maximum seven (7) years.
3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the "reappointment" of a member of COA
after his appointment for seven (7) years. Writing for the Court in Nacionalista Party v. De Vera,26 a
case involving the promotion of then COMELEC Commissioner De Vera to the position of
chairman, then Chief Justice Manuel Moran called attention to the fact that the prohibition against
"reappointment" comes as a continuation of the requirement that the commissionersreferring to

members of the COMELEC under the 1935 Constitutionshall hold office for a term of nine (9)
years. This sentence formulation imports, notes Chief Justice Moran, that reappointment is not an
absolute prohibition.
4. The adverted system of regular rotation or the staggering of appointments and terms in the
membership for all three constitutional commissions, namely the COA, Commission on Elections
(COMELEC) and Civil Service Commission (CSC) found in the 1987 Constitution was patterned
after the amended 1935 Constitution for the appointment of the members of COMELEC27 with this
difference: the 1935 version entailed a regular interval of vacancy every three (3) years, instead of
the present two (2) years and there was no express provision on appointment to any vacancy being
limited to the unexpired portion of the his predecessors term. The model 1935 provision reads:
Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other
members to be appointed by the President with the consent of the Commission on Appointments, who shall
hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first
appointed, one shall hold office for nine years, another for six years and the third for three years. x x x
Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes
reappointment of any kind within the commission, the point being that a second appointment, be it for the
same position (commissioner to another position of commissioner) or upgraded position (commissioner to
chairperson) is a prohibited reappointment and is a nullity ab initio. Attention is drawn in this regard to the
Courts disposition in Matibag v. Benipayo.28
Villars promotional appointment, so it is argued, is void from the start, constituting as it did a
reappointment enjoined by the Constitution, since it actually needed another appointment to a different
office and requiring another confirmation by the Commission on Appointments.
Central to the adjudication of the instant petition is the correct meaning to be given to Sec. 1(2), Article
IX(D) of the Constitution on the ban against reappointment in relation to the appointment issued to
respondent Villar to the position of COA Chairman.
Without question, the parties have presented two (2) contrasting and conflicting positions. Petitioner
contends that Villars appointment is proscribed by the constitutional ban on reappointment under the
aforecited constitutional provision. On the other hand, respondent Villar initially asserted that his
appointment as COA Chairman is valid up to February 2, 2015 pursuant to the same provision.
The Court finds petitioners position bereft of merit. The flaw lies in regarding the word "reappointment" as,
in context, embracing any and all species of appointment.
The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it must be
given its literal meaning and applied without attempted interpretation.29 This is known as the plain meaning
rule enunciated by the maxim verba legis non est recedendum, or from the words of a statute there should be
no departure.30
The primary source whence to ascertain constitutional intent or purpose is the language of the provision
itself.31 If possible, the words in the Constitution must be given their ordinary meaning, save where technical
terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure Administration illustrates the verbal legis rule
in this wise:
We look to the language of the document itself in our search for its meaning. We do not of course stop there,
but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched
express the objective sought to be attained. They are to be given their ordinary meaning except where
technical terms are employed in which case the significance thus attached to them prevails. As the
Constitution is not primarily a lawyers document, it being essential for the rule of law to obtain that it
should ever be present in the peoples consciousness, its language as much as possible should be understood

in the sense they have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers
and the people mean what they say. Thus there are cases where the need for construction is reduced to a
minimum.32 (Emphasis supplied.)
Let us dissect and examine closely the provision in question:
(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, one commissioner for five years, and the other commissioner for
three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of
the term of the predecessor. x x x (Emphasis added.)
The first sentence is unequivocal enough. The COA Chairman shall be appointed by the President for a term
of seven years, and if he has served the full term, then he can no longer be reappointed or extended another
appointment. In the same vein, a Commissioner who was appointed for a term of seven years who likewise
served the full term is barred from being reappointed. In short, once the Chairman or Commissioner shall
have served the full term of seven years, then he can no longer be reappointed to either the position of
Chairman or Commissioner. The obvious intent of the framers is to prevent the president from "dominating"
the Commission by allowing him to appoint an additional or two more commissioners.
The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional Convention barred
reappointment to be extended to commissioner-members first appointed under the 1987 Constitution to
prevent the President from controlling the commission. Thus, the first Chairman appointed under the 1987
Constitution who served the full term of seven years can no longer be extended a reappointment. Neither can
the Commissioners first appointed for the terms of five years and three years be eligible for reappointment.
This is the plain meaning attached to the second sentence of Sec. 1(2), Article IX(D).
On the other hand, the provision, on its face, does not prohibit a promotional appointment from
commissioner to chairman as long as the commissioner has not served the full term of seven years, further
qualified by the third sentence of Sec. 1(2), Article IX (D) that "the appointment to any vacancy shall be
only for the unexpired portion of the term of the predecessor." In addition, such promotional appointment to
the position of Chairman must conform to the rotational plan or the staggering of terms in the commission
membership such that the aggregate of the service of the Commissioner in said position and the term to
which he will be appointed to the position of Chairman must not exceed seven years so as not to disrupt the
rotational system in the commission prescribed by Sec. 1(2), Art. IX(D).
In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional
appointment from Commissioner to Chairman, provided it is made under the aforestated circumstances or
conditions.
It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D), as couched, allows a
promotional appointment from Commissioner to Chairman. Even if We concede the existence of an
ambiguity, the outcome will remain the same. J.M. Tuason & Co., Inc.33 teaches that in case of doubt as to
the import and react of a constitutional provision, resort should be made to extraneous aids of construction,
such as debates and proceedings of the Constitutional Convention, to shed light on and ascertain the intent of
the framers or the purpose of the provision being construed.
The understanding of the Convention as to what was meant by the terms of the constitutional provision
which was the subject of the deliberation goes a long way toward explaining the understanding of the people
when they ratified it. The Court applied this principle in Civil Liberties Union v. Executive Secretary:
A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied.

A doubtful provision will be examined in the light of the history of the times, and the condition and
circumstances under which the Constitution was framed. The object is to ascertain the reason which induced
the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished
thereby, in order to construe the whole as to make the words consonant to that reason and calculated to
effect that purpose.34 (Emphasis added.)
And again in Nitafan v. Commissioner on Internal Revenue:
x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be given
effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of
the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the
framers.35 (Emphasis added.)
Much weight and due respect must be accorded to the intent of the framers of the Constitution in interpreting
its provisions.
Far from prohibiting reappointment of any kind, including a situation where a commissioner is upgraded to
the position of chairman, the 1987 Constitution in fact unequivocally allows promotional appointment, but
subject to defined parameters. The ensuing exchanges during the deliberations of the 1986 Constitutional
Commission (CONCOM) on a draft proposal of what would eventually be Sec. 1(2), Art. IX(D) of the
present Constitution amply support the thesis that a promotional appointment is allowed provided no one
may be in the COA for an aggregate threshold period of 7 years:
MS. AQUINO: In the same paragraph, I would propose an amendment x x x. Between x x x the sentence
which begins with "In no case," insert THE APPOINTEE SHALL IN NO CASE SERVE AN
AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was thinking that this may approximate the
situation wherein a commissioner is first appointed as chairman. I am willing to withdraw that amendment if
there is a representation on the part of the Committee that there is an implicit intention to prohibit a term that
in the aggregate will exceed more than seven years. If that is the intention, I am willing to withdraw my
amendment.
MR. MONSOD: If the [Gentlewoman] will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore, as a whole there is no way somebody can serve for more than
seven years. The purpose of the last sentence is to make sure that this does not happen by including in the
appointment both temporary and acting capacities.
MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I was thinking of a situation wherein a
commissioner is upgraded to a position of chairman. But if this provision is intended to cover that kind of
situation, then I am willing to withdraw my amendment.
MR. MONSOD. It is covered.
MR. FOZ. There is a provision on line 29 precisely to cover that situation. It states: "Appointment to any
vacancy shall be only for the unexpired portion of the predecessor." In other words, if there is upgrading of
position from commissioner to chairman, the appointee can serve only the unexpired portion of the term of
the predecessor.
MS. AQUINO: But we have to be very specific x x x because it might shorten the term because he serves
only the unexpired portion of the term of the predecessor.
MR. FOZ: He takes it at his own risk. He knows that he will only have to serve the unexpired portion of the
term of the predecessor. (Emphasis added.)36

The phrase "upgrading of position" found in the underscored portion unmistakably shows that Sec. 1(2), Art.
IX(D) of the 1987 Constitution, for all its caveat against reappointment, does not per se preclude, in any and
all cases, the promotional appointment or upgrade of a commissioner to chairman, subject to this proviso:
the appointees tenure in office does not exceed 7 years in all. Indeed, such appointment does not
contextually come within the restricting phrase "without reappointment" twice written in that section.
Delegate Foz even cautioned, as a matter of fact, that a sitting commissioner accepting a promotional
appointment to fill up an unexpired portion pertaining to the higher office does so at the risk of shortening
his original term. To illustrate the Fozs concern: assume that Carague left COA for reasons other than the
expiration of his threshold 7-year term and Villar accepted an appointment to fill up the vacancy. In this
situation, the latter can only stay at the COA and served the unexpired portion of Caragues unexpired term
as departing COA Chairman, even if, in the process, his (Villars) own 7-year term as COA commissioner
has not yet come to an end. In this illustration, the inviolable regularity of the intervals between
appointments in the COA is preserved.
Moreover, jurisprudence tells us that the word "reappointment" means a second appointment to one and the
same office.37 As Justice Arsenio Dizon (Justice Dizon) aptly observed in his dissent in Visarra v.
Miraflor,38 the constitutional prohibition against the reappointment of a commissioner refers to his second
appointment to the same office after holding it for nine years.39 As Justice Dizon observed, "[T]he occupant
of an office obviously needs no such second appointment unless, for some valid cause, such as the
expiration of his term or resignation, he had ceased to be the legal occupant thereof." 40 The inevitable
implication of Justice Dizons cogent observation is that a promotion from commissioner to chairman, albeit
entailing a second appointment, involves a different office and, hence, not, in the strict legal viewpoint, a
reappointment. Stated a bit differently, "reappointment" refers to a movement to one and the same office.
Necessarily, a movement to a different position within the commission (from Commissioner to Chairman)
would constitute an appointment, or a second appointment, to be precise, but not reappointment.
A similar opinion was expressed in the same Visarra case by the concurring Justice Angelo Bautista,
although he expressly alluded to a promotional appointment as not being a prohibited appointment under
Art. X of the 1935 Constitution.
Petitioners invocation of Matibag as additional argument to contest the constitutionality of Villars
elevation to the COA chairmanship is inapposite. In Matibag, then President Macapagal-Arroyo appointed,
ad interim, Alfredo Benipayo as COMELEC Chairman and Resurreccion Borra and Florentino Tuason as
Commissioners, each for a term of office of seven (7) years. All three immediately took their oath of, and
assumed, office. These appointments were twice renewed because the Commission on Appointments failed
to act on the first two ad interim appointments. Via a petition for prohibition, some disgruntled COMELEC
officials assail as infirm the appointments of Benipayo, et al.
Matibag lists (4) four situations where the prohibition on reappointment would arise, or to be specific, where
the proviso "[t]he Chairman and the Commissioners shall be appointed x x x for a term of seven years
without reappointment" shall apply. Justice Antonio T. Carpio declares in his dissent that Villars
appointment falls under a combination of two of the four situations.
Conceding for the nonce the correctness of the premises depicted in the situations referred to in Matibag,
that case is of doubtful applicability to the instant petition. Not only is it cast against a different milieu, but
the lis mota of the case, as expressly declared in the main opinion, "is the very constitutional issue raised by
petitioner."41 And what is/are this/these issue/s? Only two defined issues in Matibag are relevant, viz: (1) the
nature of an ad interim appointment and subsumed thereto the effect of a by-passed ad interim appointment;
and (2) the constitutionality of renewals of ad interim appointments. The opinion defined these issues in the
following wise: "Petitioner [Matibag] filed the instant petition questioning the appointment and the right to
remain in office of Benipayo, Borra and Tuason as Chairman and Commissioners of the COMELEC,
respectively. Petitioner claims that the ad interim appointments of Benipayo, et al. violate the constitutional
provisions on the independence of COMELEC, as well as on the prohibitions on temporary appointments
and reappointments of its Chairman and members." As may distinctly be noted, an upgrade or promotion
was not in issue in Matibag.

We shall briefly address the four adverted situations outlined in Matibag, in which, as there urged, the
uniform proviso on no reappointmentafter a member of any of the three constitutional commissions is
appointed for a term of seven (7) yearsshall apply. Matibag made the following formulation:
The first situation is where an ad interim appointee after confirmation by the Commission on Appointments
serves his full 7-year term. Such person cannot be reappointed whether as a member or as chairman because
he will then be actually serving more than seven (7) years.
The second situation is where the appointee, after confirmation, serves part of his term and then resigns
before his seven-year term of office ends. Such person cannot be reappointed whether as a member or as
chair to a vacancy arising from retirement because a reappointment will result in the appointee serving more
than seven years.
The third situation is where the appointee is confirmed to serve the unexpired portion of someone who died
or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed whether as
a member or as chair to a vacancy arising from retirement because a reappointment will result in the
appointee also serving more than seven (7) years.
The fourth situation is where the appointee has previously served a term of less than seven (7) years, and a
vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a
reappointment of such person to serve an unexpired term is also prohibited because his situation will be
similar to those appointed under the second sentence of Sec. 1(20), Art. IX-C of the Constitution [referring
to the first set of appointees (the 5 and 3 year termers) whose term of office are less than 7 years but are
barred from being reappointed under any situation]."42 (Words in brackets and emphasis supplied.)
The situations just described constitute an obiter dictum, hence without the force of adjudication, for the
corresponding formulation of the four situations was not in any way necessary to resolve any of the
determinative issues specifically defined in Matibag. An opinion entirely unnecessary for the decision of the
case or one expressed upon a point not necessarily involved in the determination of the case is an obiter.43
There can be no serious objection to the scenarios depicted in the first, second and third situations, both
hewing with the proposition that no one can stay in any of the three independent commissions for an
aggregate period of more than seven (7) years. The fourth situation, however, does not commend itself for
concurrence inasmuch as it is basically predicated on the postulate that reappointment, as earlier herein
defined, of any kind is prohibited under any and all circumstances. To reiterate, the word "reappointment"
means a second appointment to one and the same office; and Sec. 1(2), Art. IX(D) of the 1987 Constitution
and similar provisions do not peremptorily prohibit the promotional appointment of a commissioner to
chairman, provided the new appointees tenure in both capacities does not exceed seven (7) years in all. The
statements in Matibag enunciating the ban on reappointment in the aforecited fourth situation, perforce, must
be abandoned, for, indeed, a promotional appointment from the position of Commissioner to that of
Chairman is constitutionally permissible and not barred by Sec. 1(2), Art. IX (D) of the Constitution.
One of the aims behind the prohibition on reappointment, petitioner urges, is to ensure and preserve the
independence of COA and its members,44 citing what the dissenting Justice J.B.L Reyes wrote in Visarra,
that once appointed and confirmed, the commissioners should be free to act as their conscience demands,
without fear of retaliation or hope or reward. Pursued to its logical conclusion, petitioners thesis is that a
COA member may no longer act with independence if he or she can be rewarded with a promotion or
appointment, for then he or she will do the bidding of the appointing authority in the hope of being promoted
or reappointed.
The unstated reason behind Justice J.B.L. Reyes counsel is that independence is really a matter of choice.
Without taking anything away from the gem imparted by the eminent jurist, what Chief Justice Moran said
on the subject of independence is just as logically sound and perhaps even more compelling, as follows:

A Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or other hope
of material reward, his enthusiasm may decline as the end of his term approaches and he may even lean to
abuses if there is no higher restrain in his moral character. Moral character is no doubt the most effective
safeguard of independence. With moral integrity, a commissioner will be independent with or without the
possibility of reappointment.45
The Court is likewise unable to sustain Villars proposition that his promotional appointment as COA
Chairman gave him a completely fresh 7-year termfrom February 2008 to February 2015given his four
(4)-year tenure as COA commissioner devalues all the past pronouncements made by this Court, starting in
De Vera, then Imperial, Visarra, and finally Matibag. While there had been divergence of opinion as to the
import of the word "reappointment," there has been unanimity on the dictum that in no case can one be a
COA member, either as chairman or commissioner, or a mix of both positions, for an aggregate term of
more than 7 years. A contrary view would allow a circumvention of the aggregate 7-year service limitation
and would be constitutionally offensive as it would wreak havoc to the spirit of the rotational system of
succession. Imperial, passing upon the rotational system as it applied to the then organizational set-up of the
COMELEC, stated:
The provision that of the first three commissioners appointed "one shall hold office for 9 years, another for 6
years and the third for 3 years," when taken together with the prescribed term of office for 9 years without
reappointment, evinces a deliberate plan to have a regular rotation or cycle in the membership of the
commission, by having subsequent members appointable only once every three years.46
To be sure, Villars appointment as COA Chairman partakes of a promotional appointment which, under
appropriate setting, would be outside the purview of the constitutional reappointment ban in Sec 1(2), Art.
IX(D) of the Constitution. Nonetheless, such appointment, even for the term appearing in the underlying
appointment paper, ought still to be struck down as unconstitutional for the reason as shall be explained.
Consider:
In a mandatory tone, the aforecited constitutional provision decrees that the appointment of a COA member
shall be for a fixed 7-year term if the vacancy results from the expiration of the term of the predecessor. We
reproduce in its pertinent part the provision referred to:
(2) The Chairman and Commissioners [on Audit] shall be appointed x x x for a term of seven years without
reappointment. x x x Appointment to any vacancy shall be only for the unexpired portion of the term of the
predecessor. x x x
Accordingly, the promotional appointment as COA Chairman of Villar for a stated fixed term of less than
seven (7) years is void for violating a clear, but mandatory constitutional prescription. There can be no
denying that the vacancy in the position of COA chairman when Carague stepped down in February 2, 2008
resulted from the expiration of his 7-year term. Hence, the appointment to the vacancy thus created ought to
have been one for seven (7) years in line with the verbal legis approach47 of interpreting the Constitution. It
is to be understood, however, following Gaminde, that in case of a belated appointment, the interval between
the start of the term and the actual appointment shall be counted against the 7-year term of the appointee.
Posing, however, as an insurmountable barrier to a full 7-year appointment for Villar is the rule against one
serving the commission for an aggregate term of more than seven (7) years.
Where the Constitution or, for that matter, a statute, has fixed the term of office of a public official, the
appointing authority is without authority to specify in the appointment a term shorter or longer than what the
law provides. If the vacancy calls for a full seven-year appointment, the President is without discretion to
extend a promotional appointment for more or for less than seven (7) years. There is no in between. He or
she cannot split terms. It is not within the power of the appointing authority to override the positive
provision of the Constitution which dictates that the term of office of members of constitutional bodies shall
be seven (7) years.48 A contrary reasoning "would make the term of office to depend upon the pleasure or

caprice of the [appointing authority] and not upon the will [of the framers of the Constitution] of the
legislature as expressed in plain and undoubted language in the law."49
In net effect, then President Macapagal-Arroyo could not have had, under any circumstance, validly
appointed Villar as COA Chairman, for a full 7-year appointment, as the Constitution decrees, was not
legally feasible in light of the 7-year aggregate rule. Villar had already served 4 years of his 7-year term as
COA Commissioner. A shorter term, however, to comply with said rule would also be invalid as the
corresponding appointment would effectively breach the clear purpose of the Constitution of giving to every
appointee so appointed subsequent to the first set of commissioners, a fixed term of office of 7 years. To
recapitulate, a COA commissioner like respondent Villar who serves for a period less than seven (7) years
cannot be appointed as chairman when such position became vacant as a result of the expiration of the 7year term of the predecessor (Carague). Such appointment to a full term is not valid and constitutional, as
the appointee will be allowed to serve more than seven (7) years under the constitutional ban.
On the other hand, a commissioner who resigned before serving his 7- year term can be extended an
appointment to the position of chairman for the unexpired period of the term of the latter, provided the
aggregate of the period he served as commissioner and the period he will serve as chairman will not exceed
seven (7) years. This situation will only obtain when the chairman leaves the office by reason of death,
disability, resignation or impeachment. Let us consider, in the concrete, the situation of then Chairman
Carague and his successor, Villar. Carague was appointed COA Chairman effective February 2, 2001 for a
term of seven (7) years, or up to February 2, 2008. Villar was appointed as Commissioner on February 2,
2004 with a 7-year term to end on February 2, 2011. If Carague for some reason vacated the chairmanship in
2007, then Villar can resign as commissioner in the same year and later be appointed as chairman to serve
only up to February 2, 2008, the end of the unexpired portion of Caragues term. In this hypothetical
scenario, Villars appointment to the position of chairman is valid and constitutional as the aggregate periods
of his two (2) appointments will only be five (5) years which neither distorts the rotational scheme nor
violates the rule that the sum total of said appointments shall not exceed seven (7) years. Villar would,
however, forfeit two (2) years of his original seven (7)-year term as Commissioner, since, by accepting an
upgraded appointment to Caragues position, he agreed to serve the unexpired portion of the term of the
predecessor. As illustrated earlier, following Mr. Fozs line, if there is an upgrading of position from
commissioner to chairman, the appointee takes the risk of cutting short his original term, knowing pretty
well before hand that he will serve only the unexpired portion of the term of his predecessor, the outgoing
COA chairman.
In the extreme hypothetical situation that Villar vacates the position of chairman for causes other than the
expiration of the original term of Carague, the President can only appoint the successor of Villar for the
unexpired portion of the Carague term in line with Sec. 1(2), Art. IX(D) of the Constitution. Upon the
expiration of the original 7-year term of Carague, the President can appoint a new chairman for a term of
seven (7) full years.
In his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes strong exception to the view that
the promotional appointment of a sitting commissioner is plausible only when he is appointed to the position
of chairman for the unexpired portion of the term of said official who leaves the office by reason of any the
following reasons: death, disability, resignation or impeachment, not when the vacancy arises out as a result
of the expiration of the 7-year term of the past chairman. There is nothing in the Constitution, so Justice
Mendoza counters, that restricts the promotion of an incumbent commissioner to the chairmanship only in
instances where the tenure of his predecessor was cut short by any of the four events referred to. As earlier
explained, the majority view springs from the interplay of the following premises: The explicit command of
the Constitution is that the "Chairman and the Commissioners shall be appointed by the President x x x for a
term of seven years [and] appointment to any vacancy shall be only for the unexpired portion of the term of
the predecessor." To repeat, the President has two and only two options on term appointments. Either he
extends an appointment for a full 7-year term when the vacancy results from the expiration of term, or for a
shorter period corresponding to the unexpired term of the predecessor when the vacancy occurs by reason of
death, physical disability, resignation or impeachment. If the vacancy calls for a full seven-year

appointment, the Chief Executive is barred from extending a promotional appointment for less than seven
years. Else, the President can trifle with terms of office fixed by the Constitution.
Justice Mendoza likewise invites attention to an instance in history when a commissioner had been
promoted chairman after the expiration of the term of his predecessor, referring specifically to the
appointment of then COMELEC Commissioner Gaudencio Garcia to succeed Jose P. Carag after the
expiration of the latters term in 1959 as COMELEC chairman. Such appointment to the position of
chairman is not constitutionally permissible under the 1987 Constitution because of the policy and intent of
its framers that a COA member who has served his full term of seven (7) years or even for a shorter period
can no longer be extended another appointment to the position of chairman for a full term of seven (7) years.
As revealed in the deliberations of the Constitutional Commission that crafted the 1987 Constitution, a
member of COA who also served as a commissioner for less than seven (7) years in said position cannot be
appointed to the position of chairman for a full term of seven (7) years since the aggregate will exceed seven
(7) years. Thus, the adverted Garcia appointment in 1959 made under the 1935 Constitution cannot be used
as a precedent to an appointment of such nature under the 1987 Constitution. The dissent further notes that
the upgrading remained uncontested. In this regard, suffice it to state that the promotion in question was
either legal or it was not. If it were not, no amount of repetitive practices would clear it of invalidating taint.
Lastly, Villars appointment as chairman ending February 2, 2011 which Justice Mendoza considers as valid
is likewise unconstitutional, as it will destroy the rationale and policy behind the rotational system or the
staggering of appointments and terms in COA as prescribed in the Constitution. It disturbs in a way the
staggered rotational system of appointment under Sec. 1(2), Art. IX(D) of the 1987 Constitution. Consider:
If Villars term as COA chairman up to February 2, 2011 is viewed as valid and constitutional as espoused
by my esteemed colleague, then two vacancies have simultaneously occurred and two (2) COA members
going out of office at once, opening positions for two (2) appointables on that date as Commissioner San
Buenaventuras term also expired on that day. This is precisely one of the mischiefs the staggering of terms
and the regular intervals appointments seek to address. Note that San Buenaventura was specifically
appointed to succeed Villar as commissioner, meaning she merely occupied the position vacated by her
predecessor whose term as such commissioner expired on February 2, 2011. The result is what the framers
of the Constitution doubtless sought to avoid, a sitting President with a 6-year term of office, like President
Benigno C. Aquino III, appointing all or at least two (2) members of the three-man Commission during his
term. He appointed Ma. Gracia Pulido-Tan as Chairman for the term ending February 2, 2015 upon the
relinquishment of the post by respondent Villar, and Heidi Mendoza was appointed Commissioner for a 7year term ending February 2, 2018 to replace San Buenaventura. If Justice Mendozas version is adopted,
then situations like the one which obtains in the Commission will definitely be replicated in gross breach of
the Constitution and in clear contravention of the intent of its framers. Presidents in the future can easily
control the Commission depriving it of its independence and impartiality.
To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:
1. The appointment of members of any of the three constitutional commissions, after the expiration
of the uneven terms of office of the first set of commissioners, shall always be for a fixed term of
seven (7) years; an appointment for a lesser period is void and unconstitutional.
The appointing authority cannot validly shorten the full term of seven (7) years in case of the
expiration of the term as this will result in the distortion of the rotational system prescribed by the
Constitution.
2. Appointments to vacancies resulting from certain causes (death, resignation, disability or
impeachment) shall only be for the unexpired portion of the term of the predecessor, but such
appointments cannot be less than the unexpired portion as this will likewise disrupt the staggering of
terms laid down under Sec. 1(2), Art. IX(D).
3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a full term
of seven years and who served the entire period, are barred from reappointment to any position in the

Commission. Corollarily, the first appointees in the Commission under the Constitution are also
covered by the prohibition against reappointment.
4. A commissioner who resigns after serving in the Commission for less than seven years is eligible
for an appointment to the position of Chairman for the unexpired portion of the term of the departing
chairman. Such appointment is not covered by the ban on reappointment, provided that the aggregate
period of the length of service as commissioner and the unexpired period of the term of the
predecessor will not exceed seven (7) years and provided further that the vacancy in the position of
Chairman resulted from death, resignation, disability or removal by impeachment. The Court
clarifies that "reappointment" found in Sec. 1(2), Art. IX(D) means a movement to one and the same
office (Commissioner to Commissioner or Chairman to Chairman). On the other hand, an
appointment involving a movement to a different position or office (Commissioner to Chairman)
would constitute a new appointment and, hence, not, in the strict legal sense, a reappointment barred
under the Constitution.
5. Any member of the Commission cannot be appointed or designated in a temporary or acting
capacity.
WHEREFORE the petition is PARTLY GRANTED. The appointment of then Commissioner Reynaldo A.
Villar to the position of Chairman of the Commission on Audit to replace Guillermo N. Carague, whose
term of office as such chairman has expired, is hereby declared UNCONSTITUTIONAL for violation of
Sec. 1(2), Art. IX(D) of the Constitution.
SO ORDERED.