EN BANC

[P.E.T. Case No. 001. February 13, 1996]

MIRIAM DEFENSOR-SANTIAGO, protestant,

RAMOS, protestee.

vs. FIDEL

VALDEZ

SYLLABUS
1. POLITICAL LAW; PRESIDENTIAL ELECTORAL TRIBUNAL; ELECTION
PROTEST; IN ASSUMING THE OFFICE OF SENATOR, THE PROTESTANT HAS
EFFECTIVELY ABAN-DONED OR WITHDRAWN HER ELECTION PROTEST,
THEREBY MAKING IT MOOT. - The term of office of the Senators elected in the 8
May 1995 election is six years, the first three of which coincides with the last three
years of the term of the President elected in the 11 May 1992 synchronized
elections. The latter would be Protestant Santiagos term if she would succeed in
proving in the instant protest that she was the true winer in the 1992 elections. In
assuming the office of Senator then, the Protestant has effectively abandoned or
withdrawn this protest, or at the very least, in the language of Moraleja, abandoned
her determination to protect and pursue the public interest involved in the matter of
who is the real choice of the electorate. Such abandonment or withdrawal operates
to render moot the instant protest. Moreover, the dismissal of this protest would
serve public interest as it would dissipate the aura of uncertainty as to the results of
the 1992 presidential election, thereby enhancing the all-to crucial political stability
of the nation during this period of national recovery. It must also be stressed that
under the Rules of the Presidential Electoral Tribunal, an election protest may be
summarily dismissed, regardless of the public policy and public interest implications
thereof, on the following grounds: (1) The petition is insufficient in form and
substance; (2) The petition is filed beyond the periods provided in Rules 14 and 15
hereof; (3) The filing fee is not paid within the periods provided for in these Rules;
(4) The cash deposit, or the first P 100,000.00 thereof, is not paid within 10 days
after the filing of the protest; and (5) The petition or copies thereof and the annexes
thereto filed with the Tribunal are not clearly legible. Other grounds for a motion to
dismiss, e.g., those provided in the Rules of Court which apply in a suppletory
character, may likewise be pleaded as affirmative defenses in the answer. After
which, the Tribunal may, in its discretion, hold a preliminary hearing on such
grounds. In sum, if an election be dismissed on technical grounds, then it must be,
for a decidedly stronger reason, if it has become moot due to its abandonment by
the Protestant.
2. ID.; ID.; ID.; THE PROTESTANT ABANDONED HER ELECTION PROTEST WHEN
SHE WAIVED THE REVISION OF THE REMAINING BALLOTS AND FAILED TO
INFORM THE TRIBUNAL WHETHER SHE STILL INTENDS TO PRESENT
ADDITIONAL EVIDENCE AFTER THE COMPLETION OF THE REVISION OF

THE BALLOTS FROM THE PILOT AREAS. - This Tribunal cannot close its eyes to
the fact that the Protestant has decided to waive the revision of the remaining
unrevised ballots from 4,017 precincts out of the 17,527 precincts of the designated
three pilot areas. This is an unabashed reversal from her original stand in her
Motion and Manifestation dated 18 October 1993. Taking this into account, this
Tribunal declared in its resolution of 21 October 1993: After deliberating on the
foregoing pleadings and the arguments of the parties, the Tribunal rules for the
Protestant insofar as the revision of the remaining ballot boxes from her pilot areas
are concerned, and against the immediate application of Rule 61 of the Rules of the
Tribunal to the Protestee in respect of the Counter-Protest. At this stage of the
proceedings in this case it cannot be reasonably determined whether the revised
ballots are considerable enough to establish a trend either in favor of or against the
Protestant as would justify an appropriate action contemplated in Rule 61 of the
Rules of the Tribunal, or whether the unrevised ballots from said areas would not, in
the language of the Protestant, materially affect the result of the representative
sample of the ballot boxes so far revised. As to the 1,300 ballot boxes from Makati,
the proper time to raise the objections to the ballot boxes and its contents would be
during the revision stage. Consequently, we resolved therein to: A. ORDER the
revision of the remaining unrevised ballot boxes enumerated in the aforequoted
paragraph A to the 5 October 1995 Resolution and for the purpose to DiRECT the
Acting Clerk of Court of the Tribunal to collect said ballot boxes and other election
documents and paraphernalia from their respective custodians in the event that
their revisions in connection with other election protests in which they are involved
have been terminated, and if such revisions are not yet completed, to coordinate
with the appropriate tribunal or court in which such other election protests are
pending and which have already obtained custody of the ballot boxes and started
revision with the end in view of either seeking expeditious revisions in such other
election protests or obtaining the custody of the ballot boxes and related election
documents and paraphernalia for their immediate delivery to the Tribunal; and B.
REQUIRE the Protestant to inform the Tribunal, within ten (10) days from receipt
hereof, if after the completion of the revision of the ballots from her pilot areas she
would present evidence in connection therewith. Until the present,however, the
Protestant has not informed the Tribunal whether after the completion of the revision
of the ballots from her pilot areas, she still intends to present evidence in connection
therewith. This failure then, is nothing short of a manifest indication that she no
longer intends to do so.
3. ID.; ID.; ID.; IT IS IRRELEVANT AT THIS STAGE OF THE PROCEEDINGS THAT
THE PROTESTANTS REVISORS DISCOVERED ALLEGED IRREGULARITIES IN
13,510 OUT OF THE 17,525 CONSTESTED PRECINCTS IN THE PILOT AREAS.
- It is entirely irrelevant at this stage of the proceedings that the Protestants revisors
discovered in the course of the revisions alleged irregularities in 13,510 out of the
17,525 contested precincts in the pilot areas and have objected to thousands of
ballots cast in favor of the Protestee. Revision is merely the first stage, and not the
alpha and omega, of an election contest. In no uncertain terms then, this Tribunal
declared in its resolution of 18 March 1993 that: Protestant knows only too well,
being a lawyer and a former judge herself, that the revision phase of her protest is

but the first stage in the resolution of her electoral protest and that the function of
the revisors is very limited. In her 12 February 1993 Comment on Protestees 5
February 1993 Urgent Motion for the issuance of a resolution which, inter
alia, would clarify that revisors may observe the objections and/or claims made by
the revisors of the other party as well as the ballots subject thereof, and record such
observations in a form to be provided for that purpose. Protestant unequivocally
stated: 8. Further, the principle and plan of the RPET [Rules of the Presidential
Electoral Tribulal is to subdivide the entire election contests into various
stages. Thus, the first stage is the Revision Proper. Second is the technical
examination if so desired by either party. Third, is the reception of evidence. And
fourth, is the filing of parties memoranda. and described the function of the revisors
as solely to examine and segregate the ballots according to which ballots they
would like to contest or object (contested ballots) and those which they admit or
have no objections (uncontested ballots). Indeed, revisors do not have any judicial
discretion; their duties are merely clerical in nature ( Hontiveros vs. Altavas, 24 Phil.
632 [1913]). In fact, their opinion or decision on the more crucial or critical matter of
what ballots are to be contested or not does not even bind the Tribunal
(Yalung vs. Atienza, 52 Phil. 781 [1929]; Olano vs. Tibayan, 53 Phil. 168
[1929]). Thus, no undue importance may be given to the revision phase of an
election contest. It can never serve as a logical or an acceptable basis for the
conclusion that massive fraud or irregularities were committed during an election or
that a Protestatnt had won in said election. If that were so, a Protestant may contest
all ballot boxes and, in the course of the revision thereof, object - for any imagined
ground whatsoever, even if the same be totally unfounded and ridiculous - to all
ballots credited to the Protestee; and then, at the end of the day, said Protestant
may even announce to the whole world that contrary to what is reflected in the
election returns, Protestee had actually lost the elections.
4. ID.; ONLY ONE REASON WHY THE PROTEST HAD BEEN RENDERED MOOT
AND ACADEMIC - IT HAS BEEN ABANDONED OR WITHDRAWN. - Mr. Justice
Punos perception that the majority would dismiss this election protest as moot and
academic on two (2) grounds: first, that the findings of irregularities made by the
revisors of the protestant in the course of the revision of ballots in 13,510 contested
precincts are entirely irrelevant; and second, she abandoned her protests when she
filed her certificate of candidacy in the 8 May 1995 senatorial elections, is
inaccurate. The dispositive portion of this resolution leaves no room for any doubt or
miscomprehension that the dismissal is based on the ground that the protesthas
been rendered moot and academic by its abandonement or withdrawal by the
Protestant as a consequence of her election and assumption of office as Senator
and her discharge of the duties and functions thereof There is, therefore, ONLY
ONE reason or ground why the protest has been rendered moot and academic, i.e.,
it has been abandoned or withdrawn.This was the very issue upon which the parties
were required, in the resolution of 26 September 1994, to submit their respective
memoranda.
5. ID.; ID.; ID.; IT WAS NEVER THE VIEW OF THE MAJORITY THAT THE
PROTESTANTS FILING OF THE CERTIFICATE OF CANDIDACY FOR A SEAT IN

THE SENATE IN THE 8 MAY 1995 ELECTION WAS THE SOLE OPERATIVE ACT
WHY THE PRESENT PROTEST HAS BECOME MOOT AND ACADEMIC. - Then
too, it was never the view of the majority that the Protestants filing of the certificate
of candidacy for a seat in the Senate in the 8 May 1995 election was the sole and
exclusive operative act for what Mr. Justice Puno perceives to be the majoritys
second ground why this protest has become moot and academic. To the majority,
such filing was only the initial step in a series of acts performed by the Protestant to
convincingly evince her abandonment of this protest, viz., campaigning for the office
of Senator, assumption of such office after her election, and her discharge of the
duties and functons of the said office. Precisely, in the resolution of 26 September
1995, this Court directed the Protestant and the Protestee to submit their respective
memoranda on the issue [of] whether or not the protest has not been rendered
moot and academic by the election of the Protestant as Senator and her
subsequent assumption of office as such on 30 June 1995.As to the concept of
abandonment, Mr. Justice Puno and Mr. Justice Kapunan cite Blacks Law
Dictionary and the cases of Roebuck vs. Mecosta County Road Commission,
Dober vs.Ukase Inv. Co., and McCall vs. Cull, cited therein. We have turned to the
primary sources of these cases, meticulously perused them, and found none
materially significant to this protest.
6. ID.; ID.; ID.; IN SUM, WHAT APPEARS TO BE THE CORRECT VIEW IN THE
DISSENT IS, IN THE FINAL, ANALYSIS, MISPLACED; REASON. - What initially
appears to be the correct view in the dissent is, in the final analysis, misplaced. This
must also be the verdict upon the following pronouncements of Mr. Justice Puno: A
more fundamental reasonprevents me from joining the majority. With due respect, I
submit that the majority ruling on abandonment is inconsistent with the doctrine
that an election contest is concerned less with the private interest of the candidates
but more with public interest. Under a republican regime of government, the
overarching object of an election contest is to seek and enforce the judgment of the
people on who should govern them. It is not a happenstance that the first
declaration of policy of our Constitution underlines in bright that sovereignty resides
in the people and all government authority emanates from them. The first duty of a
citizen as a particle of sovereignty just as the first duty of any reigning government
is to uphold the sovereignity of the people at all cost. Thus, in Moraleja vs. Relova,
we emphatically held that x x x once the court has acquired jurisdiction over an
election contests, the public interest involved demands that the true winner be
known without regard to the wishes or acts of the parties so much so that there can
be no default, compromise nor stipulation of facts in this kind of cases. Wisely, this
Tribunal has consistently demurred from dismissing election contests even on the
ground of death of the protestee or the protestant. The majority appears to stray
away from this lodestar of our Constitution. It will dismiss the case at bar even while
the protestee and the protestant are yet alive, even while the term of the 1992
president-elect has yet to expire, and even while the protestee and the protestant
together plead that the Tribunal should determine the true will of the people by
deciding their dispute on the merits] and not on technicalities that trifle with the
truth. I submit that it is the better stance for the Tribunal to decide this election
contest on the merits] and vindicate the political judgment of the people which far

surpasses in significance all other considerations. Our duty to tell the people who
have the right to govern them cannot depend on the uncertain oscillations of politics
of the litigants as often times they are directed by the wind of convenience, and not
by the weal of the public. For one, the minority has, in no uncertain terms,
demonstrated the dissimilarities in the factual settings of the instant protest vis-a-vis
the earlier cases that enunciated the doctrine relied on by Mr. Justice Puno. Then,
too, it must be reitereated, to avoid further miscomprehension, that the Moraleja
ruling even conceded that the matter of abandonment could be different if the
petitioner therein had accepted a permanent appointment to a regular office during
the pendency of his protest. In short Moraleja in fact intimates abandonment of an
election protest if, in the meantime, the Protestant accepts a permanent
appointment to a regular office. If that can be so, then would it be, and for weightier
reasons, against a protestant who voluntarily sought election to an office whose
term of the contested office, and after winning the said election, took her oath and
assumed office and thereafter continuously serves it. In Moraleja, the Supreme
Court was meticulous in excludingabandonment from the enumeration of specific
acts or wishes of the parties which must be disregarded because of the public
interest component of an election protest. As reflected in the above quotation from
Mr. Justice Punos dissent, only default, compromise, or stipulation of facts are
included.
7. ID.; ID.; ID.; THE DISSENT FORGETS THAT THE RULES OF THE TRIBUNAL
ALLOW SUMMARY DISMISSAL OF ELECTION PROTEST EVEN FOR LESS
IMPORTANT GROUNDS. - With all due respect, the above pronouncement of Mr.
Justice Puno forgets that. as distinctly pointed out in the early part of this
Resolution, the Rules of the Tribunal allow summary dismissal of election protests
even for less important grounds, to repeat, such as the petition filed with the
Tribunal or the annexes attached thereto are not clearly legible, or the filing fees
and cash deposits were not filed within the periods fixed in the Rules, and the
additional provision for dismissal under Rule 61. All these provisions of the Rules
would then be put to naught or, at the very least, modified or amended in a way not
authorized by the Rules, if the theory of Mr. Justice Puno be accepted. Such theory
would unreasonably bind the Tribunal to the technical minutiae of trial on the merits
to bring to their ultimate end all protests or contests filed before it - including those
filed by candidates who even forgot to vote for themselves and obtained no votes in
the final count, but, unable to accept defeat, filed a protest claiming massive fraud
and irregularities, vote-buying, and terrorism. Consequently, all the time and energy
of the Justices of the Supreme Court would be spent appreciating millions of revised
ballots to the prejudice of their regular judicial functions in the Court, as the electoral
protest of every Juan, Pedro, and Jose who lost in the presidential elections would
have to be heard on the merits. Public policy abhors such a scenario and no public
good stands to be thereby served.
PADILLA, J., concurring and dissenting:

PROTESTANTS CANDIDACY FOR SENATOR IN THE MAY 1995 ELECTIONS, HER

ELECTION TO SAID OFFICE AND HER ACTUAL ASSUMPTION AND
DISCHARGE OF THE OFFICE COMBINED TO CONSTITUTE A SUPERVENING
FACT THAT RENDERED MOOT AND ACADEMIC HER PRESENT PROTEST.
- Protestants candidacy for Senator in the 8 May 1995 elections, her election to said
office and her actual assumption and discharge of the office, combined to
constitute, in my view, a supervening fact that rendered moot and academic her
present protest because, if she were to pursue her present protest (without such
supervening fact) and, she were to win the protest, her term of office as President of
the Philippine would in any case expire on 30 June 1998. When she, however,
chose to run for Senator in the 8 May 1995 elections, which was after her filing of
the present protest, she knew that, if elected, her term of office as Senator would
expire only on 30 June 2001. Therefore, as a successful protestant in this case, she
could be President only up to 30 June 1998. What happens then to the last three (3)
years of her term as Senator, i.e., 30 June 1998 to 30 June 2001? There would be a
void, a hiatus, or vacuum because after serving as President up to 30 June
1998 she can no longer assume the office of Senator from 30 June 1998 to 30 June
2001. There would likewise be a void, a hiatus or vacuum in her term of office as
Senator from the time she assumes the presidency to 30 June 1998 (assuming she
were to win the present protest). Thus, by continuing this protest, there could result
an ensuing vacuum in the office of Senator, to which position protestant has been
duly elected subsequent to the filing of her present protest. And yet, natura vacuum
abhorret. (Nature abhors a vacuum).
PUNO, J., dissenting:

1. ONLY
AFTER
THE
PROTESTANT
HAS
BEEN
AFFORDED
THE OPPORTUNITY TO ADDUCE FURTHER EVIDENCE TO PROVE HER CASE
CAN THE TRIBUNAL PROCEED TO EXAMINE THE CONTESTED BALLOTS
AND RULE WHETHER OR NOT THE PROTESTANT HAS FAILED TO MAKE A
CASE. - I will not dismiss as entirely irrelevant the allegations of the revisors of the
protestant that they discovered in the course of the revision irregularities in 13,510
precincts in the pilot areas. The protestant still has the opportunity to adduce further
evidence to prove her case. She can still undertake to make a technical
examination of the ballots through handwriting experts. She can still present the
testimonies of witnesses like voters, watchers, inspectors and others who have
knowledge of the alleged fraud and irregularities. She can still submit a
memorandum of facts and law to clinch her case. It is only after the protestant has
been afforded the opportunity to exercise these rights that the Tribunal can proceed
to examine the contested ballots. Then and only then can the Tribunal rule whether
or not the protestant failed to make a case.
2. ID.; THE TRIBUNAL CANNOT EVADE THE DUTY TO EXAMINE THE PROTESTED
BALLOTS, FOR THE BALLOTS ARE THE BEST EVIDENCE TO ENABLE THE
COURT TO DETERMINE THE VOTES OBTAINED BY THE PROTESTANT AND
THE PROTESTEE. It can be assumed arguendo that the protestant has lost her

right to present additional evidence by her failure to invoke it within a reasonable

time. Even then, I submit that the non-presentation of further evidence is
not necessarily fatal. Certain types of fraud and irregularities can be proved
without the testimonies of handwriting experts or the testimonies of voters,
watchers, inspectors and others who witnessed the same. There are fraud and
irregularities which are patent on the face of the ballots and other election
documents and paraphernalia. Ballots that are marked, ballots that are spurious,
ballots written by the same hand, a ballot written by different hands, tampered tally
sheets, false list of voters, falsified election returns, and other election documents
can be appreciated without need of evidencealiunde. For this reason. the Tribunal
cannot evade the duty to examine the protested ballots for the ballots are the best
evidence to enable the court to determine the votes obtained by the protestant and
the protestee. Needless to state, until the Tribunal examines and appreciates the
protested ballots it cannot dismiss the protest.
3. ID.; MR. JUSTICE PUNO DOES NOT SUBSCRIBE TO THE RULING OF THE
MAJORITY THAT THE PROTESTANT ABANDONED HER PROTEST WHEN SHE
RAN FOR SENATOR AND DISCHARGED HER DUTIES. - I do not also subscribe
to the ruling of the majority that the protestant abandoned her protest when she ran
for Senator and discharged her duties. Abandonment in law means, voluntary
relinquishment of all right, title, claim x x x with the intention of not reclaiming it. In
ascertaining abandonment, whether in election, property, or criminal
litigations, x x x intention is the first and paramount object of inquiry for there
can be no abandonment without the intent to abandon. Intention is subjective and
can be inferred from the acts and conduct of a person. It is a question of fact. In the
case at bar, the Tribunal cannot resolve this question of fact for lack of competent
evidence.The protestee has not adduced evidence to prove acts and omissions of
the protestant which can be the basis for a finding that she intentionally
abandoned her protest. Indeed, the protestee does not want the protest to be
dismissed on a technicality but prays that it be decided on the merits. The lack of
competent evidence on record notwithstanding, the majority ruled, to wit: x x x She
knew that the term of office of the Senators who would then be elected would be six
(6) years, to commence at noon on the thirtieth day of June next following their
election and to end at noon of 30 June 2001. Knowing her high sense of integrity
and candor, it is most unlikely that during her campaign she promised to serve the
electorate as Senator, subject to the outcome of this protest. In short, she filed her
certificate of candidacy for the Senate without any qualification, condition, or
reservation.
4. ID.; THE MAJORITY RULING ON ABANDONMENT IS INCONSISTENT WITH THE
DOCTRINE THAT AN ELECTION CONTEST IS CONCERNED LESS WITH THE
PRIVATE INTEREST OF THE CANDIDATES BUT MORE OF PUBLIC
INTEREST. A more fundamental reason prevents me from joining the
majority. With due respect, I submit that the majority ruling on abandonment is
inconsistent with the doctrine that an election contest is concerned less with the
private interest of the candidates but more with public interest. Under a
republican regime of government, the overarching object of an election contest is to

seek and enforce the judgment of the people on who should govern them. It is not a
happenstance that the first declaration of policy of our Constitution underlines in
bright that sovereignty resides in the people and all government authority emanates
from them. The first duty of a citizen as a particle of sovereignty in a democracy is
to exercise his sovereignty just as the first duty of any reigning government is to
uphold the sovereignty of the people at all cost. Thus, in Moraleja vs. Relova, we
emphatically held that x x x once the court has acquired jurisdiction over an election
contest, the public interest involved demands that the true winner be known
without regard to the wishes or acts of the parties so much so that there can be
no default, compromise nor stipulation of facts in this kind of cases. Wisely, this
Tribunal has consistently demurred from dismissing election contests even on the
ground of death of the protestee or the protestant. The majority appears to stray
away from this lodestar of our Constitution. It will dismiss the case at bar even while
the protestee and the protestant are yet alive, even while the term of the 1992
presidential-elect has yet to expire, and even while the protestee and the
protestant together plead that the Tribunal should determine the true will of the
people by deciding their dispute on the merit and not on technicalities that trifle with
the truth. I submit that it is the better stance for the Tribunal to decide this election
contest on the merit and vindicate the political judgment of the people which far
surpasses in significance all other considerations. Our duty to tell the people who
have the right to govern them cannot depend on the uncertain oscillations of
politics of the litigants as often times they are directed by the wind of
convenience, and not by the weal of the public. Even the protestee has
pleaded that the protest be tried on its merit as it involves a matter of
paramount and grave public interest. Considering these distinct facts, the
Tribunal should not dismiss the protest on the ground of mootness.
KAPUNAN, J., dissenting:

1. MR. JUSTICE KAPUNAN DISAGREES THAT AS A CONSEQUENCE OF THE

PROTESTANTS ELECTION AND ASSUMPTION OF OFFICE AS SENATOR, SHE
HAS EFFECTIVELY ABANDONED HER ELECTION PROTEST. - When the
protestant ran for the Senate last year, she was not the President of the country and
there was nothing to relinquish.Abandonment is the giving up of a thing absolutely,
indicating intention to forsake or relinquish the same. In relation to public office,
abandonment must be total and under such circumstance as clearly to indicate an
absolute relinquishment. That is not the situation here, because when the protestant
ran for presidency, she was not even an elective official and there was no position
to abandon.
2. ID.; MR. J. KAPUNAN DOES NOT SUBSCRIBE TO THE MAJORITYS THEORY
THAT BY FILING THE CERTIFICATE OF CANDIDACY FOR THE SENATE,
CAMPAIGNING FOR SAID OFFICE AND SUBMITTING HERSELF TO BE VOTED
UPON IN THE ELECTIONS, THE PROTESTANT HAD ENTERED INTO A
POLITICAL CONTRACT WITH THE ELECTORATE THAT IF ELECTED SHE
WOULD ASSUME THE OFFICE OF SENATOR, DISCHARGE ITS FUNCTIONS,

AND SERVE HER CONSTITUENCY AS SUCH FOR THE TERM FOR WHICH
SHE WAS ENTITLED. - First, there is no evidence that she made such promise. On
the contrary, I believe, she had made herself clear during the 1995 Senatorial
campaign that she was not abandoning her protest, meaning that in the event she
would be declared the winner in the 1992 Presidential elections, she may opt to
assume the Presidency, thus shortening her term of office as Senator. When the
voters made their choice for the Senate, they were fully aware that the protestant
may not serve the full term of her office if she wins her protest. Despite this, the
voters elected her as Senator. Second, if by filing her certificate of candidacy as
Senator and campaigning for said office, she entered into a contract with the
electorate that she will serve the full term of her office as Senator, in the same
token, by filing her certificate of candidacy for the Presidency and campaigning for
that office, she must necessarily have entered into a contract with the electorate
that she will serve the full term of the Presidency if elected. Third, there has been
several cases where members of Congress gave up their positions before their
terms of office expired to accept appointments in the cabinet or other high-profile
positions. To mention a few, the present Secretary of Justice Teofisto Guingona
gave up his Senate seat a few years ago to become Executive Secretary.
Congressman Salvador Escudero has just been named the new Secretary of
Agriculture. Yet, there has not been any murmur that said officials have violated any
political contract with the electorate that elected them to Congress.
3. ID.; MR. J. KAPUNAN WOULD NOT THEREFORE CONCLUDE THAT THE
PROTESTANT ABANDONED HER ELECTION PROTEST WHEN SHE WAIVED
THE REVISION OF THE REMAINING BALLOTS, AND FAILED TO INFORM THE
TRIBUNAL WHETHER SHE STILL INTENDS TO PRESENT ADDITIONAL
EVIDENCE AFTER THE COMPLETION OF THE REVISION OF THE BALLOTS
FROM THE PILOT AREAS. - Her waiver could have been due to reasons other
than that the majority speculatively imputes to her. It could have been based on her
belief that the contested ballots in the 13,500 precincts, if and when properly
appreciated, would sufficiently substantiate the allegations in her petition. Or she
could have been impelled by the desire to expedite the electoral proceedings and
minimize her expenses. With regard to the protestants failure to inform the Tribunal
whether she still intends to present additional evidence after the completion of the
revision of the ballots from the pilot areas (as embodied in the resolution dated 21
October 1993), her omission, likewise does not amount to a waiver or abandonment
of her election protest. Resolution of election cases, it must be stressed, is a
Continuous process albeit divided into various stages. These stages - revision,
technical examination, presentation of evidence and submission of memoranda are but parts of one whole procedure. Except for the technical examination of the
ballots, wherein the parties are expressly given discretion whether or not to move
for one after completion of each stage, the proceedings necessarily move to the
next step. The procedure will run its natural course pursuant to the rules of the
Presidential Electoral Tribunal (PET). Since the phases or stages in the electoral
protest are laid down in the rules, the parties are supposed to act in accordance
with the sequential order of the proceedings without being required to manifest
formally at each stage if they are willing to proceed to the next one.Hence, waiver of

one stage or the remaining stages cannot he impliedly imputed to a party unless
there is a manifest intentional and unequivocal statement or action to this
effect. The least the Tribunal should have done was to direct the protestant to show
cause why her protest should not be dismissed for failure to file the required
information, which liberal process the Tribunal customarily accords the parties to
find out the reasons for the omission.
4. ID.; THE PROTEST CANNOT BE LAWFULLY DISMISSED UNDER SECTION 61
OF THE P.E.T. RULES; REASON. - The protest cannot, therefore, be lawfully
dismissed under Section 61 of the PET rules. Bear in mind that not only revision of
the ballots but also reception of evidence is required before the Tribunal can dismiss
an election protest on the grounds that the protestant will most probably fail to make
out his case. In the instant protest, the revision of the ballots has hardly been
completed and presentation of evidence, undoubtedly the most crucial aspect of the
proceedings, has yet to commence. To utilize Section 61 of the PET rules to justify
dismissal of the instant case at this early stage of the proceedings is to jump the
gun on both the protestant and the protestee. Having granted the protestants
motion of August 16, 1995 to dispense with the revision of ballots and other election
documents in the remaining precincts of the pilot areas where fraud was allegedly
rampant, we ought to proceed to the next step, by giving both parties a chance to
present their evidence. Under Rule 61 of the Rules of the Presidential Electoral
Tribunal, if, after examination and proof of such evidence we would be convinced
that the protestant would most probably fail to make out her case, then the case
could be dismissed at once. This process would take a little more time, but it is
solution which is fair and just to everyone and is the best way to finally resolve the
doubt surrounding the 1992 presidential elections, thus help pave the way to true
political stability and national recovery.
VITUG, J., separate opinion:

MR. JUSTICE VITUG IS UNABLE TO SHARE THE CONCLUSION OF THE

MAJORITY THAT THE PROTESTANT IS DEEMED TO HAVE ABANDONED HIS
PROTEST WHEN SHE RAN IN THE MAY 1995 ELECTIONS FOR, AND WAS
PROCLAIMED AND TOOK OFFICE AS, SENATOR OF THE REPUBLIC. - The
submission that the protestant is deemed to have abandoned her protest because
she ran in the May 1995 elections for the position of, and was proclaimed and so
eventually took office as, Senator of the Republic is a conclusion, I fear, I am unable
to share. Abandonment is personal, and it must be manifested in unequivocal terms
by the person charged with it. If, as it so appears, the protestant has not to date
informed the tribunal whether (or not) after the completion of the revision of the
ballots from her pilot areas she would present evidence in connection therewith,
then the tribunal must act on this basis and decide on whatever it may have on
hand with equal opportunity to the protestee to make his own submission of
evidence if still desired. Considering that there appears to be no constitutional
proscriptions involved, I vote to allow the Tribunal to proceed with a final

determination on the merits of the protest rather than a dismissal on the mere
ground of abandonment.
APPEARANCES OF COUNSEL
Leonardo C. Aguilar for protestant.
Former Justice Lino Patajo, Avelino J. Cruz, Jr., Renato L. Cayetano, Emerito M.
Salva, and Simeon V. Marcelo for protestee.

RESOLUTION
In her motion of 16 August 1995, reiterated in her Comment of 29
August 1995, Protestant Miriam Defensor-Santiago prayed that the revision of ballots in
the remaining precincts of the pilot areas be dispensed with and the revision process in
the pilot areas be deemed completed.
We deferred action on that motion and required the Protestant and the Protestee to
submit their respective memoranda on the issue of whether this case had been
rendered moot by the election of the Protestant as a Senator in the May 1995 election
and her assumption of office as such on 30 June 1995.
The Protestant answers this issue in the negative. Relying on Sibulo vda. de De
Mesa vs. Mencias, Lomugdang vs. Javier, and De Castro vs. Ginete, she asserts that
an election contest involves not only an adjudication and settlement of the private
interests of the rival candidates, but more importantly, the paramount need to dispel,
once and for all, the uncertainty that beclouds the true choice of the electorate. Hence, it
is imbued with, public interest and should be pursued to its final conclusion to determine
the bona fide winner. She further asserts that an election case may be rendered moot
only if the term of the contested office has expired, thus her election as Senator and
assumption of office as such cannot, under the rule laid down in Moraleja vs. Relova,
be construed as an abandonment of the instant protest. Finally, she alleges that this
Court has departed from the orthodox view that a case should be dismissed if it has
been mooted.
[1]

[2]

[3]

[4]

[5]

[6]

For his part, the Protestee submits that there is strong legal basis for this Tribunal to
rule that the Protestant is deemed to have abandoned the instant protest, in light of the
ruling inDimaporo vs. Mitra which construed Section 67, Article IX of B.P. Blg. 881
(Omnibus Election Code). He submits, however, that public interest requires that this
protest be resolved on the merits considering that: (a) it involves a matter of paramount
and grave public interest; and (b) it was filed merely to keep Protestant Santiago in the
limelight in preparation for her Senatorial campaign. He likewise claims that a resolution
on the merits would confirm his victory in the 11 May 1992 presidential election and
prove that the instant protest is unfounded. Furthermore, it would establish guiding and
controlling principles or doctrines with respect to presidential election protest cases,
thereby educating the bench and the bar and preventing the indiscriminate filing of
baseless protest cases.
[7]

[8]

We cannot subscribe to the view of the Protestee that by filing her certificate of
candidacy for Senator Protestant Santiago ipso facto forfeited her claim to the office of
President pursuant to Section 67 of B.P. Blg. 881. Plainly, the said section applies

exclusively to an incumbent elective official who files a certificate of candidacy for any
office other than the one he is holding in a permanent capacity. Even more plain is that
the Protestant was not the incumbent President at the time she filed her certificate of
candidacy for Senator nor at any time before that. Thus, the holding in Dimaporo does
not apply to the Protestant.
Neither do we find any convincing logic to the Protestees proposition that this case
should nevertheless be resolved on the merits because its filing was done in bad faith,
i.e., merely to keep the Protestant in the limelight in preparation for her Senatorial
campaign. If that were so, then public interest would be served if this case were put to
an abrupt end after the Protestant won a seat in the Senate. Finally, neither do we find
any cogent nor compelling reason to proceed with this case, in the event that we find it
to be moot, simply to establish guiding and controlling principles or doctrines with
respect to election protests involving the office of the President or the Vice- President.
I.
The key then to the resolution of the aforestated issue is the consideration of public
interest and public policy and their encompassing effects on election cases which have
been unequivocally expressed in the cases cited by the Protestant.
In Sibulo vda. de De Mesa vs. Mencias, this Court stated:
[9]

It is axiomatic that an election contest involving as it does not only the adjudication
settlement of the private interests of the rival candidates but also the paramount need
of dispellling once and for all the uncertainty that beclouds the real choice of the
electorate with respect to who shall discharge the prerogatives of the offices within
their gift, is a proceeding imbued with public interest which raises it onto a plane over
and above ordinary civil actions. For this reason, broad perspectives of public policy
impose upon courts the imperative duty to ascertain by all means within their
command who is the real candidate elected in as expeditious a manner as possible,
without being fettered by technicalities and procedural barriers to the end that the will
of the people may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December
29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably
intertwined are the interests of the contestants and those of the public that there can be
no gainsaying the logic of the proposition that even the voluntary cessation in office
of the protestee not only does not ipso facto divest him of the character of an
adversary in the contest inasmuch as he retains a party interest to keep his political
opponent out of the office and maintain therein his successor, but also does not in any
manner impair or detract from the jurisdiction of the court to pursue the proceeding to
its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597;
Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba, G.R. L-13206).

Upon the same principle, the death of the protestee De Mesa did not abate the
proceedings in the election protest filed against him, and it may be stated as a rule that
an election contest survives and must be prosecuted to final judgment despite the
death of the protestee. (In Silverio vs. Castro, 19 SCRA 520 [1967], where the trial
court proceeded with the trial of an election protest and decided it even if the protestee
had already died and his Vice-Mayor had assumed office by succession, this Court,
instead of dismissing the appeal brought on behalf of the deceased protestee, required
the Vice-Mayor to intervene on the side of the appellant).
In Lomugdang vs. Javier, this Court declared:
[10]

Determination of what candidate has been in fact elected is a matter clothed with
public interest, wherefore, public policy demands that an election contest, duly
commenced, be not abated by the death of the contestant. We have squarely so ruled
in Sibulo vda. de Mesa vs. Judge Mencias, G.R. No. L-24583, October 26, 1966, in
the same spirit that led this Court to hold that the ineligibility of the protestant is not a
defense (Caesar vs. Garrido, 53 Phil. 57), and that the protestees cessation in office is
not a ground for the dismissal of the contest nor detract the Courts jurisdiction to
decide the case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62
Phil. 584).
In the same Sibulo case, already cited, this Court likewise ruled that by virtue of
Section 7, Republic Act 2264, the vice-mayor elect has the status of a real party in
interest in the continuation of the proceedings and is entitled to intervene therein. For if
the protest succeeds and the protestee is unseated, the vice mayor succeeds to the
office of mayor that becomes vacant if the duly elected cannot assume the post.
In Moraleja vs. Relova, this Court ruled:
[11]

As to the contention that by accepting such appointment as Technical Assistant,

protestant has abandoned his protest, all that need be said is that once the court has
acquired jurisdiction over an election contest, the public interest involved demands
that the true winner be known without regard to the wishes or acts of the parties, so
much so that there can be no default, compromise nor stipulation of facts in this kind
of cases. (Francisco, How To Try Election Cases, p. 163, citing Civilio v. Tomacruz,
62 Phil. 689). In the same manner that the acceptance by the protestee of an
appointment to another position is not a ground for dismissal of the protest (Philippine
Law on Elections by Martin, 1970 ed., pp. 258-259, citing Calvo v. Maramba, G.R.
No. L-13206, January 7, 1918) like the resignation of the protestee from the contested
office (Angeles v. Rodriguez, 46 Phil. 595), simply because it is of public interest that
the real winner be known, neither can the acceptance of a more or less temporary
employment, such as that of a technical assistant of the Vice-Governor, which is a
primarily confidential position, be considered as inconsistent with protestants

determination to protect and pursue the public interest involved in the matter of who is
the real choice of the electorate. In such instances, the plight of protestant may be
viewed in the same light as that of an employee who has been illegally dismissed and
who, to find means to support himself and family while he prosecutes his case for
reinstatement, accepts a temporary employment elsewhere. Such employee is not
deemed to have abandoned the position he seeks to recover. (Tan v.Gimenez, et al.
G.R. No. L-12525, February 19, 1960, 107 Phil. 17; Potot v. Bagano, G.R. No. L2456, January 25, 1949, 82 Phil. 679). Of course, the case of protestant who accepts a
permanent appointment to a regular office could be different, but We are not ruling on
it here.
In De Castro vs. Ginete, this Court stated:
[12]

The purpose of an election protest is to ascertain whether the candidate proclaimed

elected by the board of canvassers is really the lawful choice of the electorate. What is
sought in an election protest is the correction of the canvass of the votes, which is the
basis of the proclamation of the winning candidate. An election contest involves a
public office in which the public has an interest. Certainly, the act of a losing
candidate of recognizing the one who is proclaimed the winner should not bar the
losing candidate from questioning the validity of the election of the winner in the
manner provided by law.
The factual milieu in these cases is not on all fours with the instant protest.
In Sibulo vda. de De Mesa, as in the later case of Silverio vs. Castro, the protestee
had been proclaimed the winning mayoralty candidate and had assumed office, and
then diedduring the pendency of the election protest. While in Lomugdang, it was the
protestant who died during the pendency of the protest.
[13]

In Moraleja, the election protest survived the protestants acceptance of temporary

employment during the pendency of his election protest. Likewise, in De los Angeles vs.
Rodriguez, cited in Sibulo vda. de De Mesa, an election protest was continued despite
the resignation from office of the protestee.
[14]

Finally, in De Castro, the only issue presented was whether the protest should be
dismissed on the ground of estoppel. In this proceeding, the protestant congratulated
the protestee after the latter was proclaimed the winner by the board of canvassers and
even exhorted those present during the inauguration and installation into office of the
protestee to support the latters administration.
May the above dicta apply to the case of Protestant Santiago who assumed the
office of Senator after her election as such in the 8 May 1995 election? This question
was impliedly raised but not resolved in Moraleja. For after holding that the acceptance
by the protestant therein of a temporary appointment during the pendency of his protest
did not amount to an abandonment thereof, nor could it be considered inconsistent with
his determination to protect and pursue the public interest involved in the election

protest, this Court noted: Of course, the case of a protestant who accepts a permanent
appointment to a regular office could be different, but We are not ruling on it here.
[15]

Indeed, it would be entirely different where the protestant pursued the new position
through a popular election, as in the case of Protestant Santiago who filed a certificate
of candidacy for Senator in the 8 May 1995 election, campaigned for such office, and
submitted herself to be voted upon. She knew that the term of office of the Senators
who would then be elected would be six years, to commence at noon on the thirtieth
day of June next following their election and to end at noon of 30 June 2001. Knowing
her high sense of integrity and candor, it is most unlikely that during her campaign, she
promised to serve the electorate as Senator, subject to the outcome of this protest. In
short, she filed her certificate of candidacy for the Senate without any qualification,
condition, or reservation.
[16]

In so doing, she entered into a political contract with the electorate that if elected,
she would assume the office of Senator, discharge its functions and serve her
constituency as such for the term for which she was elected. These are givens which
are in full accord with the principle enshrined in the Constitution that public office is a
public trust, and public officers and employees must at all times be accountable to the
people and serve them with utmost responsibility, integrity, loyalty and efficiency.
[17]

Indeed, it has been aptly said:

It is impossible that government shall be carried on, and the functions of civil society
exercised, without the aid and intervention of public servants or officers, and every
person, therefore, who enters into civil society and avails himself of the benefits and
protection of the government, must owe to this society, or, in other words, to the
public, at least a social duty to bear his share of the public burdens, by accepting and
performing, under reasonable circumstances, the duties of those public offices to
which he may be lawfully chosen.
[18]

In this jurisdiction, an elected public official may even be held criminally liable
should he refuse to discharge an elective office.
[19]

The term of office of the Senators elected in the 8 May 1995 election is six years,
the first three of which coincides with the last three years of the term of the President
elected in the 11 May 1992 synchronized elections. The latter would be Protestant
Santiagos term if she would succeed in proving in the instant protest that she was the
true winner in the 1992 elections. In assuming the office of Senator then, the Protestant
has effectively abandoned or withdrawn this protest, or at the very least, in the language
of Moraleja, abandoned her determination to protect and pursue the public interest
involved in the matter of who is the real choice of the electorate. Such abandonment or
withdrawal operates to render moot the instant protest. Moreover, the dismissal of this
protest would serve public interest as it would dissipate the aura of uncertainty as to the
results of the 1992 presidential election, thereby enhancing the all-too crucial political
stability of the nation during this period of national recovery.

It must also be stressed that under the Rules of the Presidential Electoral Tribunal,
an election protest may be summarily dismissed, regardless of the public policy and
public interest implications thereof, on the following grounds:
(1) The petition is insufficient in form and substance;
(2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof;
(3) The filing fee is not paid within the periods provided for in these Rules;
(4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after
the filing of the protest; and
(5) The petition or copies thereof and the annexes thereto filed with the Tribunal are not
clearly legible.[20]

Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court
which apply in a suppletory character, may likewise be pleaded as affirmative
defenses in the answer. After which, the Tribunal may, in its discretion, hold a
preliminary hearing on such grounds. In sum, if an election protest may be dismissed
on technical grounds, then it must be, for a decidedly stronger reason, if it has become
moot due to its abandonment by the Protestant.
[21]

[22]

II.
There is yet another reason why this case should now be dismissed.
This Tribunal cannot close its eyes to the fact that the Protestant has decided to
waive the revision of the remaining unrevised ballots from 4,017 precincts out of the
17,527 precincts of the designated three pilot areas. This is an unabashed reversal from
her original stand in her Motion and Manifestation dated 18 October 1993. Taking this
into account, this Tribunal declared in its resolution of 21 October 1993:
After deliberating on the foregoing pleadings and the arguments of the parties, the
Tribunal rules for the Protestant insofar as the revision of the remaining ballot boxes
from her pilot areas are concerned, and against the immediate application of Rule 61 of
the Rules of the Tribunal to the Protestee in respect of the Counter-Protest.
At this stage of the proceedings in this case it cannot be reasonably determined
whether the revised ballots are considerable enough to establish a trend either in favor
of or against the Protestant as would justify an appropriate action contemplated in Rule
61 of the Rules of the Tribunal, or whether the unrevised ballots from said areas would
not, in the language of the Protestant, materially affect the result of the representative
sample of the ballot boxes so far revised. As to the 1,300 ballot boxes from Makati, the
proper time to raise the objections to the ballot boxes and its contents would be during
the revision stage.
Consequently, we resolved therein to:
A. ORDER the revision of the remaining unrevised ballot boxes enumerated in the
aforequoted paragraph A of the 5 October 1993 Resolution and for that purpose to

DIRECT the Acting Clerk of Court of the Tribunal to collect said ballot boxes and
other election documents and paraphernalia from their respective custodians in the
event that their revisions in connection with other election protests in which they are
involved have been terminated, and if such revisions are not yet completed, to
coordinate with the appropriate tribunal or court in which such other election
protests are pending and which have already obtained custody of the ballot boxes
and started revision with the end in view of either seeking expeditious revisions in
such other election protests or obtaining the custody of the ballot boxes and related
election documents and paraphernalia for their immediate delivery to the Tribunal;
and
B. REQUIRE the Protestant to inform the Tribunal, within ten (10) days from receipt
hereof, if after the completion of the revision of the ballots from her pilot areas she
would present evidence in connection therewith.

Until the present, however, the Protestant has not informed the Tribunal whether
after the completion of the revision of the ballots from her pilot areas, she still intends to
present evidence in connection therewith. This failure then, is nothing short of a
manifest indication that she no longer intends to do so.
It is entirely irrelevant at this stage of the proceedings that the Protestants revisors
discovered in the course of the revisions alleged irregularities in 13,510 out of the
17,525 contested precincts in the pilot areas and have objected to thousands of ballots
cast in favor of the Protestee. Revision is merely the first stage, and not the alpha and
omega, of an election contest. In no uncertain terms then, this Tribunal declared in its
resolution of 18 March 1993 that:

Protestant knows only too well, being a lawyer and a former judge herself, that the
revision phase of her protest is but the first stage in the resolution of her electoral
protest and that the function of the revisors is very limited. In her 12 February 1993
Comment on Protestees 5 February 1993 Urgent Motion for the issuance of a
resolution which, inter alia, would clarify that revisors may observe the objections
and/or claims made by the revisors of the other party as welt as the ballots subject
thereof, and record such observations in a form to be provided for that purpose,
Protestant unequivocally stated:
8. Further, the principle and plan of the RPET [Rules of the Presidential Electoral
Tribunal] is to subdivide the entire election contest into various stages. Thus, the
first stage is the Revision Proper. Second is the technical examination if so desired
by either party. Third is the reception of evidence. And Fourth, is the filing of parties
memoranda.

and described the function of the revisors as solely to examine and segregate the
ballots according to which ballots they would like to contest or object (contested ballots)
and those which they admit or have no objections (uncontested ballots). Indeed,
revisors do not have any judicial discretion; their duties are merely clerical in
nature (Hontiveros vs. Altavas, 24 Phil. 632 [1913]). In fact, their opinion or decision on
the more crucial or critical matter of what ballots are to be contested or not does not
even bind the Tribunal (Yalung vs. Atienza, 52 Phil. 781 [1929]; Olano vs. Tibayan, 53

Phil. 168 [1929]). Thus, no undue importance may be given to the revision phase of an
election contest. It can never serve as a logical or an acceptable basis for the
conclusion that massive fraud or irregularities were committed during an election or that
a Protestant had won in said election. If that were so, a Protestant may contest all ballot
boxes and, in the course of the revision thereof, object - for any imagined ground
whatsoever, even if the same be totally unfounded and ridiculous - to all ballots credited
to the Protestee; and then, at the end of the day, said Protestant may even announce to
the whole world that contrary to what is reflected in the election returns, Protestee had
actually lost the elections.
All told, a dismissal of this election protest is inevitable.
III.
However, three Members of the Tribunal outrightly disagree with the foregoing
disquisitions. Hence, a reply to the important points they raise is in order.
Mr. Justice Punos perception that the majority would dismiss this election protest as
moot and academic on two (2) grounds: first, that the findings of irregularities made by
the revisors of the protestant in the course of the revision of ballots in 13,510 contested
precincts are entirely irrelevant; and second, she abandoned her protest when she filed
her certificate of candidacy in the 8 May 1995 senatorial elections, is inaccurate. The
dispositive portion of this resolution leaves no room for any doubt or miscomprehension
that the dismissal is based on the ground that the protest has been rendered moot and
academic by its abandonment or withdrawal by the Protestant as a consequence of her
election and assumption of office as Senator and her discharge of the duties and
functions thereof. There is, therefore, ONLY ONE reason or ground why the protest has
been rendered moot and academic, i.e., it has been abandoned or withdrawn. This was
the very issue upon which the parties were required, in the resolution of 26 September
1995, to submit their respective memoranda.
The majority neither conveyed, asserted nor even suggested, as Mr. Justice Puno
has apparently understood, that this protest has become moot and academic because
the finding of irregularities by the Protestants revisors in the course of the revision of the
ballots in 13,510 contested precincts in the pilot areas are entirely irrelevant, and that
the Protestant has abandoned this protest by filing a certificate of candidacy for the
office of Senator in the 8 May 1995 elections. The majoritys views on irrelevancy and on
the filing of the certificate of candidacy are not the grounds themselves, but parts only of
the arguments to strengthen the conclusion reached, i.e., abandonment. Otherwise
stated, in order to make the point crystal clear, the majority never held that the
irrelevancy of the finding of irregularities is a ground why this protest has become moot
and academic. It only declared that the Protestants: (a) waiver of revision of the
unrevised ballots from the remaining 4,017 contested precincts in the pilot areas; and
(b) failure to comply with the resolution of 21 October 1995 requiring her to inform the
Tribunal within ten days from notice if she would still present evidence after completion
of the revision of the ballots from her pilot areas - rendered such findings of irregularities

entirely irrelevant considering the Tribunals disquisitions on what revision is in its 18

March 1993 resolution.
In his dissent, Mr. Justice Puno lifted the words entirely irrelevant from the fourth
paragraph under the heading II of this Resolution. It must, however, be stressed that the
said paragraph is inexorably linked to the preceding two paragraphs relating to the
above-mentioned waiver and non-compliance, which provide the major premises for the
fourth paragraph; more concretely, the latter is nothing more than the logical conclusion
which the major premises support.
The reasons adduced by Mr. Justice Puno for the Protestants turn-around are mere
speculations. In any event, the Protestants possible belief that the contested ballots in
13,500 precincts when properly appreciated will sufficiently establish her electoral
victory, cannot stand against her previous insistence to proceed with the revision of the
remaining unrevised ballots and the aforementioned finding of the Tribunal in its
resolution of 21 October 1993. The Tribunal is not to blame for the slow pace of the
protest, if at all she so believes in such a state of things. Neither can the thought of
cutting costs be a valid reason. The Protestant knew from the outset that the revision of
the ballots in the pilot areas was a crucial phase of this protest because, under Rule 61
of the Rules of the Tribunal, the protest could forthwith be dismissed if the Tribunal were
convinced that she would probably fail to make out a case but only after examination of
the ballots from the pilot areas and the evaluation of the evidence offered in connection
therewith. It goes without saying that every ballot then in the pilot areas counts.
Then too, it was never the view of the majority that the Protestants filing of the
certificate of candidacy for a seat in the Senate in the 8 May 1995 election was the sole
and exclusive operative act for what Mr. Justice Puno perceives to be the majoritys
second ground why this protest has become moot and academic. To the majority, such
filing was only the initial step in a series of acts performed by the Protestant to
convincingly evince her abandonment of this protest, viz., campaigning for the office of
Senator, assumption of such office after her election, and her discharge of the duties
and functions of the said office. Precisely, in the resolution of 26 September 1995, this
Court directed the Protestant and the Protestee to submit their respective memoranda
on the issue.

[o]f whether or not the protest has not been rendered moot and academic by the
election of the Protestant as Senator and her subsequent assumption of office as such
on 30 June 1995. (italics supplied)
As to the concept of abandonment, Mr. Justice Puno and Mr. Justice Kapunan cite
Blacks Law Dictionary and the cases of Roebuck vs. Mecosta Country Road
Commission, Dober vs. Ukase Inv. Co., and McCall vs. Cull, cited therein. We have
turned to the primary sources of these cases, meticulously perused them, and found
none materially significant to this protest.
[23]

[24]

[25]

The first two cases above refer to abandonment of property. Roebuck involved the
issue of whether a roadway had been abandoned by the Mecosta Road
Commission. The Court therein held that in order for there to be an abandonment of

land dedicated to public use, two elements must concur, viz., (a) intention to relinquish
the right or property, but without intending to transfer title to any particular person; and
(b) the external act which such intention is carried into effect. While Dober, on the issue
of whether the plaintiff therein abandoned a certain property, quoted Corpus Juris that
the intention to abandon must be determined from the facts and circumstances of the
case. There must be a clear, unequivocal and decisive act of the party to constitute
abandonment in respect of a right secured - an act done which shows a determination
in the individual not to have a benefit which is designed for him.
It is, of course, settled that a public office is not deemed property.

[26]

Only McCall involved the issue of abandonment of office. It is stated therein as

follows:

Abandonment is a matter of intention and, when thought of in connection with an

office, implies that the occupant has quit the office and ceased to perform its
duties. As long as he continues to discharge the duties of the office, even though his
source of title is two appointments, one valid and the other invalid, it cannot be said
he has abandoned it. It was said in Steingruber v. City of San Antonio, Tex. Corn.
App., 220 S.W. 77, 78: A public office may be abandoned. Abandonment is a species
of resignation. Resignation and abandonment are voluntary acts. The former is a
formal relinquishment; the latter a relinquishment through non-user. Abandonment
implies non-user, but non-user does not, of itself, constitute abandonment. The failure
to perform the duties pertaining to the office must be with actual or imputed intention
on the part of the officer to abandon and relinquish the office. The intention may be
inferred from the acts and conduct of the party, and is a question of
fact. Abandonment may result from an acquiescence by the officer in his wrongful
removal or discharge, but, as in other cases of abandonment, the question of intention
is involved.
Strictly speaking, McCall is inapplicable to this protest for, as correctly stated in the
dissent of Mr. Justice Kapunan, the Protestant could not abandon the office of President
which she was not holding at the time she filed the certificate of candidacy for
Senator. But the majority of the Tribunal never declared, nor even implied, that she
abandoned the office of President because it knew that she had yet nothing to
abandon. Precisely, she filed this protest to be declared the winner for that office, to
thereafter assume and perform the duties thereof, and exercise the powers appertaining
thereto. What the Tribunal explicitly states is that the Protestant abandoned this
Protest, thereby rendering this protest moot.
Mr. Justice Puno also insists that abandonment raises a question of fact and that
the Tribunal cannot resolve it for lack of competent evidence; moreover, he notes that
the Protestee has not adduced evidence which can be the basis for a finding that she
intentionally abandoned her protest; on the contrary, the Protestee does not want the
protest to be dismissed on a technicality but prays that it be decided on the merits.
Suffice it to say that the Protestant herself has not denied nor questioned the following

facts, which by themselves, constitute overwhelming proof of the intention to abandon

the protest:
(a) Filling of a certificate of candidacy for Senator for the 8 May 1995 elections;
(b) Campaigning for the office of Senator in such election,
(c) Taking her oath of office as Senator upon the commencement of the term therefor;
(d) Assumption of office as Senator; and
(e) Discharge and performance of the duties appertaining to the office of Senator.

These acts speak for themselves - res ipsa loquitur - to negate any proposition that
the Protestant has not abandoned this protest.
Thus, what initially appears to be the correct view in the dissent is, in the final
analysis, misplaced. This must also be the verdict upon the following pronouncements
of Mr. Justice Puno:
A more fundamental reason prevents me from joining the majority. With due
respect, I submit that the majority ruling on abandonment is inconsistent with the
doctrine that an election contest is concerned less with the private interest of the
candidates but more with public interest. Under a republican regime of government, the
overarching object of an election contest is to seek and enforce the judgment of the
people on who should govern them. It is not a happenstance that the first declaration of
policy of our Constitution underlines in bright that sovereignty resides in the people and
all government authority emanates from them. The first duty of a citizen as a particle of
sovereignty in a democracy is to exercise his sovereignty just as the first duty of any
reigning government is to uphold the sovereignty of the people at all cost. Thus,
in Moraleja vs. Relova, we emphatically held that x x x once the court has acquired
jurisdiction over an election contest, the public interest involved demands that the true
winner be known without regard to the wishes or acts of the parties so much so that
there can be no default, compromise nor stipulation of facts in this kind of cases. Wisely,
this Tribunal has consistently demurred from dismissing election contests even on the
ground of death of the protestee or the protestant.
The majority appears to stray away from this lodestar of our Constitution. It will
dismiss the case at bar even while the protestee and the protestant are yet alive, even
while the term of the 1992 president-elect has yet to expire, and even while the
protestee and the protestant together plead that the Tribunal should determine the true
will of the people by deciding their dispute on the merit[s] and not on technicalities that
trifle with the truth. I submit that it is the better stance for the Tribunal to decide this
election contest on the merit[s] and vindicate the political judgment of the people which
far surpasses in significance all other considerations. Our duty to tell the people who
have the right to govern them cannot depend on the uncertain oscillations of politics of
the litigants as often times they are directed by the wind of convenience, and not by the
weal of the public.
For one, the majority has, in no uncertain terms. demonstrated the dissimilarities in
the factual settings of the instant protest vis-a-vis the earlier cases that enunciated the
doctrine relied on by Mr. Justice Puno. Then, too, it must be reiterated, to avoid further

miscomprehension, that the Moraleja ruling even conceded that the matter of
abandonment could be different if the petitioner therein had accepted a permanent
appointment to a regular office during the pendency of his protest. In short, Moraleja in
fact intimates abandonment of an election protest if, in the meantime, the Protestant
accepts a permanent appointment to a regular office. If that be so, then would it be, and
for weightier reasons, against a protestant who voluntarily sought election to an office
whose term would extend beyond the expiry date of the term of the contested office,
and after winning the said election, took her oath and assumed office and thereafter
continuously serves it.
In Moraleja, the Supreme Court was meticulous in excluding abandonment from the
enumeration of specific acts or wishes of the parties which must he disregarded
because of the public interest component of an election protest. As reflected in the
above
quotation
from
Mr.
Justice
Punos
dissent,
only default,
compromise, or stipulation of facts are included.
Finally, with all due respect, the above pronouncement of Mr. Justice Puno forgets
that, as distinctly pointed out in the early part of this Resolution, the Rules of the
Tribunal allow summary dismissal of election protests even for less important grounds,
to repeat, such as the petition filed with the Tribunal or the annexes attached thereto are
not clearly legible, or the filing fees and cash deposits were not filed within the periods
fixed in the Rules, and the additional provision for dismissal under Rule 61. All these
provisions of the Rules would then be put to naught or, at the very least, modified or
amended in a way not authorized by the Rules, if the theory of. Mr. Justice Puno be
accepted. Such theory would unreasonably bind the Tribunal to the technical minutiae of
trial on the merits to bring to their ultimate end all protests or contests filed before it including those filed by candidates who even forgot to vote for themselves and obtained
no votes in the final count, but, unable to accept defeat, filed a protest claiming massive
fraud and irregularities, vote-buying, and terrorism. Consequently, all the time and
energy of the Justices of the Supreme Court would be spent appreciating millions of
revised ballots to the prejudice of their regular judicial functions in the Court, as, the
electoral protest of every Juan, Pedro, and Jose who lost in the presidential
elections would have to be heard on the merits. Public policy abhors such a scenario
and no public good stands to be thereby served.
[27]

WHEREFORE, the Tribunal hereby resolved to

(1) GRANT the Protestants Motion of 16 August 1995 to dispense with the revision of
ballots and other election documents in the remaining precincts of the pilot areas:
(2) DISMISS the instant election protest, since it has been rendered moot and
academic by its abandonment or withdrawal by the Protestant as a consequence of
her election and assumption of office as Senator and her discharge of the duties
and functions thereof; and
(3) DISMISS, as a consequence, the Protestees Counter-Protest.

No pronouncements as to costs.
SO ORDERED.

Narvasa, C.J. (Chairman), Regalado, Davide, Jr., Romero and Hermosisima, Jr.,
JJ., concur.
Padilla, J, see concurring and dissenting opionion.
Bellosillo, J., adopts concurring and dissenting opinion of J. Padilla.
Melo, J., in the result.
Puno, J., dissents.
Vitug, J., see separate (dissenting) opinion
Kapunan, J., see dissenting opinion
Mendoza, J., joins Justice Kapunans dissenting opinion
Francisco, J., joins dissenting opinion of Justice Puno.
Panganiban, J., no part. As former practicing lawyer, have rendered legal opinion in
this matter.

[1]

18 SCRA 533 [1966].

[2]

21 SCRA 402 [1967].

[3]

27 SCRA 623 [1969].

[4]

Citing Tuanda vs. Dionaldo, 17 SCRA 646 [1966].

[5]

42 SCRA 10 [1971].

Citing Eastern Broadcasting Corp. (DYRE) vs. Dans, 137 SCRA 628 [1985]; Salonga vs. Patio, 134
SCRA 438 [1985].
[6]

[7]

202 SCRA 779 [1991].

[8]

The section reads:

Any elective official, whether national or local, running for any office other than the one which he is
holding in a permanent capacity, except for President and Vice-President, shall be considered ipso
facto resigned from his office upon the filing of his certificate of candidacy.
[9]

Supra. note 1 at 538.

[10]

Supra, note 2 at 407.

[11]

Supra, note 5 at 14-15.

[12]

Supra, note 3.

[13]

19 SCRA 520 [1967].

[14]

46 Phil. 595 [1924].

[15]

Supra, note 5 at 15.

[16]

Section 4. Article VI, 1987 Constitution.

[17]

Section 1. Article XI, 1987 Constitution.

[18]

FLOYD R MECHEM, Treatise on the Law of Public Officers and Employees, 240, 155-156.

[19]

Article 234, Revised Penal Code, provides:

ART 234. Refusal to discharge elective office.- The penalty of arresto mayor or a fine not exceeding 1,000
pesos, or both, shall be imposed upon any person who, having been elected by popular election to a
public office, shall refuse without legal motive to be sworn in or to discharge the duties of said office.
[20]

Rule 19. Rules of the Presidential Electoral Tribunal.

[21]

Rule 69, Id.

[22]

Rule 23. Id.

[23]

49 Mich. App. 128, 229 N.W. 2d 343, 349.

[24]

139 Or. 626, 10 P 2d 356, 357.

[25]

51 Ariz. 237,75 P 2d 696,698.

ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101, citing Rubi vs. Provincial Board of Mindoro, 38
Phil. 660 [1919].
[26]

[27]

19, Rules of the Presidential Electoral Tribunal.

EN BANC

[G.R. No. 161434. March 3, 2004]

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO,

JR., petitioners, vs. The COMMISSION ON ELECTIONS, RONALD
ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and
VICTORINO X. FORNIER, respondents.

[G.R. No. 161634. March 3, 2004]

ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY

POE, a.k.a. FERNANDO POE, JR., respondent.

[G. R. No. 161824. March 3, 2004]

VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON

ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN
AS FERNANDO POE JR., respondents.

DECISION
VITUG, J.:

Citizenship is a treasured right conferred on those whom the state believes

are deserving of the privilege. It is a precious heritage, as well as an inestimable
acquisition, that cannot be taken lightly by anyone - either by those who enjoy it
or by those who dispute it.
[1]

Before the Court are three consolidated cases, all of which raise a single question
of profound importance to the nation. The issue of citizenship is brought up to challenge
the qualifications of a presidential candidate to hold the highest office of the land. Our
people are waiting for the judgment of the Court with bated breath. Is Fernando Poe, Jr.,
the hero of silver screen, and now one of the main contenders for the presidency, a
natural-born Filipino or is he not?
The moment of introspection takes us face to face with Spanish and American
colonial roots and reminds us of the rich heritage of civil law and common law traditions,
the fusion resulting in a hybrid of laws and jurisprudence that could be no less than
distinctly Filipino.
Antecedent Case Settings
On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as
Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position of
President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang
Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of candidacy,
FPJ, representing himself to be a natural-born citizen of the Philippines, stated his name
to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and
his place of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier,
Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also
known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition
docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to
disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the
thesis that FPJ made a material misrepresentation in his certificate of candidacy by
claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his
parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his
father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish
subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he
could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate
child of an alien mother. Petitioner based the allegation of the illegitimate birth of
respondent on two assertions - first, Allan F. Poe contracted a prior marriage to a certain
Paulita Gomez before his marriage to Bessie Kelley and, second, even if no such prior
marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of
respondent.

In the hearing before the Third Division of the COMELEC on 19 January 2004,
petitioner, in support of his claim, presented several documentary exhibits - 1) a copy of
the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in Spanish
by Paulita Poe y Gomez attesting to her having filed a case for bigamy and
concubinage against the father of respondent, Allan F. Poe, after discovering his
bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit
aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a
certification issued by the Director of the Records Management and Archives Office,
attesting to the fact that there was no record in the National Archives that a Lorenzo Poe
or Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification
from the Officer-In-Charge of the Archives Division of the National Archives to the effect
that no available information could be found in the files of the National Archives
regarding the birth of Allan F. Poe.
On his part, respondent, presented twenty-two documentary pieces of evidence, the
more significant ones being - a) a certification issued by Estrella M. Domingo of the
Archives Division of the National Archives that there appeared to be no available
information regarding the birth of Allan F. Poe in the registry of births for San Carlos,
Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives Division of
the National Archives that no available information about the marriage of Allan F. Poe
and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d)
Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of
Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No.
20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the
certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract
between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil
Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said
office during the period of from 1900 until May 1946 were totally destroyed during World
War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of
merit. Three days later, or on 26 January 2004, Fornier filed his motion for
reconsideration. The motion was denied on 06 February 2004 by the COMELEC en
banc. On 10 February 2004, petitioner assailed the decision of the COMELEC before
this Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil
Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary
restraining order, a writ of preliminary injunction or any other resolution that would stay
the finality and/or execution of the COMELEC resolutions.
The other petitions, later consolidated with G. R. No. 161824, would include G. R.
No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The
Commission on Elections, Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.), and
Victorino X. Fornier," and the other, docketed G. R. No. 161634, entitled "Zoilo Antonio
G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both challenging the
jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph
7, of the 1987 Constitution, only the Supreme Court had original and exclusive
jurisdiction to resolve the basic issue on the case.

Jurisdiction of the Court

In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the COMELEC
deny due course to or cancel FPJs certificate of candidacy for alleged
misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before the
COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code

Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false
in consonance with the general powers of COMELEC expressed in Section 52 of the
Omnibus Election Code -

Section 52. Powers and functions of the Commission on Elections. In addition to the
powers and functions conferred upon it by the Constitution, the Commission shall
have exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections for the purpose of ensuring free, orderly and honest elections and in relation to Article 69 of the Omnibus Election Code which would authorize "any
interested party" to file a verified petition to deny or cancel the certificate of candidacy of
any nuisance candidate.
Decisions of the COMELEC on disqualification cases may be reviewed by the
Supreme Court per Rule 64 in an action for certiorari under Rule 65 of the Revised
Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also reads
[2]

[3]

"Each Commission shall decide by a majority vote of all its Members any case or
matter brought before it within sixty days from the date of its submission for decision
or resolution. A case or matter is deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum, required by the rules of the
Commission or by the Commission itself. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty days
from receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides that judicial
power is vested in one Supreme Court and in such lower courts as may be established
by law which power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government.

It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly
elevated to, and could well be taken cognizance of by, this Court. A contrary view could
be a gross denial to our people of their fundamental right to be fully informed, and to
make a proper choice, on who could or should be elected to occupy the highest
government post in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634,
invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in
assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003
and in urging the Supreme Court to instead take on the petitions they directly instituted
before it. The Constitutional provision cited reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to
the election, returns, and qualifications of the President or Vice-President, and may
promulgate its rules for the purpose."
The provision is an innovation of the 1987 Constitution. The omission in the 1935 and
the 1973 Constitution to designate any tribunal to be the sole judge of presidential and
vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas,
as not (being) justiciable controversies or disputes involving contests on the elections,
returns and qualifications of the President or Vice-President. The constitutional lapse
prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act
Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide
Protests Contesting the Election of the President-Elect and the Vice-President-Elect of
the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793
designated the Chief Justice and the Associate Justices of the Supreme Court to be the
members of the tribunal. Although the subsequent adoption of the parliamentary form of
government under the 1973 Constitution might have implicitly affected Republic Act No.
1793, the statutory set-up, nonetheless, would now be deemed revived under the
present Section 4, paragraph 7, of the 1987 Constitution.
[4]

Ordinary usage would characterize a "contest" in reference to a postelection scenario. Election contests consist of either an election protest or a quo
warranto which, although two distinct remedies, would have one objective in view, i.e.,
to dislodge the winning candidate from office. A perusal of the phraseology in Rule 12,
Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated
by the Supreme Court en banc on 18 April 1992, would support this premise -

Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to
the election, returns, and qualifications of the President or Vice-President of
the Philippines.
Rule 13. How Initiated. - An election contest is initiated by the filing of an election
protest or a petition for quo warranto against the President or Vice-President. An

election protest shall not include a petition for quo warranto. A petition for quo
warranto shall not include an election protest.
Rule 14. Election Protest. - Only the registered candidate for President or for VicePresident of the Philippines who received the second or third highest number of votes
may contest the election of the President or the Vice-President, as the case may be, by
filing a verified petition with the Clerk of the Presidential Electoral Tribunal within
thirty (30) days after the proclamation of the winner.
The rules categorically speak of the jurisdiction of the tribunal over contests relating
to the election, returns and qualifications of the "President" or "Vice-President", of
the Philippines, and not of "candidates" for President or Vice-President. A quo
warranto proceeding is generally defined as being an action against a person who
usurps, intrudes into, or unlawfully holds or exercises a public office. In such context,
the election contest can only contemplate a post-election scenario. In Rule 14, only a
registered candidate who would have received either the second or third highest
number of votes could file an election protest. This rule again presupposes a postelection scenario.
[5]

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4,
paragraph 7, of the 1987 Constitution, would not include cases directly brought before it,
questioning the qualifications of a candidate for the presidency or vice-presidency
before the elections are held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs.
Commission on Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs.
Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want
of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief historical background
on the concept of citizenship.
Perhaps, the earliest understanding of citizenship was that given by Aristotle, who,
sometime in 384 to 322 B.C., described the "citizen" to refer to a man who shared in the
administration of justice and in the holding of an office. Aristotle saw its significance if
only to determine the constituency of the "State," which he described as being
composed of such persons who would be adequate in number to achieve a selfsufficient existence. The concept grew to include one who would both govern and be
governed, for which qualifications like autonomy, judgment and loyalty could be
expected. Citizenship was seen to deal with rights and entitlements, on the one hand,
and with concomitant obligations, on the other. In its ideal setting, a citizen was active
in public life and fundamentally willing to submit his private interests to the general
interest of society.
[6]

[7]

[8]

The concept of citizenship had undergone changes over the centuries. In the 18th
century, the concept was limited, by and large, to civil citizenship, which established the

rights necessary for individual freedom, such as rights to property, personal liberty and
justice. Its meaning expanded during the 19th century to include political citizenship,
which encompassed the right to participate in the exercise of political power. The 20th
century saw the next stage of the development of social citizenship, which laid
emphasis on the right of the citizen to economic well-being and social security. The
idea of citizenship has gained expression in the modern welfare state as it so developed
in Western Europe. An ongoing and final stage of development, in keeping with the
rapidly shrinking global village, might well be the internationalization of citizenship.
[9]

[10]

[11]

[12]

The Local Setting - from Spanish

Times to the Present
There was no such term as "Philippine citizens" during the Spanish regime but
"subjects of Spain" or "Spanish subjects." In church records, the natives were
called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish laws
on citizenship became highly codified during the 19th century but their sheer number
made it difficult to point to one comprehensive law. Not all of these citizenship laws of
Spain however, were made to apply to the Philippine Islands except for those explicitly
extended by Royal Decrees.
[13]

[14]

Spanish
laws
on
citizenship
were
traced
back to
the Novisima
Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the law was
extended to the Philippines remained to be the subject of differing views among experts;
however, three royal decrees were undisputably made applicable to Spaniards in the
Philippines - the Order de la Regencia of 14 August 1841, the Royal Decree of 23
August 1868 specifically defining the political status of children born in the Philippine
Islands, and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was
expressly made applicable to the Philippines by the Royal Decree of 13 July 1870.
[15]

[16]

[17]

[18]

The Spanish Constitution of 1876 was never extended to the Philippine Islands
because of the express mandate of its Article 89, according to which the provisions of
the Ultramaramong which this country was included, would be governed by special
laws.
[19]

It was only the Civil Code of Spain, made effective in this jurisdiction on 18
December 1889, which came out with the first categorical enumeration of who were
Spanish citizens. -

(a) Persons born in Spanish territory,

(b) Children of a Spanish father or mother, even if they were born outside of
Spain,
(c) Foreigners who have obtained naturalization papers,

(d) Those who, without such papers, may have become domiciled inhabitants
of any town of the Monarchy.
[20]

The year 1898 was another turning point in Philippine history. Already in the state of
decline as a superpower, Spain was forced to so cede her sole colony in the East to an
upcoming world power, the United States. An accepted principle of international law
dictated that a change in sovereignty, while resulting in an abrogation of all political laws
then in force, would have no effect on civil laws, which would remain virtually intact.
The Treaty of Paris was entered into on 10 December 1898 between Spain and the
United States. Under Article IX of the treaty, the civil rights and political status of the
native inhabitants of the territories ceded to the United States would be determined by
its Congress [21]

"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain
by the present treaty relinquishes or cedes her sovereignty may remain in such
territory or may remove therefrom, retaining in either event all their rights of property,
including the right to sell or dispose of such property or of its proceeds; and they shall
also have the right to carry on their industry, commerce, and professions, being
subject in respect thereof to such laws as are applicable to foreigners. In case they
remain in the territory they may preserve their allegiance to the Crown of Spain by
making, before a court of record, within a year from the date of the exchange of
ratifications of this treaty, a declaration of their decision to preserve such allegiance;
in default of which declaration they shall be held to have renounced it and to have
adopted the nationality of the territory in which they reside.
Thus
"The civil rights and political status of the native inhabitants of the territories hereby
ceded to the United States shall be determined by the Congress."
[22]

Upon the ratification of the treaty, and pending legislation by the United States
Congress on the subject, the native inhabitants of the Philippines ceased to be Spanish
subjects. Although they did not become American citizens, they, however, also ceased
to be "aliens" under American laws and were thus issued passports describing them to
be citizens of the Philippines entitled to the protection of the United States.
The term "citizens of the Philippine Islands" appeared for the first time in the
Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of 1902,
the first comprehensive legislation of the Congress of the United States on the
Philippines -

".... that all inhabitants of the Philippine Islands continuing to reside therein, who
were Spanish subjects on the 11th day of April, 1891, and then resided in said Islands,
and their children born subsequent thereto, shall be deemed and held to be citizens of

the Philippine Islands and as such entitled to the protection of the United States,
except such as shall have elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between the United States and
Spain, signed at Paris, December tenth eighteen hundred and ninety eight."
[23]

Under the organic act, a citizen of the Philippines was one who was an inhabitant of the
Philippines, and a Spanish subject on the 11th day of April 1899. The term inhabitant
was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native of
Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11
April 1899.
[24]

Controversy arose on to the status of children born in the Philippines from 11 April
1899 to 01 July 1902, during which period no citizenship law was extant in the
Philippines. Weight was given to the view, articulated in jurisprudential writing at the
time, that the common law principle of jus soli, otherwise also known as the principle of
territoriality, operative in the United States and England, governed those born in the
Philippine Archipelago within that period. More about this later.
[25]

In 23 March 1912, the Congress of the United States made the following
amendment to the Philippine Bill of 1902 -

"Provided, That the Philippine Legislature is hereby authorized to provide by law for
the acquisition of Philippine citizenship by those natives of the Philippine Islands who
do not come within the foregoing provisions, the natives of other insular possession of
the United States, and such other persons residing in the Philippine Islands who would
become citizens of the United States, under the laws of the United States, if residing
therein."
[26]

With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens"
had for the first time crystallized. The word "Filipino" was used by William H. Taft, the
first Civil Governor General in the Philippines when he initially made mention of it in his
slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also
known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902,
as so amended by the Act of Congress in 1912 -

That all inhabitants of the Philippine Islands who were Spanish subjects on the
eleventh day of April, eighteen hundred and ninety-nine, and then resided in said
Islands, and their children born subsequently thereto, shall be deemed and held to
be citizens of the Philippine Islands, except such as shall have elected to preserve
their allegiance to the Crown of Spain in accordance with the provisions of the treaty
of peace between the United States and Spain, signed at Paris December tenth,
eighteen hundred and ninety-eight and except such others as have since become
citizens of some other country; Provided, That the Philippine Legislature, herein
provided for, is hereby authorized to provide for the acquisition of Philippine
citizenship by those natives of the Philippine Islands who do not come within the

foregoing provisions, the natives of the insular possessions of the United States, and
such other persons residing in the Philippine Islands who are citizens of the United
States, or who could become citizens of the United States under the laws of the United
States, if residing therein."
Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be
a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April
1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of
some other country.
While there was, at one brief time, divergent views on whether or not jus soli was a
mode of acquiring citizenship, the 1935 Constitution brought to an end to any such link
with common law, by adopting, once and for all, jus sanguinis or blood relationship as
being the basis of Filipino citizenship -

Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines
(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution
(2) Those born in the Philippines Islands of foreign parents who, before the adoption
of this Constitution, had been elected to public office in the Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and upon reaching the age of
majority, elect Philippine citizenship.
(5) Those who are naturalized in accordance with law.
Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil
law provisions at the time, which provided that women would automatically lose their
Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory
situations that effectively incapacitated the women from transmitting their Filipino
citizenship to their legitimate children and required illegitimate children of Filipino
mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to
correct this anomaly, as well as fully cognizant of the newly found status of Filipino
women as equals to men, the framers of the 1973 Constitution crafted the provisions of
the new Constitution on citizenship to reflect such concerns -

Section 1, Article III, 1973 Constitution - The following are citizens of the
Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.
(2) Those whose fathers or mothers are citizens of the Philippines.
(3) Those who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five.
(4) Those who are naturalized in accordance with law.
For good measure, Section 2 of the same article also further provided that

"A female citizen of the Philippines who marries an alien retains her Philippine
citizenship, unless by her act or omission she is deemed, under the law to have
renounced her citizenship."
The 1987 Constitution generally adopted the provisions of the 1973 Constitution,
except for subsection (3) thereof that aimed to correct the irregular situation generated
by the questionable proviso in the 1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:

The following are citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.
(2) Those whose fathers or mothers are citizens of the Philippines.
(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
(4) Those who are naturalized in accordance with law.
The Case Of FPJ
Section 2, Article VII, of the 1987 Constitution expresses:

"No person may be elected President unless he is a natural-born citizen of the

Philippines, a registered voter, able to read and write, at least forty years of age on the
day of the election, and a resident of the Philippines for at least ten years immediately
preceding such election."

The term "natural-born citizens," is defined to include "those who are citizens of the
Philippines from birth without having to perform any act to acquire or perfect their
Philippine citizenship."
[27]

The date, month and year of birth of FPJ appeared to be 20 August 1939 during the
regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship
- naturalization, jus soli, res judicata and jus sanguinis had been in vogue. Only
two, i.e., jus soli and jus sanguinis, could qualify a person to being a natural-born citizen
of the Philippines.Jus soli, per Roa vs. Collector of Customs (1912), did not last
long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong
vs. Secretary of Labor (1947), jus sanguinis or blood relationship would now become
the primary basis of citizenship by birth.
[28]

[29]

[30]

Documentary evidence adduced by petitioner would tend to indicate that the earliest
established direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married
to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo Pou had
not been presented in evidence, his death certificate, however, identified him to be a
Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of his death
on 11 September 1954. The certificate of birth of the father of FPJ, Allan F. Poe, showed
that he was born on 17 May 1915 to an Espaol father, Lorenzo Pou, and a mestiza
Espaol mother, Marta Reyes. Introduced by petitioner was an uncertified copy of a
supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05
July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date
of their marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was
stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to
be twenty-two years old, unmarried, and an American citizen. The birth certificate of
FPJ, would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino,
twenty-four years old, married to Bessie Kelly, an American citizen, twenty-one years
old and married.
Considering the reservations made by the parties on the veracity of some of the
entries on the birth certificate of respondent and the marriage certificate of his parents,
the only conclusions that could be drawn with some degree of certainty from the
documents would be that -

1. The parents of FPJ were Allan F. Poe and Bessie Kelley;

2. FPJ was born to them on 20 August 1939;
3. Allan F. Poe and Bessie Kelley were married to each other on 16
September, 1940;
4. The father of Allan F. Poe was Lorenzo Poe; and
5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years
old.

Would the above facts be sufficient or insufficient to establish the fact that FPJ is a
natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley,
the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of
public record in the custody of a public officer. The documents have been submitted in
evidence by both contending parties during the proceedings before the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for
respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as
Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by
respondent as his Exhibit "5." While the last two documents were submitted in evidence
for respondent, the admissibility thereof, particularly in reference to the facts which they
purported to show, i.e., the marriage certificate in relation to the date of marriage of
Allan F. Poe to Bessie Kelley and the death certificate relative to the death of Lorenzo
Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner,
who had utilized those material statements in his argument. All three documents were
certified true copies of the originals.

Section 3, Rule 130, Rules of Court states that Original document must be produced; exceptions. - When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original
document itself, except in the following cases:
xxxxxxxxx
(d) When the original is a public record in the custody of a public office or is recorded
in a public office.
Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of
Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima
facie proof of their contents. Section 44, Rule 130, of the Rules of Court provides:

Entries in official records. Entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts therein stated.
The trustworthiness of public documents and the value given to the entries made
therein could be grounded on 1) the sense of official duty in the preparation of the
statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the
routine and disinterested origin of most such statements, and 4) the publicity of record
which makes more likely the prior exposure of such errors as might have occurred.
[31]

The death certificate of Lorenzo Pou would indicate that he died on 11 September
1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that
Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a
colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines

during the crucial period of from 1898 to 1902 considering that there was no existing
record about such fact in the Records Management and Archives Office. Petitioner,
however, likewise failed to show that Lorenzo Pou was at any other place during the
same period. In his death certificate, the residence of Lorenzo Pou was stated to be
San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be
sound to conclude, or at least to presume, that the place of residence of a person at the
time of his death was also his residence before death. It would be extremely doubtful if
the Records Management and Archives Office would have had complete records of all
residents of the Philippines from 1898 to 1902.
Proof of Paternity and Filiation
Under Civil Law.
Petitioner submits, in any case, that in establishing filiation (relationship or civil
status of the child to the father [or mother]) or paternity (relationship or civil status of the
father to the child) of an illegitimate child, FPJ evidently being an illegitimate son
according to petitioner, the mandatory rules under civil law must be used.
Under the Civil Code of Spain, which was in force in the Philippines from 08
December 1889 up until the day prior to 30 August 1950 when the Civil Code of the
Philippines took effect, acknowledgment was required to establish filiation or
paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or
compulsory acknowledgment was possible only if done during the lifetime of the
putative parent; voluntary acknowledgment could only be had in a record of birth, a will,
or a public document. Complementary to the new code was Act No. 3753 or the Civil
Registry Law expressing in Section 5 thereof, that [32]

In case of an illegitimate child, the birth certificate shall be signed and sworn to
jointly by the parents of the infant or only by the mother if the father refuses. In the
latter case, it shall not be permissible to state or reveal in the document the name of
the father who refuses to acknowledge the child, or to give therein any information by
which such father could be identified.
In order that the birth certificate could then be utilized to prove voluntary
acknowledgment of filiation or paternity, the certificate was required to be signed or
sworn to by the father. The failure of such requirement rendered the same useless as
being an authoritative document of recognition. In Mendoza vs. Mella, the Court ruled
[33]

[34]

"Since Rodolfo was born in 1935, after the registry law was enacted, the question here
really is whether or not his birth certificate (Exhibit 1), which is merely a certified
copy of the registry record, may be relied upon as sufficient proof of his having been
voluntarily recognized. No such reliance, in our judgment, may be placed upon
it. While it contains the names of both parents, there is no showing that they signed

the original, let alone swore to its contents as required in Section 5 of Act No.
3753. For all that might have happened, it was not even they or either of them who
furnished the data to be entered in the civil register. Petitioners say that in any event
the birth certificate is in the nature of a public document wherein voluntary
recognition of a natural child may also be made, according to the same Article 131.
True enough, but in such a case, there must be a clear statement in the document that
the parent recognizes the child as his or her own."
In the birth certificate of respondent FPJ, presented by both parties, nowhere in the
document was the signature of Allan F. Poe found. There being no will apparently
executed, or at least shown to have been executed, by decedent Allan F. Poe, the only
other proof of voluntary recognition remained to be "some other public
document." In Pareja vs. Pareja, this Court defined what could constitute such a
document as proof of voluntary acknowledgment:
[35]

"Under the Spanish Civil Code there are two classes of public documents,
those executed by private individuals which must be authenticated by notaries, and
those issued by competent public officials by reason of their office. The public
document pointed out in Article 131 as one of the means by which recognition may be
made belongs to the first class."
Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate
children into voluntary, legal or compulsory. Voluntary recognition was required to be
expressedly made in a record of birth, a will, a statement before a court of record or in
any authentic writing. Legal acknowledgment took place in favor of full blood brothers
and sisters of an illegitimate child who was recognized or judicially declared as
natural. Compulsory acknowledgment could be demanded generally in cases when the
child had in his favor any evidence to prove filiation. Unlike an action to claim legitimacy
which would last during the lifetime of the child, and might pass exceptionally to the
heirs of the child, an action to claim acknowledgment, however, could only be brought
during the lifetime of the presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic
writing," so as to be an authentic writing for purposes of voluntary recognition, simply as
being a genuine or indubitable writing of the father. The term would include a public
instrument (one duly acknowledged before a notary public or other competent official) or
a private writing admitted by the father to be his.
The Family Code has further liberalized the rules; Article 172, Article 173, and
Article 175 provide:

Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 173. The action to claim legitimacy may be brought by the child during his or her
lifetime and shall be transmitted to the heirs should the child die during minority or in
a state of insanity. In these cases, the heirs shall have a period of five years within
which to institute the action.
The action already commenced by the child shall survive notwithstanding the death of
either or both of the parties.
x x x x x x x x x.
Art. 175. Illegitimate children may establish their illegitimate filiation in the same
way and on the same, evidence as legitimate children.
The action must be brought within the same period specified in Article 173, except
when the action is based on the second paragraph of Article 172, in which case the
action may be brought during the lifetime of the alleged parent.
The provisions of the Family Code are retroactively applied; Article 256 of the code
reads:

"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws.
Thus, in Vda. de Sy-Quia vs. Court of Appeals, the Court has ruled:
[36]

"We hold that whether Jose was a voluntarily recognized natural child should be
decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that
Code provides that 'the voluntary recognition of a natural child shall take place
according to this Code, even if the child was born before the effectivity of this body of
laws' or before August 30, 1950. Hence, Article 278 may be given retroactive effect."
It should be apparent that the growing trend to liberalize the acknowledgment or
recognition of illegitimate children is an attempt to break away from the traditional idea
of keeping well apart legitimate and non-legitimate relationships within the family in

favor of the greater interest and welfare of the child. The provisions are intended to
merely govern the private and personal affairs of the family. There is little, if any, to
indicate that the legitimate or illegitimate civil status of the individual would also affect
his political rights or, in general, his relationship to the State. While, indeed, provisions
on "citizenship" could be found in the Civil Code, such provisions must be taken in the
context of private relations, the domain of civil law; particularly -

"Civil Law is that branch of law which has for its double purpose the organization of
the family and the regulation of property. It has thus [been] defined as the mass of
precepts which determine and regulate the relations of assistance, authority and
obedience among members of a family, and those which exist among members of a
society for the protection of private interests."
[37]

In Yaez de Barnuevo vs. Fuster, the Court has held:

[38]

"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to
family rights and duties, or to the status, condition and legal capacity of persons,
govern Spaniards although they reside in a foreign country; that, in consequence, 'all
questions of a civil nature, such as those dealing with the validity or nullity of the
matrimonial bond, the domicile of the husband and wife, their support, as between
them, the separation of their properties, the rules governing property, marital authority,
division of conjugal property, the classification of their property, legal causes for
divorce, the extent of the latter, the authority to decree it, and, in general, the civil
effects of marriage and divorce upon the persons and properties of the spouses, are
questions that are governed exclusively by the national law of the husband and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in
Article 15 of the Civil Code, stating that -

"Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad" that explains the need to incorporate in the code a reiteration of the Constitutional
provisions on citizenship. Similarly, citizenship is significant in civil relationships found in
different parts of the Civil Code, such as on successional rights and family relations.
In adoption, for instance, an adopted child would be considered the child of his
adoptive parents and accorded the same rights as their legitimate child but such legal
fiction extended only to define his rights under civil law and not his political status.
[39]

[40]

[41]

Civil law provisions point to an obvious bias against illegitimacy. This discriminatory
attitude may be traced to the Spanish family and property laws, which, while defining
proprietary and successional rights of members of the family, provided distinctions in the
rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the

distribution and inheritance of titles and wealth were strictly according to bloodlines and
the concern to keep these bloodlines uncontaminated by foreign blood was paramount.
These distinctions between legitimacy and illegitimacy were codified in the Spanish
Civil Code, and the invidious discrimination survived when the Spanish Civil Code
became the primary source of our own Civil Code. Such distinction, however, remains
and should remain only in the sphere of civil law and not unduly impede or impinge on
the domain of political law.
The proof of filiation or paternity for purposes of determining his citizenship status
should thus be deemed independent from and not inextricably tied up with that
prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of
filiation or paternity, although good law, do not have preclusive effects on matters alien
to personal and family relations. The ordinary rules on evidence could well and should
govern. For instance, the matter about pedigree is not necessarily precluded from being
applicable by the Civil Code or Family Code provisions.
Section 39, Rule 130, of the Rules of Court provides -

Act or Declaration about pedigree. The act or declaration of a person deceased, or

unable to testify, in respect to the pedigree of another person related to him by birth or
marriage, may be received in evidence where it occurred before the controversy, and
the relationship between the two persons is shown by evidence other than such act or
declaration. The word `pedigree includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these facts occurred, and the
names of the relatives. It embraces also facts of family history intimately connected
with pedigree.
For the above rule to apply, it would be necessary that (a) the declarant is already
dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant
must be a relative of the person whose pedigree is in question, (d) declaration must be
made before the controversy has occurred, and (e) the relationship between the
declarant and the person whose pedigree is in question must be shown by evidence
other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of
Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to
prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ,
i.e, living together with Bessie Kelley and his children (including respondent FPJ) in one
house, and as one family -

"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in
Stockton, California, U.S.A., after being sworn in accordance with law do hereby
declare that:
1. I am the sister of the late Bessie Kelley Poe.

2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more
popularly known in the Philippines as `Fernando Poe, Jr., or `FPJ.
4. Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's Hospital,
Magdalena Street, Manila.
xxxxxxxxx
7. Fernando Poe Sr., and my sister Bessie, met and became engaged while
they were students at the University of the Philippines in 1936. I was
also introduced to Fernando Poe, Sr., by my sister that same year.
8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.
9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth,
Ronald, Allan and Fernando II, and myself lived together with our
mother at our family's house on Dakota St. (now Jorge Bocobo St.),
Malate until the liberation of Manila in 1945, except for some months
between 1943-1944.
10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more
children after Ronald Allan Poe.
xxxxxxxxx
18. I am executing this Declaration to attest to the fact that my nephew,
Ronald Allan Poe is a natural born Filipino, and that he is the legitimate
child of Fernando Poe, Sr.
Done in City of Stockton, California, U.S.A., this 12th day of January 2004.
Ruby Kelley Mangahas
Declarant
DNA Testing
In case proof of filiation or paternity would be unlikely to satisfactorily establish or
would be difficult to obtain, DNA testing, which examines genetic codes obtained from
body cells of the illegitimate child and any physical residue of the long dead parent

could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs.
Court of Appeals, this Court has acknowledged the strong weight of DNA testing [42]

"Parentage will still be resolved using conventional methods unless we adopt the
modern and scientific ways available. Fortunately, we have now the facility and
expertise in using DNA test for identification and parentage testing. The University of
the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis
Laboratory has now the capability to conduct DNA typing using short tandem repeat
(STR) analysis. The analysis is based on the fact that the DNA of a child/person has
two (2) copies, one copy from the mother and the other from the father. The DNA
from the mother, the alleged father and the child are analyzed to establish
parentage. Of course, being a novel scientific technique, the use of DNA test as
evidence is still open to challenge. Eventually, as the appropriate case comes, courts
should not hesitate to rule on the admissibility of DNA evidence. For it was said, that
courts should apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress."
Petitioners Argument For
Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not
have transmitted his citizenship to respondent FPJ, the latter being an illegitimate
child. According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July
5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent
marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate child. The
veracity of the supposed certificate of marriage between Allan F. Poe and Paulita
Gomez could be most doubtful at best. But the documentary evidence introduced by no
less than respondent himself, consisting of a birth certificate of respondent and a
marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a
Filipino father and an American mother who were married to each other a year later, or
on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate
child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship
of his mother, Bessie Kelley, an American citizen, basing his stand on the ruling of this
Court in Morano vs. Vivo, citing Chiongbian vs. de Leon and Serra vs. Republic.
[43]

[44]

[45]

On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ,
is most convincing; he states -

"We must analyze these cases and ask what the lis mota was in each of them. If the
pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement
would be a decision constituting doctrine under the rule of stare decisis. But if the
pronouncement was irrelevant to the lis mota, the pronouncement would not be a

decision but a mere obiter dictum which did not establish doctrine. I therefore invite
the Court to look closely into these cases.
First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino
father. It was about a stepson of a Filipino, a stepson who was the child of a Chinese
mother and a Chinese father. The issue was whether the stepson followed the
naturalization of the stepfather. Nothing about jus sanguinis there. The stepson did not
have the blood of the naturalized stepfather.
Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a
Filipino father. It was about a legitimate son of a father who had become Filipino by
election to public office before the 1935 Constitution pursuant to Article IV, Section
1(2) of the 1935 Constitution. No one was illegitimate here.
Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino
father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The
issue was whether one who was already a Filipino because of his mother who still
needed to be naturalized. There is nothing there about invidious jus sanguinis.
Finally, Paa vs. Chan. This is a more complicated case. The case was about the
citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed
that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino
mother. Quintin therefore argued that he got his citizenship from Leoncio, his
father. But the Supreme Court said that there was no valid proof that Leoncio was in
fact the son of a Filipina mother. The Court therefore concluded that Leoncio was not
Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin therefore
was not only not a natural-born Filipino but was not even a Filipino.
[46]

The Court should have stopped there. But instead it followed with an obiter
dictum. The Court said obiter that even if Leoncio, Quintin's father, were Filipino,
Quintin would not be Filipino because Quintin was illegitimate. This statement about
Quintin, based on a contrary to fact assumption, was absolutely unnecessary for the
case. x x x It was obiter dictum, pure and simple, simply repeating the obiter dictum
in Morano vs. Vivo.
xxxxxxxxx
"Aside from the fact that such a pronouncement would have no textual foundation in
the Constitution, it would also violate the equal protection clause of the Constitution
not once but twice. First, it would make an illegitimate distinction between a
legitimate child and an illegitimate child, and second, it would make an illegitimate

distinction between the illegitimate child of a Filipino father and the illegitimate child
of a Filipino mother.
The doctrine on constitutionally allowable distinctions was established long ago by
People vs. Cayat. I would grant that the distinction between legitimate children and
illegitimate children rests on real differences. x x x But real differences alone do not
justify invidious distinction. Real differences may justify distinction for one purpose
but not for another purpose.
[47]

x x x What is the relevance of legitimacy or illegitimacy to elective public

service? What possible state interest can there be for disqualifying an illegitimate
child from becoming a public officer. It was not the fault of the child that his parents
had illicit liaison. Why deprive the child of the fullness of political rights for no fault
of his own? To disqualify an illegitimate child from holding an important public office
is to punish him for the indiscretion of his parents. There is neither justice nor
rationality in that. And if there is neither justice nor rationality in the distinction, then
the distinction transgresses the equal protection clause and must be reprobated.
The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this
Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have
expressed similar views.The thesis of petitioner, unfortunately hinging solely on
pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the citizenship of
its mother, it did so for the benefit the child. It was to ensure a Filipino nationality for the
illegitimate child of an alien father in line with the assumption that the mother had
custody, would exercise parental authority and had the duty to support her illegitimate
child. It was to help the child, not to prejudice or discriminate against him.
The fact of the matter perhaps the most significant consideration is that the 1935
Constitution, the fundamental law prevailing on the day, month and year of birth of
respondent FPJ, can never be more explicit than it is. Providing neither conditions nor
distinctions, the Constitution states that among the citizens of the Philippines are those
whose fathers are citizens of the Philippines. There utterly is no cogent justification to
prescribe conditions or distinctions where there clearly are none provided.
In Sum
(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction
over the petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the
Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the
COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the
petition in SPA No. 04-003 which has prayed for the disqualification of respondent FPJ
from running for the position of President in the 10 th May 2004 national elections on the

contention that FPJ has committed material representation in his certificate of candidacy
by representing himself to be a natural-born citizen of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in
G. R. No. 161434 and No. 161634 both having been directly elevated to this Court in
the latters capacity as the only tribunal to resolve a presidential and vice-presidential
election contest under the Constitution. Evidently, the primary jurisdiction of the Court
can directly be invoked only after, not before, the elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been
committed by the COMELEC, it is necessary to take on the matter of whether or not
respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the
father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the
affirmative, whether or not the alleged illegitimacy of respondent prevents him from
taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino
citizenship of Lorenzo Pou could only be drawn from the presumption that having died
in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870,
when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his
place of residence upon his death in 1954, in the absence of any other evidence, could
have well been his place of residence before death, such that Lorenzo Pou would have
benefited from the en masse Filipinization that the Philippine Bill had effected in
1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son,
Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which regime
respondent FPJ has seen first light, confers citizenship to all persons whose fathers are
Filipino citizens regardless of whether such children are legitimate or illegitimate.
(4) But while the totality of the evidence may not establish conclusively that
respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still
would preponderate in his favor enough to hold that he cannot be held guilty of having
made a material misrepresentation in his certificate of candidacy in violation of Section
78, in relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed
to substantiate his case before the Court, notwithstanding the ample opportunity given
to the parties to present their position and evidence, and to prove whether or not there
has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs.
COMELEC, must not only be material, but also deliberate and willful.
[48]

WHEREFORE, the Court RESOLVES to DISMISS

1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr.,
Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando
Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo
Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.,
Respondent," for want of jurisdiction.
2. G. R. No. 161824, entitled Victorino X. Fornier, Petitioner, versus Hon.
Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe,
Jr., for failure to show grave abuse of discretion on the part of respondent Commission
on Elections in dismissing the petition in SPA No. 04-003.
No Costs.

SO ORDERED.
Davide, Jr., C.J., see separate opinion, concurring.
Puno, J., on leave but was allowed to vote; see separate opinion.
Panganiban, J., on official leave; allowed to vote but did not send his vote on the
matter.
Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should have
been remanded.
Ynares-Santiago, J., concurs and also with J. Punos separate opinion.
Sandoval-Gutierrez, J., concurs, please see separate opinion.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., concurs, please see separate opinion.
Corona, J., joins the dissenting opinion of Justice Morales.
Carpio-Morales, J., see dissenting opinion.
Callejo, Sr., J., please see concurring opinion.
Azcuna, J., concurs in a separate opinion.
Tinga, J., dissents per separate opinion.

[1]

Tan Chong vs. The Secretary of Labor, 45 O.G. No. 31, 1269.

[2]

Sec. 2. Mode of review. A judgment or final order or resolution of the Commission on Elections and the
Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari
under Rule 65, except as hereinafter provided. (Rule 64)

[3]

Sec. 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn
certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (Rule
65)
[4]

17 SCRA 761.

[5]

See Rule 66, Revised Rules of Civil Procedure.

[6]

The Politics of Aristotle, edited and translated by Ernest Barker, Oxford University Press, London, 1946.
at p. 93.

[7]

Id., at 95.

[8]

Introduction, The Conditions of Citizenship, edited by Bart Van Steenbergen, Sage Publications,
London, Thousand Oaks, New Delhi (1994).

[9]

Ibid.

[10]

Ibid.

[11]

Ibid.

[12]

Ibid.

[13]

Under the codified Novisima Recopilacion promulgated in Spain in 1805, the following were considered
denizens (vecinos) " all foreigners who obtained the privilege of naturalization, those who were
born in these kingdoms, those who residing therein may be converted to the holy Catholic faith;
those, being self-supporting, established their domicile therein; and in the case of a foreign
woman who married a native man, she thereby becomes subject to the same laws and acquires
the same domicile as her husband; those who establish themselves in the country by acquiring
real property; those who have trade or profession and go there to practice the same; also those
who practice some mechanical trade therein or keep a retail store;....those who reside for a
period of ten years in a home of his own; and also those foreigners who, in accordance with the
common law, royal orders and other laws of the kingdoms, may have become naturalized or
acquired residence therein. (Leon T. Garcia, The Problems of Citizenship in the Philippines, Rex
Bookstore, 1949, at p. 4)

[14]

Garcia, supra., at p. 3.

[15]

Justices Malcolm, Recto and Florentino Torres believed that the law was effective in the
Philippines. Those who entertained the contrary view were Justices Imperial and Villareal.
(Garcia, supra., at 4.).

[16]

Garcia, supra., pp. 5-6.

[17]

Under the Royal Decree of August 23, 1868, the following were considered foreigners --- (1) The
legitimate and recognized natural children of a father who belongs to another independent state,
and the unrecognized and natural and other illegitimate children of a mother belonging to another
State born outside of the Spanish dominions, (2) The children specified in the preceding
paragraph, born in the Spanish dominions or on board Spanish vessels on the high seas if they
do not, on attaining the age of majority fixed in the laws of the Kingdom, elect Spanish nationality,
(3) Those being Spaniards, acquire another nationality, as well by renouncing the first as by
accepting employment, from another government without the authority of the sovereign and (4)
The woman who contracts marriage with a subject of another State. (Garcia, supra., pp. 6-7)

[18]

Under the law, the following were foreigners (a) All persons born of foreign parents outside of the
Spanish territory; (b) Those born outside of the Spanish territory of foreign fathers and Spanish
mothers while they do not claim Spanish nationality, (3) Those born in Spanish territory of foreign
parents or foreign fathers and Spanish mothers while they do not make that claim, (4) Spaniards
who may have lost their nationality, (5) Those born outside of the Spanish territory of parents who
may have lost their Spanish nationality; and (6), the Spanish woman married to a
foreigner. (Garcia, supra., p. 7)

[19]

Velayo, infra., p. 11.

[20]

Article 17, The Civil Code of Spain.

[21]

Garcia, supra, pp. 6-7.

[22]

Ramon M. Velayo, Philippine Citizenship And Naturalization, Central Book Supply, Manila (1965), pp.
22-23.

[23]

Ibid., p. 30.

[24]

Garcia, supra, at pp. 31-32.

[25]

Garcia, supra, pp. 23-26.

[26]

Velayo, supra, p. 31

[27]

Section 2, Article IV, 1987 Constitution.

[28]

Per amicus curiae Joaquin G. Bernas, SJ.

[29]

23 Phil 315 (1912).

[30]

Supra., which held that jus soli was never applied in the Philippines.

[31]

Antillon vs. Barcelon, 37 Phil 148.

[32]

Article 131 Old Civil Code.

[33]

Dayrit vs. Piccio, 92 Phil 729.

[34]

17 SCRA 788.

[35]

95 Phil 167.

[36]

125 SCRA 835.

[37]

Vicente J. Fransisco, Civil Code of the Philippines, Bk I, 1953 at p. 5

[38]

29 Phil 606.

[39]

Article 16. Real property as well as personal property is subject to the law of the country where it is
situated.

However, intestate and testamentary successions, both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country wherein said property
may be found.
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed
by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities established by Philippine laws shall be observed
in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have for their object public
order, public policy and good customs, shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country.
Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms
established by the law of the country in which he may be. Such will may be probated in the
Philippines.
Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this Code prescribes.
Article 817. A will made in the Philippines by a citizen or subject of another country, which is executed in
accordance with the law of the country of which he is a citizen or subject, and which might be
proved and allowed by the law of his own country, shall have the same effect as if executed
according to the laws of the Philippines.
Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not
be valid in the Philippines, even though authorized by the laws of the country where they may
have been executed.
Article 1039. Capacity to succeed is governed by the law of the nation of the decedent.
[40]

Article 10. Marriages between Filipino citizens abroad may be solemnized by a consul general, consul
or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the
duties of the local civil registrar and of the solemnizing officer with regard to the celebration of
marriage shall be performed by said consular official.

Article 21. When either or both of the contracting parties are citizens of a foreign country, it shall be
necessary for them before a marriage license can be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein
required, submit an affidavit stating the circumstances showing such capacity to contract
marriage.
Article 26. x x x
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine law.
Article 80. In the absence of a contrary stipulation in the marriage settlements, the property relations of
the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the
marriage and their residence. This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and
executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property
situated in a foreign country whose laws require different formalities for their extrinsic validity.
[41]

See Ching Leng vs. Galang, L-11931, October 1958, unreported.

[42]

354 SCRA 17.

[43]

20 SCRA 562, Paa vs. Chan 21 SCRA 753.

[44]

82 Phil. 771.

[45]

91 Phil. 914, unreported.

[46]

21 SCRA 753.

[47]

68 Phil 12.

[48]

248 SCRA 300 (1995)

PRESIDENTIAL ELECTORAL TRIBUNAL

[P.E.T. CASE No. 002. March 29, 2005]

RONALD ALLAN POE a.k.a. FERNANDO POE, JR., protestant,

vs. GLORIA MACAPAGAL-ARROYO, protestee.
RESOLUTION
QUISUMBING, J.:

The moving finger writes, says Omar Khayyam in the Rubayyat, and having writ,
moves on. Nor all your piety nor wit, adds the poet, could lure it back to cancel half a
line; nor all your tears wash out a word of it.
Such is my view on the providential case for our consideration.
Before this Electoral Tribunal, composed pursuant to the Constitution, by all the
fifteen members of the Supreme Court, is a matter of first impression. We are tasked
not only to determine, as originally prayed for, who between the Protestant and the
Protestee was the true winner in the May 10, 2004 Presidential Elections, but also to
decide now whether the Protestants widow (Mrs. Jesusa Sonora Poe, popularly known
as the cinema star Susan Roces) could intervene and/or substitute for the deceased
party, assuming arguendo that the protest could survive his death.
If one were guided by folk wisdom expressed in the adage that in a democracy, the
voice of the people is the voice of God, then it would appear our task had been made
easy by fateful events. Past midnight, in the early hours of June 24, 2004, the Congress
as the representatives of the sovereign people and acting as the National Board of
Canvassers, in a near-unanimous roll-call vote, proclaimed Mrs. Gloria Macapagal
Arroyo (GMA) the duly elected President of the Philippines. She obtained 12,905,808
votes, as against 11,782,232 votes for the second-placer, the movie actor Fernando
Poe, Jr. (FPJ). She took her Oath of Office before the Chief Justice of the Supreme
Court on June 30, 2004.
[1]

Refusing to concede defeat, the second-placer in the elections, Mr. FPJ, filed
seasonably an election protest before this Electoral Tribunal on July 23, 2004. Mrs.
GMA, through counsel, filed her Answer with Counter Protest on August 5, 2004. As
counsels for the parties exchanged lively motions to rush the presentation of their
respective positions on the controversy, an act of God intervened. On December 14,
2004, the Protestant died in the course of his medical treatment at St. Lukes Hospital.
The medical certificate, filed by counsel as part of the Notice of Death of the Protestant,
showed that he died of cardio-pulmonary arrest, secondary to cerebral infarction.
However, neither the Protestees proclamation by Congress nor the death of her
main rival as a fortuitous intervening event, appears to abate the present controversy in
the public arena. Instead, notice may be taken of periodic mass actions,
demonstrations, and rallies raising an outcry for this Tribunal to decide the electoral
protest of Mr. FPJ against Mrs. GMA once and for all. The oracular function of this
Tribunal, it would appear, needs to be fully exercised to make manifest here and abroad
who is the duly elected leader of the Filipino nation. All these, despite the fact that the
submissions by the parties on their respective sides in the protest and the counterprotest are thus far, far from completed.
Needless to stress, this Tribunal cannot shirk its constitutional duty. Yet, neither
could it go beyond its mandate under the Constitution and the law. Further, this Tribunal
is guided by its Rules, as well as the Rules of Court in a suppletory manner.
Considering the transcendental importance of the electoral contest involving the
Presidency, a rush to judgment is simply out of the question. Yet decide the matter we

must, without further delay, to prevent popular unrest and avoid further destabilization of
government at the highest level.
Together with the formal Notice of the Death of Protestant, his counsel has
submitted to the Tribunal, dated January 10, 2005, a MANIFESTATION with URGENT
PETITION/MOTION to INTERVENE AS A SUBSTITUTE FOR DECEASED
PROTESTANT FPJ, by the widow, Mrs. Jesusa Sonora Poe, who signed the verification
and certification therein.
As movant/intervenor, Mrs. FPJ claims that because of the untimely demise of her
husband and in representation not only of her deceased husband but more so because
of the paramount interest of the Filipino people, there is an urgent need for her to
continue and substitute for her late husband in the election protest initiated by him to
ascertain the true and genuine will of the electorate in the 2004 elections. In support of
her assertion, she cites De Castro v. Commission on Elections, and Lomugdang v.
Javier, to the effect that the death of the protestant does not constitute a ground for the
dismissal of the contest nor oust the trial court of the jurisdiction to decide the election
contest. She stresses nevertheless that even if the instant protest case succeeds, she is
cognizant that as a mere substitute she cannot succeed, assume or be entitled to said
elective office, and her utmost concern is not personal but one that involves the publics
interest. She prays, however, that if subsequently determined that the protestee Gloria
Macapagal-Arroyo did not get the highest number of votes for president, for protestee to
be disallowed from remaining in office, and thus prevented from exercising the powers,
duties, responsibilities and prerogatives reserved only to the duly-elected president or
her legitimate successor.
[2]

[3]

In her Comment, the Protestee, Mrs. GMA, relying on Vda. de De Mesa v.

Mencias and subsequent cases including analogous cases decided by the House of
Representatives Electoral Tribunal (HRET), asserts that the widow of a deceased
candidate is not the proper party to replace the deceased protestant since a public
office is personal and not a property that passes on to the heirs. She points out that the
widow has no legal right to substitute for her husband in an election protest, since no
such right survives the husband, considering that the right to file an election protest is
personal and non-transmissible.
[4]

Protestee also contends Mrs. FPJ cannot substitute for her deceased husband
because under the Rules of the Presidential Electoral Tribunal, only the registered
candidates who obtained the 2nd and 3rd highest votes for the presidency may contest
the election of the president and patently, Mrs. FPJ did not receive the 2 nd and
3rd highest votes for she was not even a candidate for the presidency in the election that
is being contested.
Citing pertinent PET Rules, protestee also stresses that this Tribunal has no
jurisdiction over actions of surviving spouses to ascertain the vote of the electorate as
the Tribunal has jurisdiction only over election protests and quo warranto cases.
According to protestee, movant/intervenor Mrs. FPJ cannot use the public interest
to justify her request to be substituted for her husband. Public interest, i.e. the need to
dispel uncertainty over the real choice of the electorate, is applicable only in election

contests, not in an action to merely ascertain the true and genuine will of the people.
She asserts that the only case herein cognizable by this Tribunal is an election protest
involving a protestant and a protestee, not between the electorate and the protestee.
Citing analogous HRET cases, protestee avers that in a case where the protestant, the
primary adversary in an election protest case dies, the public interest in said protest
dies with him.
Protestee also contends that in the adversarial nature of a protest case where one
of the parties dies, a correct ruling cannot be had because the dead protestant could no
longer refute his adversarys allegations because death has rendered him hors de
combat.
Further citing Defensor-Santiago v. Ramos, protestee points out that this Tribunal,
nonetheless, confirmed its power to dismiss an electoral case on technical grounds.
She adds that if the Tribunal can do so on a technicality, all the more it could for a
stronger reason, that of protestants death.
[5]

In her Reply, movant/intervenor argues that reference of protestee to the HRET

case of Abadilla v. Ablan, was erroneous inasmuch as said case was a congressional
protest and the controlling case is De Castro. She likewise contends that protestant
failed to distinguish between a right to an office which protestant concedes is personal
and non-transmissible vis--vis the right to pursue the process which is not personal but
imbued with public interest. She likewise stresses that the death of the protestant
abolished the personal/private character of the protest, as protestants right to assume if
he prevails, necessarily disappears, and the same cannot be transferred to anyone
else, protestants widow included. She insists, however, that the public interest remains.
Further, movant/intervenor posits that the protest having been commenced cannot be
abated by the death of the protestant and the only real issue is the determination of the
proper substitute. She avers that the Tribunals rule is clear on who can commence and
initiate a protest compared to the persons who can initiate a quo warranto. She admits
that in the former, only the second and third placers in the presidential election are
authorized to commence the contest, while in the latter, any voter may initiate the
petition. She contends that with no personal interest involved, any registered voter can
continue the duly-commenced protest as the real-party-in-interest which is analogous to
a quo warranto. She contradicts protestee and insists that allowing any voter to
substitute just like in a quo warranto will not open the floodgate to whimsical protests,
and the imagined political instability feared by protestee will even more be pronounced if
the protest is dismissed. Movant/intervenor reiterates that the issue at hand involves
just the continuation of proceedings by allowing substitution and the taking over by the
substitute of the prosecution of the protest already duly commenced.
[6]

Plainly, the issue here is: May the widow substitute/intervene for the protestant who
died during the pendency of the latters protest case?
The fundamental rule applicable in a presidential election protest is Rule 14 of the
PET Rules. It provides,

Rule 14. Election Protest.Only the registered candidate for President or for VicePresident of the Philippines who received the second or third highest number of votes

may contest the election of the President or the Vice-President, as the case may be, by
filing a verified petition with the Clerk of the Presidential Electoral Tribunal within
thirty (30) days after the proclamation of the winner.
Pursuant to this rule, only two persons, the 2 nd and 3rd placers, may contest the
election. By this express enumeration, the rule makers have in effect determined the
real parties in interest concerning an on-going election contest. It envisioned a scenario
where, if the declared winner had not been truly voted upon by the electorate, the
candidate who received that 2ndor the 3rd highest number of votes would be the
legitimate beneficiary in a successful election contest.
This Tribunal, however, does not have any rule on substitution nor intervention but it
does allow for the analogous and suppletory application of the Rules of Court, decisions
of the Supreme Court, and the decisions of the electoral tribunals.
[7]

Rule 3, Section 16 is the rule on substitution in the Rules of Court. This rule allows
substitution by a legal representative. It can be gleaned from the citation of this rule that
movant/intervenor seeks to appear before this Tribunal as the legal
representative/substitute of the late protestant prescribed by said Section 16. However,
in our application of this rule to an election contest, we have every time ruled that a
public office is personal to the public officer and not a property transmissible to the heirs
upon death. Thus, we consistently rejected substitution by the widow or the heirs in
election contests where the protestant dies during the pendency of the protest. In Vda.
de De Mesa v. Mencias, we recognized substitution upon the death of the protestee
but denied substitution by the widow or heirs since they are not the real parties in
interest. Similarly, in the later case of De la Victoria v. Commission on Elections, we
struck down the claim of the surviving spouse and children of the protestee to the
contested office for the same reason. Even in analogous cases before other electoral
tribunals, involving substitution by the widow of a deceased protestant, in cases where
the widow is not a real party in interest, we denied substitution by the wife or heirs.
[8]

[9]

[10]

[11]

[12]

This is not to say that death of the protestant necessarily abates the pending action.
We have held as early as Vda. de De Mesa (1966) that while the right to a public office
is personal and exclusive to the public officer, an election protest is not purely personal
and exclusive to the protestant or to the protestee such that the death of either would
oust the court of all authority to continue the protest proceedings. Hence, we have
allowed substitution and intervention but only by a real party in interest. A real party in
interest is the party who would be benefited or injured by the judgment, and the party
who is entitled to the avails of the suit. In Vda. de De Mesa v.
Mencias and Lomugdang v. Javier, we permitted substitution by the vice-mayor since
the vice-mayor is a real party in interest considering that if the protest succeeds and the
protestee is unseated, the vice-mayor succeeds to the office of the mayor that becomes
vacant if the one duly elected cannot assume office. In contrast, herein
movant/intervenor, Mrs. FPJ, herself denies any claim to the august office of President.
Thus, given the circumstances of this case, we can conclude that protestants widow is
not a real party in interest to this election protest.
[13]

[14]

[15]

[16]

We are not unaware that a contest before election tribunals has two aspects. First, it
is in pursuit of ones right to a public office, and second, it is imbued with public interest.
Indeed the personal aspect of the case is inextricably linked with the public interest.
For an election protest involves not merely conflicting private aspirations but is imbued
with public interest which raises it into a plane over and above ordinary civil actions.
But herein movant/intervenor, Mrs. FPJ, has overly stressed that it is with the
paramount public interest in mind that she desires to pursue the process commenced
by her late husband. She avers that she is pursuing the process to determine who truly
won the election, as a service to the Filipino people. We laud her noble intention and
her interest to find out the true will of the electorate. However, nobility of intention is not
the point of reference in determining whether a person may intervene in an election
protest. Rule 19, Section 1 of the Rules of Court is the applicable rule on intervention
in the absence of such a rule in the PET Rules. In such intervention, the interest which
allows a person to intervene in a suit must be in the matter of litigation and of such
direct and immediate character that the intervenor will either gain or lose by the effect of
the judgment. In this protest, Mrs. FPJ will not immediately and directly benefit from the
outcome should it be determined that the declared president did not truly get the highest
number of votes. We fully appreciate counsels manifestation that movant/intervenor
herself claims she has no interest in assuming the position as she is aware that she
cannot succeed to the presidency, having no legal right to it. Yet thus far, in this case, no
real parties such as the vice-presidential aspirants in the 2004 elections, have come
forward to intervene, or to be substituted for the deceased protestant. In our view, if
persons not real parties in the action could be allowed to intervene, proceedings will be
unnecessarily complicated, expensive and interminable and this is not the policy of the
law. It is far more prudent to abide by the existing strict limitations on intervention and
substitution under the law and the rules.
[17]

[18]

[19]

Conformably then with the law, the rules and prevailing jurisprudence, this Tribunal
finds no justifiable reason to grant the petition/motion for intervention and substitution.
WHEREFORE, the motion of movant/intervenor JESUSA SONORA POE a.k.a.
SUSAN ROCES to intervene and substitute for the deceased protestant is DENIED for
lack of merit.
Acting on the protest and considering the Notice of the Death, submitted by counsel
of protestant RONALD ALLAN POE, a.k.a. FERNANDO POE, JR., we also resolve that
Presidential Electoral Tribunal Case No. 002, entitled Ronald Allan Poe a.k.a. Fernando
Poe, Jr. v. Gloria Macapagal-Arroyo, should be as it is hereby DISMISSED on the
ground that no real party in interest has come forward within the period allowed by law,
to intervene in this case or be substituted for the deceased protestant.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, ChicoNazario, and Garcia, JJ., concur.

[1]

Resolution of Both Houses No. 01, 12th Cong., Joint Public Session (2004).

[2]

G.R. No. 125249, 7 February 1997, 267 SCRA 806.

[3]

No. L-27535, 30 September 1967, 21 SCRA 402.

[4]

No. L-24583, 29 October 1966, 18 SCRA 533.

[5]

P.E.T. Case No. 001, 13 February 1996, 253 SCRA 559.

[6]

HRET Case No. 95-005, 11 September 1996, 9 HRET Reports 102.

[7]

Rule 69. Applicability.The following shall be applicable by analogy or in suppletory character and effect
in so far as they may be applicable and are not inconsistent with these Rules and with the orders,
resolutions and decisions of the Tribunal, namely: 1) The Rules of Court; 2) Decisions of the
Supreme Court; 3) Decisions of the Electoral Tribunals.

[8]

SEC. 16. Death of party; duty of counsel.Whenever a party to a pending action dies, and the claim is not
thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days
after such death of the fact thereof, and to give the name and address of his legal representative
or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary
action.
The heirs of the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and
be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party or if the one so
named shall fail to appear within the specified period, the court may order the opposing party,
within a specified time, to procure the appointment of an executor or administrator for the estate
of the deceased and the latter shall immediately appear for and on behalf of the deceased. The
court charges in procuring such appointment, if defrayed by the opposing party, may be
recovered as costs.

[9]

De Castro v. Commission on Elections, G.R. No. 125249, 7 February 1997, 267 SCRA 806, 809.

[10]

No. L-24583, 29 October 1966, 18 SCRA 533, 545.

[11]

G.R. Nos. 95275-76, 23 July 1991, 199 SCRA 561, 565-566.

[12]

Abadilla v. Ablan, HRET Case No. 95-005, 11 September 1996, 9 HRET Reports 102; Alberto v. Tapia,
HRET Case No. 37, 23 January 1989, 1 HRET Reports 52.

[13]

De Castro v. Commission on Elections, supra at 809.

[14]

Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng Mga Manggagawang Pilipino, Inc., G.R.
Nos.
160261-63
&
160277,
10
November
2003,
415
SCRA
44,
135
citing Kilosbayan Incorporated v. Morato, G.R. No. 118910, 17 July 1995, 246 SCRA 540, 563.

[15]

No. L-24583, 29 October 1966, 18 SCRA 545.

[16]

No. L-27535, 30 September 1967, 21 SCRA 402, 407.

[17]

Vda. de De Mesa v. Mencias, supra at 538.

[18]

SECTION 1. Who may intervene.A person who has a legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. The court shall consider
whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenors rights may be fully protected in a separate
proceeding.

[19]

Magsaysay-Labrador v. Court of Appeals, G.R. No. 58168, 19 December 1989, 180 SCRA 266, 271.

EN BANC
AKBAYAN
CITIZENS
ACTION
PARTY (AKBAYAN), PAMBANSANG G.R. No. 170516
KATIPUNAN NG MGA SAMAHAN SA
KANAYUNAN (PKSK), ALLIANCE Present:
PUNO, C.J.,
OF PROGRESSIVE LABOR (APL),
QUISUMBING,
VICENTE A. FABE, ANGELITO R.
YNARES-SANTIAGO,
MENDOZA,
MANUEL
P.
CARPIO,
QUIAMBAO, ROSE BEATRIX CRUZAUSTRIA-MARTINEZ,
ANGELES, CONG. LORENZO R.
CORONA,
TANADA III, CONG. MARIO JOYO
CARPIO MORALES,
AGUJA, CONG. LORETA ANN P.
AZCUNA,
ROSALES, CONG. ANA THERESIA
TINGA,
HONTIVEROS-BARAQUEL,
AND
CHICO-NAZARIO,
CONG.
EMMANUEL
JOEL
J.
VELASCO, JR.,
VILLANUEVA,
NACHURA,
Petitioners,
REYES,
LEONARDO-DE CASTRO, &
- versus
BRION, JJ.
THOMAS G. AQUINO, in his capacity
as Undersecretary of the Department of
Trade and Industry (DTI) and
Chairman and Chief Delegate of the
Philippine Coordinating Committee
(PCC) for the Japan-Philippines
Economic
Partnership
Agreement,
EDSEL T. CUSTODIO, in his capacity

as Undersecretary of the Department of Promulgated:

Foreign Affairs (DFA) and Co-Chair of
the PCC for the JPEPA, EDGARDO
ABON, in his capacity as Chairman of July 16, 2008
the Tariff Commission and lead
negotiator for Competition Policy and
Emergency Measures of the JPEPA,
MARGARITA SONGCO, in her
capacity as Assistant Director-General
of the National Economic Development
Authority (NEDA) and lead negotiator
for Trade in Services and Cooperation
of the JPEPA, MALOU MONTERO, in
her capacity as Foreign Service Officer
I, Office of the Undersecretary for
International Economic Relations of the
DFA and lead negotiator for the General
and Final Provisions of the JPEPA,
ERLINDA ARCELLANA, in her
capacity as Director of the Board of
Investments and lead negotiator for
Trade in Goods (General Rules) of the
JPEPA, RAQUEL ECHAGUE, in her
capacity as lead negotiator for Rules of
Origin of the JPEPA, GALLANT
SORIANO, in his official capacity as
Deputy Commissioner of the Bureau of
Customs and lead negotiator for
Customs Procedures and Paperless
Trading of the JPEPA, MA. LUISA
GIGETTE IMPERIAL, in her capacity
as Director of the Bureau of Local
Employment of the Department of
Labor and Employment (DOLE) and
lead negotiator for Movement of
Natural Persons of the JPEPA,
PASCUAL DE GUZMAN, in his
capacity as Director of the Board of
Investments and lead negotiator for

Investment of the JPEPA, JESUS

MOTOOMULL, in his capacity as
Director for the Bureau of Product
Standards of the DTI and lead
negotiator for Mutual Recognition of
the JPEPA, LOUIE CALVARIO, in his
capacity as lead negotiator for
Intellectual Property of the JPEPA,
ELMER H. DORADO, in his capacity
as Officer-in-Charge of the Government
Procurement Policy Board Technical
Support Office, the government agency
that is leading the negotiations on
Government Procurement of the
JPEPA, RICARDO V. PARAS, in his
capacity as Chief State Counsel of the
Department of Justice (DOJ) and lead
negotiator for Dispute Avoidance and
Settlement of the JPEPA, ADONIS
SULIT, in his capacity as lead
negotiator for the General and Final
Provisions of the JPEPA, EDUARDO R.
ERMITA, in his capacity as Executive
Secretary, and ALBERTO ROMULO,
in his capacity as Secretary of the DFA,*
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Petitioners non-government organizations, Congresspersons, citizens and taxpayers
seek via the present petition for mandamus and prohibition to obtain from
respondents the full text of the Japan-Philippines Economic Partnership Agreement
(JPEPA) including the Philippine and Japanese offers submitted during the
negotiation process and all pertinent attachments and annexes thereto.

Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed
on January 25, 2005 House Resolution No. 551 calling for an inquiry into the
bilateral trade agreements then being negotiated by the Philippine government,
particularly the JPEPA. The Resolution became the basis of an inquiry
subsequently conducted by the House Special Committee on Globalization (the
House Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent
Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine
Coordinating Committee created under Executive Order No. 213 (CREATION OF
A PHILIPPINE COORDINATING COMMITTEE TO STUDY THE
FEASIBILITY OF THE JAPAN-PHILIPPINES ECONOMIC PARTNERSHIP
AGREEMENT)[1] to study and negotiate the proposed JPEPA, and to furnish the
Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not heed
the request, however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by
letter of November 2, 2005, replied that the Congressman shall be provided with a
copy thereof once the negotiations are completed and as soon as a thorough legal
review of the proposed agreement has been conducted.
In
a
separate
move,
the
House
Committee,
through
Congressman Herminio G. Teves,
requested
Executive
Secretary
Eduardo Ermita to furnish it with all documents on the subject including the latest
draft of the proposed agreement, the requests and offers etc. [2] Acting on the
request, Secretary Ermita, by letter of June 23, 2005, wrote CongressmanTeves as
follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign]
A[ffairs] explains that the Committees request to be furnished all documents
on the JPEPA may be difficult to accomplish at this time, since the proposed
Agreement has been a work in progress for about three years. A copy of the
draft JPEPA will however be forwarded to the Committee as soon as the text
thereof is settled and complete. (Emphasis supplied)

Congressman Aguja also

requested
NEDA
DirectorGeneral Romulo Neri and Tariff Commission Chairman Edgardo Abon, by letter
of July 1, 2005, for copies of the latest text of the JPEPA.

Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff
Commission does not have a copy of the documents being requested, albeit he was
certain thatUsec. Aquino would provide the Congressman with a copy once the
negotiation is completed. And by letter of July 18, 2005, NEDA Assistant DirectorGeneral Margarita R.Songco informed the Congressman that his request addressed
to Director-General Neri had been forwarded to Usec. Aquino who would be in the
best position to respond to the request.
In its third hearing conducted on August 31, 2005, the House Committee resolved
to issue a subpoena for the most recent draft of the JPEPA, but the same was not
pursued because by Committee Chairman Congressman Teves information, then
House Speaker Jose de Venecia had requested him to hold in abeyance the issuance
of the subpoena until the President gives her consent to the disclosure of the
documents.[3]
Amid speculations that the JPEPA might be signed by the Philippine government
within December 2005, the present petition was filed on December 9, 2005.[4] The
agreement was to be later signed on September 9, 2006 by President
Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi
in Helsinki, Finland, following which the President endorsed it to the Senate for its
concurrence pursuant to Article VII, Section 21 of the Constitution. To date, the
JPEPA is still being deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into
by the Philippines with another country in the event the Senate grants its consent to
it, covers a broad range of topics which respondents enumerate as follows: trade in
goods, rules of origin, customs procedures, paperless trading, trade in services,
investment, intellectual property rights, government procurement, movement of
natural persons, cooperation, competition policy, mutual recognition, dispute
avoidance and settlement, improvement of the business environment, and general
and final provisions.[5]
While the final text of the JPEPA has now been made accessible to the public
since September 11, 2006,[6] respondents do not dispute that, at the time the petition
was filed up to the filing of petitioners Reply when the JPEPA was still being
negotiated the initial drafts thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in support of
the petition, the Court finds it necessary to first resolve some material procedural
issues.

Standing
For a petition for mandamus such as the one at bar to be given due course, it must
be instituted by a party aggrieved by the alleged inaction of any tribunal,
corporation, board or person which unlawfully excludes said party from the
enjoyment of a legal right.[7] Respondents deny that petitioners have such standing
to sue. [I]n the interest of a speedy and definitive resolution of the substantive
issues raised, however, respondents consider it sufficient to cite a portion of the
ruling in Pimentel v. Office of Executive Secretary[8]which emphasizes the need for
a personal stake in the outcome of the controversy on questions of standing.
In a petition anchored upon the right of the people to information on matters of
public concern, which is a public right by its very nature, petitioners need not show
that they have any legal or special interest in the result, it being sufficient to show
that they are citizens and, therefore, part of the general public which possesses the
right.[9] As the present petition is anchored on the right to information and
petitioners are all suing in their capacity as citizens and groups of citizens
including petitioners-members of the House of Representatives who additionally
are suing in their capacity as such, the standing of petitioners to file the present suit
is grounded in jurisprudence.
Mootness
Considering, however, that [t]he principal relief petitioners are praying for is the
disclosure of the contents of the JPEPA prior to its finalization between the two
States parties,[10] public disclosure of the text of the JPEPA after its signing by the
President, during the pendency of the present petition, has been largely rendered
moot and academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now
stands cannot yet be considered as final and binding between the two
States. Article 164 of the JPEPA itself provides that the agreement does not take
effect immediately upon the signing thereof. For it must still go through the
procedures required by the laws of each country for its entry into force, viz:
Article 164
Entry into Force

This Agreement shall enter into force on the thirtieth day after the date on which
the Governments of the Parties exchange diplomatic notes informing each
other that their respective legal procedures necessary for entry into force of
this Agreement have been completed. It shall remain in force unless terminated
as provided for in Article 165.[11] (Emphasis supplied)

President Arroyos endorsement of the JPEPA to the Senate for concurrence is part
of the legal procedures which must be met prior to the agreements entry into force.
The text of the JPEPA having then been made accessible to the public, the petition
has become moot and academic to the extent that it seeks the disclosure of the full
text thereof.
The petition is not entirely moot, however, because petitioners seek to
obtain, not merely the text of the JPEPA, but also the Philippine and
Japanese offers in the course of the negotiations.[12]
A discussion of the substantive issues, insofar as they impinge on petitioners
demand for access to the Philippine and Japanese offers, is thus in order.

Grounds relied upon by petitioners

Petitioners assert, first, that the refusal of the government to disclose the
documents bearing on the JPEPA negotiations violates their right to information
on matters of publicconcern[13] and contravenes other constitutional provisions on
transparency, such as that on the policy of full public disclosure of all transactions
involving public interest.[14]Second, they contend that non-disclosure of the same
documents undermines their right to effective and reasonable participation in all
levels of social, political, and economic decision-making.[15] Lastly, they proffer
that divulging the contents of the JPEPA only after the agreement has been
concluded will effectively make the Senate into a mere rubber stamp of the
Executive, in violation of the principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest
text of the JPEPA are, except for the last, the same as those cited for the disclosure
of the Philippine and Japanese offers.

The first two grounds relied upon by petitioners which bear on the merits of
respondents claim of privilege shall be discussed. The last, being
purely speculatory given that the Senate is still deliberating on the JPEPA, shall
not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the
threshold requirement that it be a matter of public concern. Apropos is the teaching
of Legaspi v. Civil Service Commission:
In determining whether or not a particular information is of public concern there
is no rigid test which can be applied. Public concern like public interest is a term
that eludes exact definition.Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a case by case
basis whether the matter at issue is of interest or importance, as it relates to or
affects the public.[16] (Underscoring supplied)

From the nature of the JPEPA as an international trade agreement, it is evident that
the Philippine and Japanese offers submitted during the negotiations towards its
execution are matters of public concern. This, respondents do not dispute. They
only claim that diplomatic negotiations are covered by the doctrine of executive
privilege, thus constituting an exception to the right to information and the policy
of full public disclosure.
Respondents claim of privilege
It is well-established in jurisprudence that neither the right to information nor the
policy of full public disclosure is absolute, there being matters which, albeit of
public concern or public interest, are recognized as privileged in nature. The types
of information which may be considered privileged have been elucidated
in Almonte v. Vasquez,[17] Chavez v. PCGG,[18] Chavez v. Public Estates Authority,
[19]
and most recently in Senate v. Ermita[20] where the Court reaffirmed the validity
of the doctrine of executive privilege in this jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on the ground invoked to
justify it and the context in which it is made.[21] In the present case, the ground for
respondents claim of privilege is set forth in their Comment, viz:

x x x The categories of information that may be considered privileged includes

matters of diplomatic character and under negotiation and review. In this case, the
privileged character of thediplomatic negotiations has been categorically
invoked and clearly explained by respondents particularly respondent DTI Senior
Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to
negotiations and legal review by the parties fall under the exceptions to the right
of access to information on matters of public concern and policy of public
disclosure. They come within the coverage of executive privilege. At the
time when the Committee was requesting for copies of such documents, the
negotiations were ongoing as they are still now and the text of the proposed
JPEPA is still uncertain and subject to change. Considering the status and nature
of such documents then and now, these are evidently covered by executive
privilege consistent with existing legal provisions and settled jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of
the rolling texts which may undergo radical change or portions of which may be
totally abandoned. Furthermore, the negotiations of the representatives of the
Philippines as well as of Japan must be allowed to explore alternatives in the
course of the negotiations in the same manner as judicial deliberations and
working drafts of opinions are accorded strict confidentiality.[22] (Emphasis
and underscoring supplied)

The ground relied upon by respondents is thus not simply that the information
sought involves a diplomatic matter, but that it pertains to diplomatic
negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the right to information, the Court
in Chavez v. PCGG held that information on inter-government exchanges prior to
the conclusion of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest.[23] Even earlier, the same privilege was
upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus[24] wherein
the Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the
Presidents representatives on the state of the then on-going negotiations of the RPUS Military Bases Agreement.[25] The Court denied the petition, stressing

that secrecy of negotiations with foreign countries is not violative of the

constitutional provisions of freedom of speech or of the press nor of the freedom
of access to information. The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition
of decision which are inherent in executive action. Another essential
characteristic of diplomacy is its confidential nature. Although much has been
said about open and secret diplomacy, with disparagement of the latter,
Secretaries of State Hughes and Stimson have clearly analyzed and justified the
practice. In the words of Mr. Stimson:
A complicated negotiation . . . cannot be carried through
without many, many private talks and discussion, man to man;
many tentative suggestions and proposals.Delegates from other
countries come and tell you in confidence of their troubles at
home and of their differences with other countries and with
other delegates; they tell you of what they would do under
certain circumstances and would not do under other
circumstances. . . If these reports . . . should become
public . . . who would ever trust American Delegations in
another conference? (United States Department of State, Press
Releases, June 7, 1930, pp. 282-284.).
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign
powers on nearly all subjects is concerned. This, it is claimed, is incompatible
with the substance of democracy. As expressed by one writer, It can be said that
there is no more rigid system of silence anywhere in the world. (E.J. Young,
Looking Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in
starting his efforts for the conclusion of the World War declared that we must have
open covenants, openly arrived at. He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is
possible. In the moment that negotiations are started, pressure groups
attempt to muscle in. An ill-timed speech by one of the parties or a frank
declaration of the concession which are exacted or offered on both sides
would quickly lead to widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully
published, there is ample opportunity for discussion before it is
approved. (The New American Government and Its Works, James T. Young,
4th Edition, p. 194) (Emphasis and underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S.

v. Curtiss-Wright Export Corp.[26] that the President is the sole organ of the nation
in its negotiations with foreign countries, viz:
x x x In this vast external realm, with its important, complicated, delicate and
manifold problems, the President alone has the power to speak or listen as a
representative of the nation. He makestreaties with the advice and consent of the
Senate; but he alone negotiates. Into the field of negotiation the Senate cannot
intrude; and Congress itself is powerless to invade it. As Marshall said in his great
argument of March 7, 1800, in the House of Representatives, The President is
the sole organ of the nation in its external relations, and its sole
representative with foreign nations. Annals, 6th Cong., col. 613. . . (Emphasis
supplied; underscoring in the original)

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the
final text of the JPEPA may not be kept perpetually confidential since there should
be ample opportunity for discussion before [a treaty] is approved
the offers exchanged by the parties during the negotiations continue to be
privileged even after the JPEPA is published. It is reasonable to conclude that the
Japanese representatives submitted their offers with the understanding that historic
confidentiality[27] would govern the same. Disclosing these offers could impair the
ability of the Philippines to deal not only with Japan but with other foreign
governments in future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public
scrutiny would discourage future Philippine representatives from frankly
expressing their views during negotiations. While, on first impression, it appears
wise to deter Philippine representatives from entering into compromises, it bears
noting that treaty negotiations, or any negotiation for that matter, normally involve
a process of quid pro quo, and oftentimes negotiators have to be willing to grant
concessions in an area of lesser importance in order to obtain more favorable
terms in an area of greater national interest. Apropos are the following
observations of Benjamin S. Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in
agreement that publicity leads to grandstanding, tends to freeze negotiating
positions, and inhibits the give-and-take essential to successful
negotiation. As Sissela Bok points out, if negotiators have more to gain from
being approved by their own sides than by making a reasoned agreement with
competitors or adversaries, then they are inclined to 'play to the gallery . . .'' In
fact, the public reaction may leave them little option. It would be a brave, or

foolish, Arab leader who expressed publicly a willingness for peace with Israel
that did not involve the return of the entire West Bank, or Israeli leader who stated
publicly a willingness to remove Israel's existing settlements from Judea and
Samaria in return for peace.[28] (Emphasis supplied)

Indeed, by hampering the ability of our representatives to compromise, we

may be jeopardizing higher national goals for the sake of securing less critical
ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction,
the JPEPA negotiations constituting no exception. It bears emphasis, however, that
such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a
type of information as privileged does not mean that it will be considered
privileged in all instances.Only after a consideration of the context in which the
claim is made may it be determined if there is a public interest that calls for the
disclosure of the desired information, strong enough to overcome its traditionally
privileged status.
Whether petitioners have established the presence of such a public interest shall be
discussed later. For now, the Court shall first pass upon the arguments raised by
petitioners against the application of PMPF v. Manglapus to the present case.
Arguments proffered
v. Manglapus

by

petitioners against the

application

of PMPF

Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present
case, there being substantial factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of
the treaty involved. They stress that PMPF v. Manglapus involved the Military
Bases Agreement which necessarily pertained to matters affecting national
security; whereas the present case involves an economic treaty that seeks to
regulate trade and commerce between the Philippines and Japan, matters which,
unlike those covered by the Military Bases Agreement, are not so vital to national
security to disallow their disclosure.
Petitioners argument betrays a faulty assumption that information, to be considered
privileged, must involve national security. The recognition in Senate
v. Ermita[29] that executive privilege has encompassed claims of varying kinds, such

that it may even be more accurate to speak of executive privileges, cautions against
such generalization.
While there certainly are privileges grounded on the necessity of safeguarding
national security such as those involving military secrets, not all are founded
thereon. One example is the informers privilege, or the privilege of the
Government not to disclose the identity of a person or persons who furnish
information of violations of law to officers charged with the enforcement of that
law.[30] The suspect involved need not be so notorious as to be a threat to national
security for this privilege to apply in any given instance.Otherwise, the privilege
would be inapplicable in all but the most high-profile cases, in which case not only
would this be contrary to long-standing practice. It would also be highly prejudicial
to law enforcement efforts in general.
Also illustrative is the privilege accorded to presidential communications,
which are presumed privileged without distinguishing between those which
involve matters of national security and those which do not, the rationale for the
privilege being that
x x x [a] frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-makingof those tasked to exercise Presidential,
Legislative and Judicial power. x x x[31] (Emphasis supplied)

In the same way that the privilege for judicial deliberations does not depend on the
nature of the case deliberated upon, so presidential communications are privileged
whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential
communications is not absolute, one significant qualification being that the
Executive cannot, any more than the other branches of government, invoke a
general confidentiality privilege to shield its officials and employees from
investigations by the proper governmental institutions into possible criminal
wrongdoing. [32] This qualification applies whether the privilege is being invoked
in the context of a judicial trial or a congressional investigation conducted in aid of
legislation.[33]
Closely related to the presidential communications privilege is the deliberative
process privilege recognized in the United States. As discussed by the U.S.
Supreme Court inNLRB v. Sears, Roebuck & Co,[34] deliberative process

covers documents reflecting advisory opinions, recommendations and deliberations

comprising part of a process by which governmental decisions and policies are
formulated. Notably, the privileged status of such documents rests, not on the
need to protect national security but, on the obvious realization that officials will
not communicate candidly among themselves if each remark is a potential item of
discovery and front page news, the objective of the privilege being to enhance the
quality of agency decisions. [35]
The diplomatic negotiations privilege bears a close resemblance to the
deliberative process and presidential communications privilege. It may be readily
perceived that the rationale for the confidential character of diplomatic
negotiations, deliberative process, and presidential communications is similar, if
not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the privilege for
diplomatic negotiations is meant to encourage a frank exchange of exploratory
ideas between the negotiating parties by shielding such negotiations from public
view. Similar to the privilege for presidential communications, the diplomatic
negotiations privilege seeks, through the same means, to protect the independence
in decision-making of the President, particularly in its capacity as the sole organ of
the nation in its external relations, and its sole representative with foreign
nations. And, as with the deliberative process privilege, the privilege accorded to
diplomatic negotiations arises, not on account of the content of the information per
se, but because the information is part of a process of deliberation which, in pursuit
of the public interest, must be presumed confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright
& Jaworski v. Department of the Treasury[37] enlightens on the close relation
between diplomatic negotiations and deliberative process privileges. The plaintiffs
in that case sought access to notes taken by a member of the U.S. negotiating team
during the U.S.-French taxtreaty negotiations. Among the points noted therein
were the issues to be discussed, positions which the French and U.S. teams took on
some points, the draft language agreed on, and articles which needed to be
amended. Upholding the confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true example
of a deliberative process. Much give-and-take must occur for the countries to
reach an accord. A description of the negotiations at any one point would not
provide an onlooker a summary of the discussions which could later be relied on
as law. It would not be working law as the points discussed and positions agreed
on would be subject to change at any date until the treaty was signed by the
President and ratified by the Senate.

The policies behind the deliberative process privilege support nondisclosure. Much harm could accrue to the negotiations process if these notes
were revealed. Exposure of the pre-agreement positions of the French
negotiators might well offend foreign governments and would lead to less
candor by the U. S. in recording the events of the negotiations process. As
several months pass in between negotiations, this lack of record could hinder
readily the U. S. negotiating team. Further disclosure would reveal prematurely
adopted policies. If these policies should be changed, public confusion would
result easily.
Finally, releasing these snapshot views of the negotiations would be
comparable to releasing drafts of the treaty, particularly when the notes state
the tentative provisions and language agreed on. As drafts of regulations
typically are protected by the deliberative process privilege, Arthur Andersen
& Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982),
drafts of treaties should be accorded the same protection. (Emphasis and
underscoring supplied)

Clearly, the privilege accorded to diplomatic negotiations follows as a logical

consequence from the privileged character of the deliberative process.

The Court is not unaware that in Center for International Environmental Law
(CIEL), et al. v. Office of U.S. Trade Representative[38] where the plaintiffs sought
information relating to the just-completed negotiation of a United States-Chile
Free Trade Agreement the same district court, this time under Judge Friedman,
consciously refrained from applying the doctrine in Fulbright and ordered the
disclosure of the information being sought.

Since the factual milieu in CIEL seemed to call for the straight application of the
doctrine in Fulbright, a discussion of why the district court did not apply the same
would help illumine this Courts own reasons for deciding the present case along
the lines of Fulbright.

In both Fulbright and CIEL, the U.S. government cited a statutory basis for
withholding information, namely, Exemption 5 of the Freedom of Information Act
(FOIA).[39] In order to qualify for protection under Exemption 5, a document must

satisfy two conditions: (1) it must be either inter-agency or intra-agency in

nature, and (2) it must be bothpre-decisional and part of the agency's
deliberative or decision-making process.[40]

Judge Friedman, in CIEL, himself cognizant of a superficial similarity of context

between the two cases, based his decision on what he perceived to be a significant
distinction: he found the negotiators notes that were sought in Fulbright to be
clearly internal, whereas the documents being sought in CIEL were those
produced by or exchanged with an outside party, i.e. Chile. The documents subject
of Fulbright being clearly internal in character, the question of disclosure therein
turned not on the threshold requirement of Exemption 5 that the document be
inter-agency, but on whether the documents were part of the agency's predecisional deliberative process. On this basis, Judge Friedman found that Judge
Green's discussion [in Fulbright] of the harm that could result from disclosure
therefore is irrelevant, since the documents at issue [in CIEL] are not interagency, and the Court does not reach the question of deliberative
process. (Emphasis supplied)

In fine, Fulbright was not overturned. The court in CIEL merely found the same to
be irrelevant in light of its distinct factual setting. Whether this conclusion was
valid a question on which this Court would not pass the ruling in Fulbright that
[n]egotiations between two countries to draft a treaty represent a true example of a
deliberative process was left standing, since the CIEL court explicitly stated that it
did not reach the question of deliberative process.

Going back to the present case, the Court recognizes that the information
sought by petitioners includes documents produced and communicated by a party
external to the Philippine government, namely, the Japanese representatives in the
JPEPA negotiations, and to that extent this case is closer to the factual
circumstances of CIEL than those ofFulbright.

Nonetheless, for reasons which shall be discussed shortly, this Court echoes the
principle articulated in Fulbright that the public policy underlying the deliberative
process privilege requires that diplomatic negotiations should also be accorded

privileged status, even if the documents subject of the present case cannot be
described as purely internal in character.

It need not be stressed that in CIEL, the court ordered the disclosure of
information based on its finding that the first requirement of FOIA Exemption 5
that the documents be inter-agency was not met. In determining whether the
government may validly refuse disclosure of the exchanges between
the U.S. and Chile, it necessarily had to deal with this requirement, it being laid
down by a statute binding on them.

In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any
statutory requirement similar to FOIA Exemption 5 in particular. Hence,
Philippine courts, when assessing a claim of privilege for diplomatic negotiations,
are more free to focus directly on the issue of whether the privilege being
claimed is indeed supported by public policy, without having to consider as
the CIEL court did if these negotiations fulfill a formal requirement of being interagency. Important though that requirement may be in the context of domestic
negotiations, it need not be accorded the same significance when dealing with
international negotiations.

There being a public policy supporting a privilege for diplomatic negotiations for
the reasons explained above, the Court sees no reason to modify, much less
abandon, the doctrine in PMPF v. Manglapus.

A second point petitioners proffer in their attempt to

differentiate PMPF
v. Manglapus from the present case is the fact that the petitioners therein consisted
entirely of members of the mass media, while petitioners in the present case
include members of the House of Representatives who invoke their right to
information not just as citizens but as members of Congress.

Petitioners thus conclude that the present case involves the right of members of
Congress to demand information on negotiations of international trade agreements
from the Executive branch, a matter which was not raised in PMPF v. Manglapus.

While indeed the petitioners in PMPF v. Manglapus consisted only of members of

the mass media, it would be incorrect to claim that the doctrine laid down therein
has no bearing on a controversy such as the present, where the demand for
information has come from members of Congress, not only from private citizens.
The privileged character accorded to diplomatic negotiations does not ipso
facto lose all force and effect simply because the same privilege is now being
claimed under different circumstances. The probability of the claim succeeding
in the new context might differ, but to say that the privilege, as such, has no
validity at all in that context is another matter altogether.
The Courts statement in Senate v. Ermita that presidential refusals to furnish
information may be actuated by any of at least three distinct kinds of
considerations [state secrets privilege, informers privilege, and a generic privilege
for internal deliberations], and may be asserted, with differing degrees of success,
in the context of either judicial or legislative investigations, [41] implies that a
privilege, once recognized, may be invoked under different procedural
settings. That this principle holds true particularly with respect to diplomatic
negotiations may be inferred from PMPF v. Manglapus itself, where the Court held
that it is the President alone who negotiates treaties, and not even the Senate or the
House of Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only
against citizens demands for information, but also in the context of legislative
investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character
of diplomatic negotiations cannot be considered irrelevant in resolving the present
case, the contextual differences between the two cases notwithstanding.
As third and last point raised against the application of PMPF
v. Manglapus in this case, petitioners proffer that the socio-political and historical
contexts of the two cases are worlds apart. They claim that the constitutional
traditions and concepts prevailing at the time PMPF v. Manglapus came about,
particularly the school of thought that the requirements of foreign policy and the
ideals of transparency were incompatible with each other or the incompatibility
hypothesis, while valid when international relations were still governed by power,
politics and wars, are no longer so in this age of international cooperation.[42]
Without delving into petitioners assertions respecting the incompatibility
hypothesis, the Court notes that the ruling in PMPF v. Manglapus is grounded

more on the nature of treaty negotiations as such than on a particular socio-political

school of thought. If petitioners are suggesting that the nature of treaty negotiations
have so changed that [a]n ill-timed speech by one of the parties or a frank
declaration of the concession which are exacted or offered on both sides no
longer lead[s] to widespread propaganda to block the negotiations, or that parties in
treaty negotiations no longer expect their communications to be governed by
historic confidentiality, the burden is on them to substantiate the same. This
petitioners failed to discharge.
Whether the privilege applies only at certain stages of the negotiation process
Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a
reasonable amount of confidentiality so as not to jeopardize the diplomatic
process. They argue, however, that the same is privileged only at certain stages of
the negotiating process, after which such information must necessarily be revealed
to the public.[43] They add that the duty to disclose this information was vested in
the government when the negotiations moved from the formulation and
exploratory stage to the firming up of definite propositions or official
recommendations, citing Chavez v. PCGG[44] and Chavez v. PEA.[45]
The following statement in Chavez v. PEA, however, suffices to show that the
doctrine in both that case and Chavez v. PCGG with regard to the duty to disclose
definite propositions of the government does not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official
information on on-going negotiations before a final contract. The information,
however, must constitutedefinite propositions by the government and should
not cover recognized exceptions like privileged information, military and
diplomatic secrets and similar matters affecting national security and public
order. x x x[46] (Emphasis and underscoring supplied)

It follows from this ruling that even definite propositions of the government may
not be disclosed if they fall under recognized exceptions. The privilege for
diplomatic negotiations is clearly among the recognized exceptions, for the
footnote to the immediately quoted ruling cites PMPF v. Manglapus itself as an
authority.
Whether there is sufficient public interest to overcome the claim of privilege

It being established that diplomatic negotiations enjoy a presumptive privilege

against disclosure, even against the demands of members of Congress for
information, the Court shall now determine whether petitioners have shown the
existence of a public interest sufficient to overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be taken
into account. One is the presumed public interest in favor of keeping the subject
information confidential, which is the reason for the privilege in the first place,
and the other is the public interest in favor of disclosure, the existence of which
must be shown by the party asking for information. [47]
The criteria to be employed in determining whether there is a sufficient public
interest in favor of disclosure may be gathered from cases such as U.S. v. Nixon,
[48]
Senate Select Committee on Presidential Campaign Activities v. Nixon,[49] and In
re Sealed Case.[50]
U.S. v. Nixon, which involved a claim of the presidential communications privilege
against the subpoena duces tecum of a district court in a criminal case,
emphasized the need to balance such claim of privilege against the constitutional
duty of courts to ensure a fair administration of criminal justice.
x x x the allowance of the privilege to withhold evidence that is demonstrably
relevant in a criminal trial would cut deeply into the guarantee of due process
of law and gravely impair the basic function of the courts. A Presidents
acknowledged need for confidentiality in the communications of his office is
general in nature, whereas the constitutional need for production of relevant
evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of
justice. Without access to specific facts a criminal prosecution may be totally
frustrated. The Presidents broad interest in confidentiality of communications will
not be vitiated by disclosure of a limited number of conversations preliminarily
shown to have some bearing on the pending criminal cases. (Emphasis, italics and
underscoring supplied)

Similarly, Senate Select Committee v. Nixon,[51] which involved a claim of

the presidential communications privilege against the subpoena duces tecum of a
Senate committee, spoke of the need to balance such claim with the duty of
Congress to perform its legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed to
ensure that the President and those upon whom he directly relies in the

performance of his duties could continue to work under a general assurance that
their deliberations would remain confidential. So long as the presumption that
the public interest favors confidentiality can be defeated only by astrong
showing of need by another institution of government- a showing that the
responsibilities of that institution cannot responsibly be fulfilled without
access to records of the President's deliberations- we believed in Nixon
v. Sirica, and continue to believe, that the effective functioning of the presidential
office will not be impaired. x x x
xxxx
The sufficiency of the Committee's showing of need has come to depend,
therefore, entirely on whether the subpoenaed materials are critical to the
performance of its legislative functions. x x x (Emphasis and underscoring
supplied)

In re Sealed Case[52] involved a claim of the deliberative process and presidential

communications privileges against a subpoena duces tecum of a grand jury. On the
claim of deliberative process privilege, the court stated:
The deliberative process privilege is a qualified privilege and can be
overcome by a sufficient showing of need. This need determination is to be
made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative
process privilege] is asserted the district court must undertake a fresh balancing of
the competing interests," taking into account factors such as "the relevance of
the evidence," "the availability of other evidence," "the seriousness of the
litigation," "the role of the government," and the "possibility of future
timidity by government employees. x x x (Emphasis, italics and underscoring
supplied)

Petitioners have failed to present the strong and sufficient showing of need referred
to in the immediately cited cases. The arguments they proffer to establish their
entitlement to the subject documents fall short of this standard.
Petitioners go on to assert that the non-involvement of the Filipino people in the
JPEPA negotiation process effectively results in the bargaining away of their
economic and property rights without their knowledge and participation, in
violation of the due process clause of the Constitution. They claim, moreover, that
it is essential for the people to have access to the initial offers exchanged during
the negotiations since only through such disclosure can their constitutional right to

effectively participate in decision-making be brought to life in the context of

international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the
JPEPA negotiations is a question of fact which this Court need not resolve. Suffice
it to state that respondents had presented documents purporting to show that public
consultations were conducted on the JPEPA. Parenthetically, petitioners consider
these alleged consultations as woefully selective and inadequate.[53]
AT ALL EVENTS, since it is not disputed that the offers exchanged by the
Philippine and Japanese representatives have not been disclosed to the public, the
Court shall pass upon the issue of whether access to the documents bearing on
them is, as petitioners claim, essential to their right to participate in decisionmaking.
The case for petitioners has, of course, been immensely weakened by the
disclosure of the full text of the JPEPA to the public since September 11, 2006,
even as it is still being deliberated upon by the Senate and, therefore, not yet
binding on the Philippines. Were the Senate to concur with the validity of the
JPEPA at this moment, there has already been, in the words of PMPF
v. Manglapus, ample opportunity for discussion before [the treaty] is approved.
The text of the JPEPA having been published, petitioners have failed to convince
this Court that they will not be able to meaningfully exercise their right to
participate in decision-making unless the initial offers are also published.
It is of public knowledge that various non-government sectors and private citizens
have already publicly expressed their views on the JPEPA, their comments not
being limited to general observations thereon but on its specific
provisions. Numerous articles and statements critical of the JPEPA have been
posted on the Internet.[54] Given these developments, there is no basis for
petitioners claim that access to the Philippine and Japanese offers is essential to the
exercise of their right to participate in decision-making.
Petitioner-members of the House of Representatives additionally anchor
their claim to have a right to the subject documents on the basis of Congress
inherent power to regulate commerce, be it domestic or international. They allege
that Congress cannot meaningfully exercise the power to regulate international
trade agreements such as the JPEPA without being given copies of the initial offers
exchanged during the negotiations thereof. In the same vein, they argue that the

President cannot exclude Congress from the JPEPA negotiations since whatever
power and authority the President has to negotiate international trade agreements is
derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of
the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.[55]
The subject of Article VI Section 28(2) of the Constitution is not the power
to negotiate treaties and international agreements, but the power to fix tariff rates,
import and export quotas, and other taxes. Thus it provides:
(2) The Congress may, by law, authorize the President to fix within specified
limits, and subject to such limitations and restrictions as it may impose, tariff
rates, import and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of the
Government.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21

of Article VII the article on the Executive Department which states:
No treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the Members of the Senate.

The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to

the President, being the sole organ of the nation in its external relations, was
echoed in BAYAN v. Executive Secretary[56] where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the President,
as head of State, is the sole organ and authority in the external affairs of the
country. In many ways, the President is the chief architect of the nation's
foreign policy; his "dominance in the field of foreign relations is (then)
conceded." Wielding vast powers and influence, his conduct in the external
affairs of the nation, as Jefferson describes, is executive altogether.
As regards the power to enter into treaties or international agreements, the
Constitution vests the same in the President, subject only to the concurrence
of at least two thirds vote of all the members of the Senate. In this light, the
negotiation of the VFA and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the lawful exercise
of his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude,

and Congress itself is powerless to invade

original; emphasis and underscoring supplied)

it. x x x (Italics

in

the

The same doctrine was reiterated even more recently in Pimentel v. Executive
Secretary[57] where the Court ruled:
In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of foreign relations. In the
realm of treaty-making, the President has the sole authority to negotiate with
other states.
Nonetheless, while the President has the sole authority to negotiate and enter
into treaties, the Constitution provides a limitation to his power by requiring
the concurrence of 2/3 of all the members of the Senate for the validity of the
treaty entered into by him. x x x (Emphasis and underscoring supplied)

While the power then to fix tariff rates and other taxes clearly belongs to Congress,
and is exercised by the President only by delegation of that body, it has long been
recognized that the power to enter into treaties is vested directly and exclusively in
the President, subject only to the concurrence of at least two-thirds of all the
Members of the Senate for the validity of the treaty. In this light, the authority of
the President to enter into trade agreements with foreign nations provided under
P.D. 1464[58] may be interpreted as an acknowledgment of a power already
inherent in its office. It may not be used as basis to hold the President or its
representatives accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the Presidents power to enter into treaties is
unlimited but for the requirement of Senate concurrence, since the President must
still ensure that all treaties will substantively conform to all the relevant provisions
of the Constitution.
It follows from the above discussion that Congress, while possessing vast
legislative powers, may not interfere in the field of treaty negotiations. While
Article VII, Section 21 provides for Senate concurrence, such pertains only to the
validity of the treaty under consideration, not to the conduct of negotiations
attendant to its conclusion. Moreover, it is not even Congress as a whole that has

been given the authority to concur as a means of checking the treaty-making power
of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens,
petitioners-members of the House of Representatives fail to present a sufficient
showing of need that the information sought is critical to the performance of the
functions of Congress, functions that do not include treaty-negotiation.
Respondents alleged failure to timely claim executive privilege
On respondents invocation of executive privilege, petitioners find the same
defective, not having been done seasonably as it was raised only in their Comment
to the present petition and not during the House Committee hearings.
That respondents invoked the privilege for the first time only in their
Comment to the present petition does not mean that the claim of privilege should
not be credited.Petitioners position presupposes that an assertion of the privilege
should have been made during the House Committee investigations, failing which
respondents are deemed to have waived it.
When
the
House
Committee
and
petitionerCongressman Aguja requested respondents for copies of the documents subject of
this case, respondents replied that the negotiations were still on-going and that the
draft of the JPEPA would be released once the text thereof is settled and
complete. There was no intimation that the requested copies are confidential in
nature by reason of public policy. The response may not thus be deemed a claim of
privilege by the standards of Senate v. Ermita, which recognizes as claims of
privilege only those which are accompanied by precise and certain reasons for
preserving the confidentiality of the information being sought.
Respondents failure to claim the privilege during the House Committee hearings
may not, however, be construed as a waiver thereof by the Executive branch. As
the immediately preceding paragraph indicates, what respondents received from
the House Committee and petitioner-Congressman Aguja were mere requests for
information. And as priorlystated, the House Committee itself refrained from
pursuing its earlier resolution to issue a subpoena duces tecum on account of then
Speaker Jose de Venecias alleged request to Committee Chairperson
Congressman Teves to hold the same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing
subpoenas to executive officials out of respect for their office until resort to it

becomes necessary, the fact remains that such requests are not a compulsory
process. Being mere requests, they do not strictly call for an assertion of executive
privilege.
The privilege is an exemption to Congress power of inquiry.[59] So long as
Congress itself finds no cause to enforce such power, there is no strict necessity to
assert the privilege. In this light, respondents failure to invoke the privilege during
the House Committee investigations did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing in respondents
Comment to this petition fails to satisfy in full the requirement laid down in Senate
v. Ermitathat the claim should be invoked by the President or through the
Executive Secretary by order of the President.[60] Respondents claim of privilege is
being sustained, however, its flaw notwithstanding, because of circumstances
peculiar to the case.
The assertion of executive privilege by the Executive Secretary, who is one of the
respondents herein, without him adding the phrase by order of the President, shall
be considered as partially complying with the requirement laid down in Senate
v. Ermita. The requirement that the phrase by order of the President should
accompany the Executive Secretarys claim of privilege is a new rule laid down for
the first time in Senate v. Ermita, which was not yet final and executory at the time
respondents filed their Comment to the petition. [61] A strict application of this
requirement would thus be unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice lies a genuine zeal
to protect our peoples right to information against any abuse of executive
privilege. It is a zeal that We fully share.
The Court, however, in its endeavor to guard against the abuse of executive
privilege, should be careful not to veer towards the opposite extreme, to the point
that it would strike down as invalid even a legitimate exercise thereof.
We respond only to the salient arguments of the Dissenting Opinion which
have not yet been sufficiently addressed above.
1. After its historical discussion on the allocation of power over international trade
agreements in the United States, the dissent concludes that it will be turning

somersaults with history to contend that the President is the sole organ for external
relations in that jurisdiction. With regard to this opinion, We make only the
following observations:
There is, at least, a core meaning of the phrase sole organ of the nation in its
external relations which is not being disputed, namely, that the power
to directly negotiate treaties and international agreements is vested by our
Constitution only in the Executive. Thus, the dissent states that Congress has the
power to regulate commerce with foreign nationsbut does not have the power to
negotiate international agreements directly.[62]
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of Representatives, by
asking for the subject JPEPA documents, are not seeking to directly participate in
the negotiations of the JPEPA, hence, they cannot be prevented from gaining
access to these documents.
On the other hand, We hold that this is one occasion where the following ruling
in Agan v. PIATCO[63] and in other cases both before and since should be applied:
This Court has long and consistently adhered to the legal maxim that those
that cannot be done directly cannot be done indirectly. To declare the PIATCO
contracts valid despite the clear statutory prohibition against a direct government
guarantee would not only make a mockery of what the BOT Law seeks to
prevent -- which is to expose the government to the risk of incurring a monetary
obligation resulting from a contract of loan between the project proponent and its
lenders and to which the Government is not a party to -- but would also render
the BOT Law useless for what it seeks to achieve - to make use of the resources
of the private sector in the financing, operation and maintenance of infrastructure
and development projects which are necessary for national growth and
development but which the government, unfortunately, could ill-afford to finance
at this point in time.[64]

Similarly, while herein petitioners-members of the House of Representatives may

not have been aiming to participate in the negotiations directly, opening the JPEPA
negotiations to their scrutiny even to the point of giving them access to the offers
exchanged between the Japanese and Philippine delegations would have made a
mockery of what the Constitution sought to prevent and rendered it useless for
what it sought to achieve when it vested the power of direct negotiation solely with
the President.

What the U.S. Constitution sought to prevent and aimed to achieve in defining the
treaty-making power of the President, which our Constitution similarly defines,
may be gathered from Hamiltons explanation of why the U.S. Constitution
excludes the House of Representatives from the treaty-making process:
x x x The fluctuating, and taking its future increase into account, the
multitudinous composition of that body, forbid us to expect in it those qualities
which are essential to the proper execution of such a trust. Accurate and
comprehensive knowledge of foreign politics; a steady and systematic adherence
to the same views; a nice and uniform sensibility to national character,
decision,secrecy and dispatch; are incompatible with a body so variable and so
numerous. The very complication of the business by introducing a necessity of the
concurrence of so many different bodies, would of itself afford a solid
objection. The greater frequency of the calls upon the house of representatives,
and the greater length of time which it would often be necessary to keep them
together when convened, to obtain their sanction in the progressive stages of a
treaty, would be source of so great inconvenience and expense, as alone ought to
condemn the project.[65]

These considerations a fortiori apply in this jurisdiction, since the Philippine

Constitution, unlike that of the U.S., does not even grant the Senate the power to
advise the Executive in the making of treaties, but only vests in that body the
power to concur in the validity of the treaty after negotiations have been
concluded.[66] Much less, therefore, should it be inferred that the House of
Representatives has this power.
Since allowing petitioner-members of the House of Representatives access to the
subject JPEPA documents would set a precedent for future negotiations, leading to
the contravention of the public interests articulated above which the Constitution
sought to protect, the subject documents should not be disclosed.
2. The dissent also asserts that respondents can no longer claim the
diplomatic secrets privilege over the subject JPEPA documents now that
negotiations have been concluded, since their reasons for nondisclosure cited in the
June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply
only for as long as the negotiations were still pending;
In their Comment, respondents contend that the negotiations of the
representatives of the Philippines as well as of Japan must be allowed to explore
alternatives in the course of the negotiations in the same manner as judicial
deliberations and working drafts of opinions are accorded strict
confidentiality. That respondents liken the documents involved in the JPEPA

negotiations to judicial deliberations and working drafts of opinions evinces,

by itself, that they were claiming confidentiality not only until, but even after,
the conclusion of the negotiations.
Judicial deliberations do not lose their confidential character once a decision has
been promulgated by the courts. The same holds true with respect to working
drafts of opinions, which are comparable to intra-agency recommendations. Such
intra-agency recommendations are privileged even after the position under
consideration by the agency has developed into a definite proposition, hence, the
rule in this jurisdiction that agencies have the duty to disclose only definite
propositions, and not the inter-agency and intra-agency communications during the
stage when common assertions are still being formulated.[67]
3. The dissent claims that petitioner-members of the House of
Representatives have sufficiently shown their need for the same documents to
overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue
its earlier intention to subpoena the documents. This strongly undermines the
assertion that access to the same documents by the House Committee is critical to
the performance of its legislative functions. If the documents were indeed critical,
the House Committee should have, at the very least, issued
a subpoena duces tecum or, like what the Senate did in Senate v. Ermita, filed the
present petition as a legislative body, rather than leaving it to the discretion of
individual Congressmen whether to pursue an action or not. Such acts would have
served as strong indicia that Congress itself finds the subject information to be
critical to its legislative functions.
Further, given that respondents have claimed executive privilege, petitionermembers of the House of Representatives should have, at least, shown how its lack
of access to the Philippine and Japanese offers would hinder the intelligent crafting
of legislation. Mere assertion that the JPEPA covers a subject matter over
which Congress has the power to legislate would not suffice. As Senate Select
Committee v. Nixon[68] held, the showing required to overcome the presumption
favoring confidentiality turns, not only on the nature and appropriateness of the
function in the performance of which the material was sought, but also the degree
to which the material was necessary to its fulfillment.This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and
attachments was published, petitioner-members of the House of Representatives

have been free to use it for any legislative purpose they may see fit. Since such
publication, petitioners need, if any, specifically for the Philippine and Japanese
offers leading to the final version of the JPEPA, has become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA
documents, the dissent contends that the Executive has failed to show how
disclosing them afterthe conclusion of negotiations would impair the performance
of
its
functions. The
contention,
with
due
respect,
misplaces
the onus probandi. While, in keeping with the general presumption of
transparency, the burden is initially on the Executive to provide precise and certain
reasons for upholding its claim of privilege, once the Executive is able to show that
the documents being sought are covered by a recognized privilege, the burden
shifts to the party seeking information to overcome the privilege by a strong
showing of need.
When it was thus established that the JPEPA documents are covered by the
privilege for diplomatic negotiations pursuant to PMPF v. Manglapus, the
presumption arose that their disclosure would impair the performance of executive
functions. It was then incumbent on petitioner- requesting parties to show that they
have a strong need for the information sufficient to overcome the privilege. They
have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that he is
claiming the privilege by order of the President, the same may not be strictly
applied to the privilege claim subject of this case.
When the Court in Senate v. Ermita limited the power of invoking the privilege to
the President alone, it was laying down a new rule for which there is no
counterpart even in theUnited States from which the concept of executive privilege
was adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of
Justice,[69] citing In re Sealed Case,[70] the issue of whether a President must
personally invoke the [presidential communications] privilege remains an open
question. U.S. v. Reynolds,[71] on the other hand, held that [t]here must be a formal
claim of privilege, lodged by the head of the department which has control over the
matter, after actual personal consideration by that officer.
The rule was thus laid down by this Court, not in adherence to any established
precedent, but with the aim of preventing the abuse of the privilege in light of its
highly exceptional nature. The Courts recognition that the Executive Secretary also
bears the power to invoke the privilege, provided he does so by order of the

President, is meant to avoid laying down too rigid a rule, the Court being aware
that it was laying down a new restriction on executive privilege. It is with the same
spirit that the Court should not be overly strict with applying the same rule in this
peculiar instance, where the claim of executive privilege occurred before the
judgment in Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the
dissent implies that the Court therein erred in citing US v. Curtiss Wright[72] and the
book entitled The New American Government and Its Work [73] since these
authorities, so the dissent claims, may not be used to calibrate the importance of
the right to information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the
executive and legislative branches of government, the factual setting thereof was
different from that of PMPF v. Manglapus which involved a collision between
governmental power over the conduct of foreign affairs and the citizens right to
information.
That the Court could freely cite Curtiss-Wright a case that upholds the
secrecy of diplomatic negotiations against congressional demands for information
in the course of laying down a ruling on the public right to information only serves
to underscore the principle mentioned earlier that the privileged character accorded
to diplomatic negotiations does not ipso facto lose all force and effect simply
because the same privilege is now being claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private
citizens and not an executive-legislative conflict, but so did Chavez v.
PEA[74] which held that the [publics] right to information . . . does not extend to
matters recognized as privileged information under the separation of powers. What
counts as privileged information in an executive-legislative conflict is thus also
recognized as such in cases involving the publics right to information.
Chavez v. PCGG[75] also involved the publics right to information, yet the
Court recognized as a valid limitation to that right the same privileged information
based on separation of powers closed-door Cabinet meetings, executive sessions of
either house of Congress, and the internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether
in the context of an executive-legislative conflict or a citizens demand for

information, as closely intertwined, such that the principles applicable to one are
also applicable to the other.
The reason is obvious. If the validity of claims of privilege were to be assessed by
entirely different criteria in each context, this may give rise to the absurd
result whereCongress would be denied access to a particular information because
of a claim of executive privilege, but the general public would have access to the
same information, the claim of privilege notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court adopts the clear
and present danger test for the assessment of claims of privilege
against citizens demands for information. If executive information, when
demanded by a citizen, is privileged only when there is a clear and present danger
of a substantive evil that the State has a right to prevent, it would be very difficult
for the Executive to establish the validity of its claim in each instance. In contrast,
if the demand comes from Congress, the Executive merely has to show that the
information is covered by a recognized privilege in order to shift the burden on
Congress to present a strong showing of need. This would lead to a situation
where it would be more difficult for Congress to access executive
information than it would be for private citizens.
We maintain then that when the Executive has already shown that an information is
covered by executive privilege, the party demanding the information must present
a strong showing of need, whether that party is Congress or a private citizen.
The rule that the same showing of need test applies in both these contexts,
however, should not be construed as a denial of the importance of analyzing the
context in which an executive privilege controversy may happen to be
placed. Rather, it affirms it, for it means that the specific need being shown by the
party seeking information in every particularinstance is highly significant in
determining whether to uphold a claim of privilege. This need is, precisely, part
of the context in light of which every claim of privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied
to executive privilege controversies across different contexts, the Court in PMPF
v. Manglapusdid not err when it cited the Curtiss-Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American
Government and Its Work could not have taken into account the expanded statutory
right to information in the FOIA assumes that the observations in that book in

support of the confidentiality of treaty negotiations would be different had it been

written after the FOIA.Such assumption is, with due respect, at best, speculative.
As to the claim in the dissent that [i]t is more doubtful if the same book be used to
calibrate the importance of the right of access to information in the Philippine
setting considering its elevation as a constitutional right, we submit that the
elevation of such right as a constitutional right did not set it free from the
legitimate restrictions of executive privilege which is itself constitutionally-based.
[76]
Hence, the comments in that book which were cited in PMPF
v. Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used need as a test to uphold
or allow inroads into rights guaranteed under the Constitution. With due respect,
we assert otherwise. The Court has done so before, albeit without using the term
need.
In executive privilege controversies, the requirement that parties present a
sufficient showing of need only means, in substance, that they should show a
public interest in favor of disclosure sufficient in degree to overcome the claim of
privilege.[77] Verily, the Court in such cases engages in a balancing of
interests. Such a balancing of interests is certainly not new in constitutional
adjudication involving fundamental rights. Secretary of Justice v. Lantion,[78] which
was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the clear and
present danger test to the present controversy, but the balancing test, there seems to
be no substantial dispute between the position laid down in this ponencia and that
reflected in the dissent as to what test to apply. It would appear that the only
disagreement is on the results of applying that test in this instance.
The dissent, nonetheless, maintains that it suffices that information is of public
concern for it to be covered by the right, regardless of the publics need for the
information, and that the same would hold true even if they simply want to know it
because it interests them. As has been stated earlier, however, there is no dispute
that the information subject of this case is a matter of public concern. The Court
has earlier concluded that it is a matter of public concern, not on the basis of any
specific need shown by petitioners, but from the very nature of the JPEPA as an
international trade agreement.

However, when the Executive has as in this case invoked the privilege, and it has
been established that the subject information is indeed covered by the privilege
being claimed, can a party overcome the same by merely asserting that the
information being demanded is a matter of public concern, without any further
showing required? Certainly not, for that would render the doctrine of executive
privilege of no force and effect whatsoever as a limitation on the right to
information, because then the sole test in such controversies would be whether an
information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by
disclosing the documents of the JPEPA negotiations, the Philippine government
runs the grave risk of betraying the trust reposed in it by the Japanese
representatives, indeed, by the Japanese government itself. How would the
Philippine government then explain itself when that happens? Surely, it cannot
bear to say that it just had to release the information because certain persons
simply wanted to know it because it interests them.
Thus, the Court holds that, in determining whether an information is covered
by the right to information, a specific showing of need for such information is not a
relevant consideration, but only whether the same is a matter of public
concern. When, however, the government has claimed executive privilege, and it
has established that the information is indeed covered by the same, then the party
demanding it, if it is to overcome the privilege, must show that that the information
is vital, not simply for the satisfaction of its curiosity, but for its ability to
effectively and reasonably participate in social, political, and economic decisionmaking.[79]
7. The dissent maintains that [t]he treaty has thus entered the ultimate stage where
the people can exercise their right to participate in the discussion whether the
Senate should concur in its ratification or not. (Emphasis supplied) It adds that this
right will be diluted unless the people can have access to the subject JPEPA
documents. What, to the dissent, is a dilution of the right to participate in decisionmaking is, to Us, simply a recognition of the qualified nature of the publics right to
information. It is beyond dispute that the right to information is not absolute and
that the doctrine of executive privilege is a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in decisionmaking would be diluted, We reiterate that our people have been exercising their
right to participate in the discussion on the issue of the JPEPA, and they have been
able to articulate their different opinions without need of access to the JPEPA
negotiation documents.

Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select
Committee case, and In re Sealed Case, are similarly applicable to the present
controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was
there addressing only the Presidents assertion of privilege in the context of a
criminal trial, not a civil litigation nor a congressional demand for
information. What this caveat means, however, is only that courts must be careful
not to hastily apply the ruling therein to other contexts. It does not, however,
absolutely mean that the principles applied in that case may never be applied in
such contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of
executive privilege in contexts other than a criminal trial, as in the case of Nixon v.
Administrator of General Services[80] which involved former President Nixons
invocation of executive privilege to challenge the constitutionality of the
Presidential Recordings and Materials Preservation Act [81] and the abovementioned In re Sealed Case which involved a claim of privilege against
a subpoena duces tecum issued in a grand jury investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in
the other cases already mentioned, We are merely affirming what the Chief Justice
stated in his Dissenting Opinion in Neri v. Senate Committee on Accountability[82] a
case involving an executive-legislative conflict over executive privilege. That
dissenting opinion stated that, while Nixon was not concerned with the balance
between the Presidents generalized interest in confidentiality and congressional
demands for information, [n]onetheless the [U.S.] Court laid down principles
and procedures that can serve as torch lights to illumine us on the scope and
use of Presidential communication privilege in the case at bar.[83] While the
Court was divided in Neri, this opinion of the Chief Justice was not among the
points of disagreement, and We similarly hold now that the Nixon case is a useful
guide in the proper resolution of the present controversy, notwithstanding the
difference in context.
Verily, while the Court should guard against the abuse of executive privilege,
it should also give full recognition to the validity of the privilege whenever it is
claimed within the proper bounds of executive power, as in this
case. Otherwise, the Court would undermine its own credibility, for it would be

perceived as no longer aiming to strike a balance, but seeking merely to water

down executive privilege to the point of irrelevance.
Conclusion
To recapitulate, petitioners demand to be furnished with a copy of the full text of
the JPEPA has become moot and academic, it having been made accessible to the
public sinceSeptember 11, 2006. As for their demand for copies of the Philippine
and Japanese offers submitted during the JPEPA negotiations, the same must be
denied, respondents claim of executive privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution
in PMPF v. Manglapus on September 13, 1988, been recognized as privileged in
this jurisdiction and the reasons proffered by petitioners against the application of
the ruling therein to the present case have not persuaded the Court. Moreover,
petitioners both private citizens and members of the House of Representatives have
failed to present a sufficient showing of need to overcome the claim of privilege in
this case.
That the privilege was asserted for the first time in respondents Comment to the
present petition, and not during the hearings of the House Special Committee on
Globalization, is of no moment, since it cannot be interpreted as a waiver of the
privilege on the part of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as
departing from the ruling in Senate v. Ermita that executive privilege should be
invoked by the President or through the Executive Secretary by order of the
President.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES- SANTIAGO

Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

RUBEN T. REYES
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION
Associate Justice

ROMULO L. NERI, petitioner,

vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND
INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE,
AND SENATE COMMITTEE ON NATIONAL DEFENSE AND
SECURITY, respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres to the
Office of the President. It exists to protect public interest, not to benefit a
particular public official. Its purpose, among others, is to assure that the nation
will receive the benefit of candid, objective and untrammeled communication
and exchange of information between the President and his/her advisers in
the process of shaping or forming policies and arriving at decisions in the
exercise of the functions of the Presidency under the Constitution. The
confidentiality of the Presidents conversations and correspondence is not
unique. It is akin to the confidentiality of judicial deliberations. It possesses the
same value as the right to privacy of all citizens and more, because it is
dictated by public interest and the constitutionally ordained separation of
governmental powers.
In these proceedings, this Court has been called upon to exercise its power of
review and arbitrate a hotly, even acrimoniously, debated dispute between the

Courts co-equal branches of government. In this task, this Court should

neither curb the legitimate powers of any of the co-equal and coordinate
branches of government nor allow any of them to overstep the boundaries set
for it by our Constitution. The competing interests in the case at bar are the
claim of executive privilege by the President, on the one hand, and the
respondent Senate Committees assertion of their power to conduct legislative
inquiries, on the other. The particular facts and circumstances of the present
case, stripped of the politically and emotionally charged rhetoric from both
sides and viewed in the light of settled constitutional and legal doctrines,
plainly lead to the conclusion that the claim of executive privilege must be
upheld.
Assailed in this motion for reconsideration is our Decision dated March 25,
2008 (the "Decision"), granting the petition for certiorari filed by petitioner
Romulo L. Neri against the respondent Senate Committees on Accountability
of Public Officers and Investigations,1 Trade and Commerce,2 and National
Defense and Security (collectively the "respondent Committees").3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees
and testified for about eleven (11) hours on matters concerning the National
Broadband Project (the "NBN Project"), a project awarded by the Department
of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner disclosed that then
Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered
him P200 Million in exchange for his approval of the NBN Project. He further
narrated that he informed President Gloria Macapagal Arroyo ("President
Arroyo") of the bribery attempt and that she instructed him not to accept the
bribe. However, when probed further on President Arroyo and petitioners
discussions relating to the NBN Project, petitioner refused to answer, invoking
"executive privilege." To be specific, petitioner refused to answer questions on:
(a) whether or not President Arroyo followed up the NBN Project,4 (b) whether
or not she directed him to prioritize it,5 and (c) whether or not she directed him
to approve it.6
Respondent Committees persisted in knowing petitioners answers to these
three questions by requiring him to appear and testify once more on
November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R.
Ermita wrote to respondent Committees and requested them to dispense with
petitioners testimony on the ground of executive privilege.7 The letter of
Executive Secretary Ermita pertinently stated:

Following the ruling in Senate v. Ermita, the foregoing questions fall

under conversations and correspondence between the President and
public officials which are considered executive privilege (Almonte v.
Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July
9, 2002). Maintaining the confidentiality of conversations of the
President is necessary in the exercise of her executive and policy
decision making process. The expectation of a President to the
confidentiality of her conversations and correspondences, like the value
which we accord deference for the privacy of all citizens, is the
necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. Disclosure
of conversations of the President will have a chilling effect on the
President, and will hamper her in the effective discharge of her duties
and responsibilities, if she is not protected by the confidentiality of her
conversations.
The context in which executive privilege is being invoked is that the
information sought to be disclosed might impair our diplomatic as well
as economic relations with the Peoples Republic of China. Given the
confidential nature in which these information were conveyed to the
President, he cannot provide the Committee any further details of these
conversations, without disclosing the very thing the privilege is designed
to protect.
In light of the above considerations, this Office is constrained to invoke
the settled doctrine of executive privilege as refined in Senate v. Ermita,
and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the
subject in an unprecedented 11-hour hearing, wherein he has answered
all questions propounded to him except the foregoing questions
involving executive privilege, we therefore request that his testimony on
20 November 2007 on the ZTE / NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent
Committees upon orders of the President invoking executive privilege. On
November 22, 2007, the respondent Committees issued the show-cause letter
requiring him to explain why he should not be cited in contempt. On
November 29, 2007, in petitioners reply to respondent Committees, he
manifested that it was not his intention to ignore the Senate hearing and that
he thought the only remaining questions were those he claimed to be covered
by executive privilege. He also manifested his willingness to appear and

testify should there be new matters to be taken up. He just requested that he
be furnished "in advance as to what else" he "needs to clarify."
Respondent Committees found petitioners explanations unsatisfactory.
Without responding to his request for advance notice of the matters that he
should still clarify, they issued the Order dated January 30, 2008; In Re: P.S.
Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and
Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of
respondent Committees and ordering his arrest and detention at the Office of
the Senate Sergeant-at-Arms until such time that he would appear and give
his testimony.
On the same date, petitioner moved for the reconsideration of the above
Order.8 He insisted that he had not shown "any contemptible conduct worthy
of contempt and arrest." He emphasized his willingness to testify on new
matters, but respondent Committees did not respond to his request for
advance notice of questions. He also mentioned the petition for certiorari he
previously filed with this Court on December 7, 2007. According to him, this
should restrain respondent Committees from enforcing the order dated
January 30, 2008 which declared him in contempt and directed his arrest and
detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent
Application for TRO/Preliminary Injunction) on February 1, 2008. In the Courts
Resolution dated February 4, 2008, the parties were required to observe the
status quo prevailing prior to the Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two
grounds: first, the communications elicited by the three (3) questions were
covered by executive privilege; and second, respondent Committees
committed grave abuse of discretion in issuing the contempt order. Anent the
first ground, we considered the subject communications as falling under
the presidential communications privilege because (a) they related to a
quintessential and non-delegable power of the President, (b) they were
received by a close advisor of the President, and (c) respondent Committees
failed to adequately show a compelling need that would justify the limitation of
the privilege and the unavailability of the information elsewhere by an
appropriate investigating authority. As to the second ground, we found that
respondent Committees committed grave abuse of discretion in issuing the
contempt order because (a) there was a valid claim of executive privilege, (b)
their invitations to petitioner did not contain the questions relevant to the
inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding

that led to their issuance of the contempt order, (d) they violated Section 21,
Article VI of the Constitution because their inquiry was not in accordance with
the "duly published rules of procedure," and (e) they issued the contempt
order arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for
reconsideration, anchored on the following grounds:
I
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS
NO DOUBT THAT THE ASSAILED ORDERS WERE ISSUED BY
RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF
THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR
OVERSIGHT FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE
CAN BE NO PRESUMPTION THAT THE INFORMATION WITHHELD
IN THE INSTANT CASE IS PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS
NO FACTUAL OR LEGAL BASIS TO HOLD THAT THE
COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3)
QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE,
CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH
EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE STATE
SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT
IN THE DECISION IS APPLIED, THERE IS NO SHOWING THAT THE
ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE
ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A
COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF THE
INFORMATION SOUGHT.

D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE

INSTANT CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS
PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO
INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC
ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM
OF EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURTS DECISION,
RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF DISCRETION
IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING
THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN
THE INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED
REQUIREMENTS LAID DOWN INSENATE V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN
ACCORDANCE WITH THEIR INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS
UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION
REQUIRING THAT ITS RULES OF PROCEDURE BE DULY
PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE
COURT CONSIDERED THE OSGS INTERVENTION ON THIS ISSUE
WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO
COMMENT.
E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER IS NOT
ARBITRARY OR PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating
and distorting the Decision of this Court. He avers that there is nothing in it
that prohibits respondent Committees from investigating the NBN Project or
asking him additional questions. According to petitioner, the Court merely
applied the rule on executive privilege to the facts of the case. He further
submits the following contentions: first, the assailed Decision did not reverse

the presumption against executive secrecy laid down in Senate v.

Ermita; second, respondent Committees failed to overcome the presumption
of executive privilege because it appears that they could legislate even
without the communications elicited by the three (3) questions, and they
admitted that they could dispense with petitioners testimony if certain NEDA
documents would be given to them; third, the requirement of specificity
applies only to the privilege for State, military and diplomatic secrets, not to
the necessarily broad and all-encompassing presidential communications
privilege; fourth, there is no right to pry into the Presidents thought processes
or exploratory exchanges; fifth, petitioner is not covering up or hiding anything
illegal; sixth, the Court has the power and duty to annul the Senate
Rules; seventh, the Senate is not a continuing body, thus the failure of the
present Senate to publish its Rules of Procedure Governing Inquiries in Aid of
Legislation (Rules) has a vitiating effect on them; eighth, the requirement for a
witness to be furnished advance copy of questions comports with due process
and the constitutional mandate that the rights of witnesses be respected;
and ninth, neither petitioner nor respondent has the final say on the matter of
executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no
categorical pronouncement from the Court that the assailed Orders were
issued by respondent Committees pursuant to their oversight function; hence,
there is no reason for them "to make much" of the distinction between
Sections 21 and 22, Article VI of the Constitution; (2) presidential
communications enjoy a presumptive privilege against disclosure as earlier
held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10;
(3) the communications elicited by the three (3) questions are covered by
executive privilege, because all the elements of the presidential
communications privilege are present; (4) the subpoena ad
testificandum issued by respondent Committees to petitioner is fatally
defective under existing law and jurisprudence; (5) the failure of the present
Senate to publish its Rules renders the same void; and (6) respondent
Committees arbitrarily issued the contempt order.
Incidentally, respondent Committees objection to the Resolution dated March
18, 2008 (granting the Office of the Solicitor Generals Motion for Leave to
Intervene and to Admit Attached Memorandum) only after the promulgation of
the Decision in this case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the
opposing parties are as follows:

(1) whether or not there is a recognized presumptive presidential

communications privilege in our legal system;
(2) whether or not there is factual or legal basis to hold that the
communications elicited by the three (3) questions are covered by
executive privilege;
(3) whether or not respondent Committees have shown that the
communications elicited by the three (3) questions are critical to the
exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of
discretion in issuing the contempt order.
We shall discuss these issues seriatim.
I
There Is a Recognized Presumptive
Presidential Communications Privilege
Respondent Committees ardently argue that the Courts declaration that
presidential communications are presumptively privileged reverses the
"presumption" laid down in Senate v. Ermita11 that "inclines heavily against
executive secrecy and in favor of disclosure." Respondent Committees then
claim that the Court erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in
favor of thepresidential communications privilege is mentioned and
adopted in our legal system. That is far from the truth. The Court, in the earlier
case of Almonte v. Vasquez,12 affirmed that the presidential
communications privilege is fundamental to the operation of government
and inextricably rooted in the separation of powers under the Constitution.
Even Senate v. Ermita,13 the case relied upon by respondent Committees,
reiterated this concept. There, the Court enumerated the cases in which the
claim of executive privilege was recognized, among them Almonte v.
Chavez, Chavez v. Presidential Commission on Good Government
(PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that
"there are certain types of information which the government may withhold
from the public,16" that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and other
national security matters";17 and that "the right to information does not

extend to matters recognized as privileged information under the

separation of powers, by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door
Cabinet meetings."18
Respondent Committees observation that this Courts Decision reversed the
"presumption that inclines heavily against executive secrecy and in favor of
disclosure" arises from a piecemeal interpretation of the said Decision. The
Court has repeatedly held that in order to arrive at the true intent and meaning
of a decision, no specific portion thereof should be isolated and resorted to,
but the decision must be considered in its entirety.19
Note that the aforesaid presumption is made in the context of the
circumstances obtaining in Senate v. Ermita, which declared void Sections
2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent
portion of the decision in the said case reads:
From the above discussion on the meaning and scope of executive
privilege, both in the United States and in this jurisprudence, a clear
principle emerges. Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation
to certain types of information of a sensitive character. While executive
privilege is a constitutional concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and the context in which it
is made. Noticeably absent is any recognition that executive officials are
exempt from the duty to disclose information by the mere fact of being
executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure.
(Emphasis and underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v.
Ermita refers to the "exemption" being claimed by the executive officials
mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in
the Executive Branch. This means that when an executive official, who is one
of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt
from disclosure, there can be no presumption of authorization to invoke
executive privilege given by the President to said executive official, such
that the presumption in this situation inclines heavily against executive
secrecy and in favor of disclosure.

Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this

wise:
Section 2(b) in relation to Section 3 virtually provides that, once the
head of office determines that a certain information is privileged, such
determination is presumed to bear the Presidents authority and has the
effect of prohibiting the official from appearing before Congress, subject
only to the express pronouncement of the President that it is allowing
the appearance of such official. These provisions thus allow the
President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional
nature of the privilege. Executive privilege, as already discussed, is
recognized with respect to information the confidential nature of which
is crucial to the fulfillment of the unique role and responsibilities of the
executive branch, or in those instances where exemption from
disclosure is necessary to the discharge of highly important executive
responsibilities. The doctrine of executive privilege is thus premised on
the fact that certain information must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by
definition, an exemption from the obligation to disclose information, in
this case to Congress, the necessity must be of such high degree as to
outweigh the public interest in enforcing that obligation in a particular
case.
In light of this highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power to invoke the privilege. She
may of course authorize the Executive Secretary to invoke the privilege
on her behalf, in which case the Executive Secretary must state that the
authority is "By order of the President", which means that he personally
consulted with her. The privilege being an extraordinary power, it must
be wielded only by the highest official in the executive hierarchy. In other
words, the President may not authorize her subordinates to exercise
such power. There is even less reason to uphold such authorization in
the instant case where the authorization is not explicit but by mere
silence. Section 3, in relation to Section 2(b), is further invalid on this
score.
The constitutional infirmity found in the blanket authorization to invoke
executive privilege granted by the President to executive officials in Sec. 2(b)
of E.O. No. 464 does not obtain in this case.

In this case, it was the President herself, through Executive Secretary Ermita,
who invoked executive privilege on a specific matter involving an executive
agreement between the Philippines and China, which was the subject of the
three (3) questions propounded to petitioner Neri in the course of the Senate
Committees investigation. Thus, the factual setting of this case markedly
differs from that passed upon in Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present
case hews closely to the ruling in Senate v. Ermita,21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It
has been used even prior to the promulgation of the 1986 Constitution.
Being of American origin, it is best understood in light of how it has been
defined and used in the legal literature of the United States.
Schwart defines executive privilege as "the power of the Government
to withhold information from the public, the courts, and the
Congress. Similarly, Rozell defines it as "the right of the President and
high-level executive branch officers to withhold information from
Congress, the courts, and ultimately the public." x x x In this jurisdiction,
the doctrine of executive privilege was recognized by this Court in
Almonte v. Vasquez. Almonte used the term in reference to the same
privilege subject of Nixon. It quoted the following portion of the Nixon
decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his
conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, he has all the
values to which we accord deference for the privacy of all citizens and,
added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. A President and those who assist him
must be free to explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying a
presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and italics supplied)

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege

for Presidential communication," which was recognized early on in Almonte v.
Vasquez. To construe the passage inSenate v. Ermita adverted to in the
Motion for Reconsideration of respondent Committees, referring to the nonexistence of a "presumptive authorization" of an executive official, to mean
that the "presumption" in favor of executive privilege "inclines heavily against
executive secrecy and in favor of disclosure" is to distort the ruling in
the Senate v. Ermita and make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the
relationship between the Executive Department and the Legislative
Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the Presidents
subordinate officials, as follows:
When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be exempted
from this power - the President on whom executive power is vested,
hence, beyond the reach of Congress except through the power of
impeachment. It is based on he being the highest official of the
executive branch, and the due respect accorded to a co-equal branch of
governments which is sanctioned by a long-standing custom.
(Underscoring supplied)
Thus, if what is involved is the presumptive privilege of presidential
communications when invoked by the President on a matter clearly within the
domain of the Executive, the said presumption dictates that the same be
recognized and be given preference or priority, in the absence of proof of a
compelling or critical need for disclosure by the one assailing such
presumption. Any construction to the contrary will render meaningless the
presumption accorded by settled jurisprudence in favor of executive privilege.
In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations
justifying a presumptive privilege for Presidential communications."23
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege

Respondent Committees claim that the communications elicited by the three

(3) questions are not covered by executive privilege because the elements of
the presidential communications privilegeare not present.
A. The power to enter into an executive agreement is a "quintessential
and non-delegable presidential power."
First, respondent Committees contend that the power to secure a foreign loan
does not relate to a "quintessential and non-delegable presidential power,"
because the Constitution does not vest it in the President alone, but also in
the Monetary Board which is required to give its prior concurrence and to
report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not
make such power less executive. "Quintessential" is defined as the most
perfect embodiment of something, the concentrated essence of
substance.24 On the other hand, "non-delegable" means that a power or duty
cannot be delegated to another or, even if delegated, the responsibility
remains with the obligor.25 The power to enter into an executive agreement is
in essence an executive power. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence.26 Now, the fact that
the President has to secure the prior concurrence of the Monetary Board,
which shall submit to Congress a complete report of its decision before
contracting or guaranteeing foreign loans, does not diminish the executive
nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive
and judicial branches of government by no means prescribes absolute
autonomy in the discharge by each branch of that part of the governmental
power assigned to it by the sovereign people. There is the corollary doctrine of
checks and balances, which has been carefully calibrated by the Constitution
to temper the official acts of each of these three branches. Thus, by analogy,
the fact that certain legislative acts require action from the President for their
validity does not render such acts less legislative in nature. A good example is
the power to pass a law. Article VI, Section 27 of the Constitution mandates
that every bill passed by Congress shall, before it becomes a law, be
presented to the President who shall approve or veto the same. The fact that
the approval or vetoing of the bill is lodged with the President does not render
the power to pass law executive in nature. This is because the power to pass

law is generally a quintessential and non-delegable power of the Legislature.

In the same vein, the executive power to enter or not to enter into a contract to
secure foreign loans does not become less executive in nature because of
conditions laid down in the Constitution. The final decision in the exercise of
the said executive power is still lodged in the Office of the President.
B. The "doctrine of operational proximity" was laid down precisely to
limit the scope of the presidential communications privilege but, in any
case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application
of the "doctrine of operational proximity" for the reason that "it maybe
misconstrued to expand the scope of the presidential communications
privilege to communications between those who are operationally proximate
to the President but who may have "no direct communications with her."
It must be stressed that the doctrine of "operational proximity" was laid down
in In re: Sealed Case27precisely to limit the scope of the presidential
communications privilege. The U.S. court was aware of the dangers that a
limitless extension of the privilege risks and, therefore, carefully cabined its
reach by explicitly confining it to White House staff, and not to staffs of the
agencies, and then only to White House staff that has "operational proximity"
to direct presidential decision-making, thus:
We are aware that such an extension, unless carefully circumscribed to
accomplish the purposes of the privilege, could pose a significant risk of
expanding to a large swath of the executive branch a privilege that is
bottomed on a recognition of the unique role of the President. In order to
limit this risk, the presidential communications privilege should be
construed as narrowly as is consistent with ensuring that the
confidentiality of the Presidents decision-making process is adequately
protected. Not every person who plays a role in the development of
presidential advice, no matter how remote and removed from the
President, can qualify for the privilege. In particular, the privilege
should not extend to staff outside the White House in executive
branch agencies. Instead, the privilege should apply only to
communications authored or solicited and received by those members
of an immediate White House advisors staff who have broad and
significant responsibility for investigation and formulating the advice to
be given the President on the particular matter to which the
communications relate. Only communications at that level are close
enough to the President to be revelatory of his deliberations or to

pose a risk to the candor of his advisers. See AAPS, 997 F.2d at
910 (it is "operational proximity" to the President that matters in
determining whether "[t]he Presidents confidentiality interests" is
implicated).(Emphasis supplied)
In the case at bar, the danger of expanding the privilege "to a large swath of
the executive branch" (a fear apparently entertained by respondents) is
absent because the official involved here is a member of the Cabinet, thus,
properly within the term "advisor" of the President; in fact, her alter ego and a
member of her official family. Nevertheless, in circumstances in which the
official involved is far too remote, this Court also mentioned in the Decision
the organizational test laid down in Judicial Watch, Inc. v. Department of
Justice.28 This goes to show that the operational proximity test used in the
Decision is not considered conclusive in every case. In determining which test
to use, the main consideration is to limit the availability of executive privilege
only to officials who stand proximate to the President, not only by reason of
their function, but also by reason of their positions in the Executives
organizational structure. Thus, respondent Committees fear that the scope of
the privilege would be unnecessarily expanded with the use of the operational
proximity test is unfounded.
C. The Presidents claim of executive privilege is not merely based on a
generalized interest; and in balancing respondent Committees and the
Presidents clashing interests, the Court did not disregard the 1987
Constitutional provisions on government transparency, accountability
and disclosure of information.
Third, respondent Committees claim that the Court erred in upholding the
Presidents invocation, through the Executive Secretary, of executive privilege
because (a) between respondent Committees specific and demonstrated
need and the Presidents generalized interest in confidentiality, there is a need
to strike the balance in favor of the former; and (b) in the balancing of interest,
the Court disregarded the provisions of the 1987 Philippine Constitution on
government transparency, accountability and disclosure of information,
specifically, Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI,
Section 1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article XII,
Sections 9,35 21,36 and 22.37
It must be stressed that the Presidents claim of executive privilege is not
merely founded on her generalized interest in confidentiality. The Letter dated
November 15, 2007 of Executive Secretary Ermita specified presidential
communications privilege in relation to diplomatic and economic

relations with another sovereign nation as the bases for the claim. Thus,
the Letter stated:
The context in which executive privilege is being invoked is that
the information sought to be disclosed might impair our diplomatic
as well as economic relations with the Peoples Republic of China.
Given the confidential nature in which this information were conveyed to
the President, he cannot provide the Committee any further details of
these conversations, without disclosing the very thing the privilege is
designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not require the
Executive to state the reasons for the claim with such particularity as to
compel disclosure of the information which the privilege is meant to protect.
This is a matter of respect for a coordinate and co-equal department.
It is easy to discern the danger that goes with the disclosure of the Presidents
communication with her advisor. The NBN Project involves a foreign country
as a party to the agreement. It was actually a product of the meeting of minds
between officials of the Philippines and China. Whatever the President says
about the agreement - particularly while official negotiations are ongoing - are
matters which China will surely view with particular interest. There is danger in
such kind of exposure. It could adversely affect our diplomatic as well as
economic relations with the Peoples Republic of China. We reiterate the
importance of secrecy in matters involving foreign negotiations as stated
in United States v. Curtiss-Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution, and their success
must often depend on secrecy, and even when brought to a conclusion,
a full disclosure of all the measures, demands, or eventual concessions
which may have been proposed or contemplated would be extremely
impolitic, for this might have a pernicious influence on future
negotiations or produce immediate inconveniences, perhaps danger
and mischief, in relation to other powers. The necessity of such caution
and secrecy was one cogent reason for vesting the power of making
treaties in the President, with the advice and consent of the Senate, the
principle on which the body was formed confining it to a small number of
members. To admit, then, a right in the House of Representatives to
demand and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous
precedent.

US jurisprudence clearly guards against the dangers of allowing Congress

access to all papers relating to a negotiation with a foreign power. In this
jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas
G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations.
In Akbayan, the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized
in this jurisdiction. In discussing valid limitations on the right to
information, the Court in Chavez v. PCGG held that "information on
inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the
sake of national interest." Even earlier, the same privilege was upheld
in Peoples Movement for Press Freedom (PMPF) v.
Manglapus wherein the Court discussed the reasons for the privilege in
more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information
from the Presidents representatives on the state of the then on-going
negotiations of the RP-US Military Bases Agreement. The Court denied
the petition, stressing that "secrecy of negotiations with foreign
countries is not violative of the constitutional provisions of freedom of
speech or of the press nor of the freedom of access to information."
The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority
and expedition of decision which are inherent in executive
action. Another essential characteristic of diplomacy is its
confidential nature. Although much has been said about "open"
and "secret" diplomacy, with disparagement of the latter,
Secretaries of State Hughes and Stimson have clearly analyzed
and justified the practice. In the words of Mr. Stimson:
"A complicated negotiation cannot be carried through
without many, many private talks and discussion, man
to man; many tentative suggestions and
proposals. Delegates from other countries come and
tell you in confidence of their troubles at home and of
their differences with other countries and with other
delegates; they tell you of what they would do under
certain circumstances and would not do under other

circumstances If these reports should become

public who would ever trust American Delegations in
another conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284)
xxxx
There is frequent criticism of the secrecy in which
negotiation with foreign powers on nearly all subjects is
concerned. This, it is claimed, is incompatible with the
substance of democracy. As expressed by one writer, "It can be
said that there is no more rigid system of silence anywhere in the
world." (E.J. Young, Looking Behind the Censorship, J. B.
Lipincott Co., 1938) President Wilson in starting his efforts for the
conclusion of the World War declared that we must have "open
covenants, openly arrived at." He quickly abandoned his thought.
No one who has studied the question believes that such a method
of publicity is possible.In the moment that negotiations are
started, pressure groups attempt to "muscle in." An ill-timed
speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides would
quickly lead to a widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are
fully published, there is ample opportunity for discussion
before it is approved. (The New American Government and Its
Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v.
Curtiss-Wright Export Corp. that the President is the sole organ of the
nation in its negotiations with foreign countries,viz:
"x x x In this vast external realm, with its important, complicated,
delicate and manifold problems, the President alone has the
power to speak or listen as a representative of the nation.
He makes treaties with the advice and consent of the Senate; but
he alone negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to invade it. As
Marshall said in his great arguments of March 7, 1800, in the
House of Representatives, "The President is the sole organ of
the nation in its external relations, and its sole representative

with foreign nations." Annals, 6th Cong., col. 613 (Emphasis

supplied; underscoring in the original)
Considering that the information sought through the three (3) questions
subject of this Petition involves the Presidents dealings with a foreign nation,
with more reason, this Court is wary of approving the view that Congress may
peremptorily inquire into not only official, documented acts of the President
but even her confidential and informal discussions with her close advisors on
the pretext that said questions serve some vague legislative need. Regardless
of who is in office, this Court can easily foresee unwanted consequences of
subjecting a Chief Executive to unrestricted congressional inquiries done with
increased frequency and great publicity. No Executive can effectively
discharge constitutional functions in the face of intense and unchecked
legislative incursion into the core of the Presidents decision-making process,
which inevitably would involve her conversations with a member of her
Cabinet.
With respect to respondent Committees invocation of constitutional
prescriptions regarding the right of the people to information and public
accountability and transparency, the Court finds nothing in these arguments to
support respondent Committees case.
There is no debate as to the importance of the constitutional right of the
people to information and the constitutional policies on public accountability
and transparency. These are the twin postulates vital to the effective
functioning of a democratic government. The citizenry can become prey to the
whims and caprices of those to whom the power has been delegated if they
are denied access to information. And the policies on public accountability and
democratic government would certainly be mere empty words if access to
such information of public concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to
three (3) specific questions, did not in any way curb the publics right to
information or diminish the importance of public accountability and
transparency.
This Court did not rule that the Senate has no power to investigate the NBN
Project in aid of legislation. There is nothing in the assailed Decision that
prohibits respondent Committees from inquiring into the NBN Project. They
could continue the investigation and even call petitioner Neri to testify again.
He himself has repeatedly expressed his willingness to do so. Our Decision
merely excludes from the scope of respondents investigation the three (3)

questions that elicit answers covered by executive privilege and rules that
petitioner cannot be compelled to appear before respondents to answer the
said questions. We have discussed the reasons why these answers are
covered by executive privilege. That there is a recognized public interest in
the confidentiality of such information is a recognized principle in other
democratic States. To put it simply, the right to information is not an absolute
right.
Indeed, the constitutional provisions cited by respondent Committees do not
espouse an absolute right to information. By their wording, the intention of the
Framers to subject such right to the regulation of the law is unmistakable. The
highlighted portions of the following provisions show the obvious limitations on
the right to information, thus:
Article III, Sec. 7. The right of the people to information on matters of
public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as well
as to government research data used as basis for policy development,
shall be afforded the citizen, subject to such limitations as may be
provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of full public disclosure of
all its transactions involving public interest.(Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated
that there are no specific laws prescribing the exact limitations within which
the right may be exercised or the correlative state duty may be obliged.
Nonetheless, it enumerated the recognized restrictions to such rights, among
them: (1) national security matters, (2) trade secrets and banking transactions,
(3) criminal matters, and (4) other confidential information. National security
matters include state secrets regarding military and diplomatic matters, as well
as information on inter-government exchanges prior to the conclusion of
treaties and executive agreements. It was further held that even where
there is no need to protect such state secrets, they must be "examined
in strict confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of respondent
Committees to obtain information allegedly in aid of legislation, not the
peoples right to public information. This is the reason why we stressed in the
assailed Decision the distinction between these two rights. As laid down

in Senate v. Ermita, "the demand of a citizen for the production of documents

pursuant to his right to information does not have the same obligatory force as
a subpoena duces tecum issued by Congress" and "neither does the right to
information grant a citizen the power to exact testimony from government
officials." As pointed out, these rights belong to Congress, not to the individual
citizen. It is worth mentioning at this juncture that the parties here are
respondent Committees and petitioner Neri and that there was no prior
request for information on the part of any individual citizen. This Court will not
be swayed by attempts to blur the distinctions between the Legislature's right
to information in a legitimate legislative inquiry and the public's right to
information.
For clarity, it must be emphasized that the assailed Decision did not
enjoin respondent Committees from inquiring into the NBN Project. All
that is expected from them is to respect matters that are covered by
executive privilege.
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an
unusually lengthy discussion on the purported legislative nature of their entire
inquiry, as opposed to an oversight inquiry.
At the outset, it must be clarified that the Decision did not pass upon the
nature of respondent Committees inquiry into the NBN Project. To reiterate,
this Court recognizes respondent Committees power to investigate the NBN
Project in aid of legislation. However, this Court cannot uphold the view that
when a constitutionally guaranteed privilege or right is validly invoked by a
witness in the course of a legislative investigation, the legislative purpose of
respondent Committees questions can be sufficiently supported by the
expedient of mentioning statutes and/or pending bills to which their inquiry as
a whole may have relevance. The jurisprudential test laid down by this Court
in past decisions on executive privilege is that the presumption of privilege
can only be overturned by a showing of compelling need for disclosure of
the information covered by executive privilege.
In the Decision, the majority held that "there is no adequate showing of a
compelling need that would justify the limitation of the privilege and of the

unavailability of the information elsewhere by an appropriate investigating

authority." In the Motion for Reconsideration, respondent Committees argue
that the information elicited by the three (3) questions are necessary in the
discharge of their legislative functions, among them, (a) to consider the three
(3) pending Senate Bills, and (b) to curb graft and corruption.
We remain unpersuaded by respondents assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to
balancing against other interests and it is necessary to resolve the competing
interests in a manner that would preserve the essential functions of each
branch. There, the Court weighed between presidential privilege and the
legitimate claims of the judicial process. In giving more weight to the latter, the
Court ruled that the President's generalized assertion of privilege must yield to
the demonstrated, specific need for evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand
in the way of the primary constitutional duty of the Judicial Branch to do justice
in criminal prosecutions. The said Court further ratiocinated, through its ruling
extensively quoted in the Honorable Chief Justice Puno's dissenting opinion,
as follows:
"... this presumptive privilege must be considered in light of our historic
commitment to the rule of law. This is nowhere more profoundly
manifest than in our view that 'the twofold aim (of criminal justice) is that
guild shall not escape or innocence suffer.' Berger v. United States, 295
U.S., at 88, 55 S.Ct., at 633. We have elected to employ an adversary
system of criminal justice in which the parties contest all issues before a
court of law. The need to develop all relevant facts in the adversary
system is both fundamental and comprehensive. The ends of
criminal justice would be defeated if judgments were to be founded
on a partial or speculative presentation of the facts. The very
integrity of the judicial system and public confidence in the system
depend on full disclosure of all the facts, within the framework of
the rules of evidence. To ensure that justice is done, it is
imperative to the function of courts that compulsory process be
available for the production of evidence needed either by the
prosecution or by the defense.
xxx xxx xxx

The right to the production of all evidence at a criminal trial similarly has
constitutional dimensions. The Sixth Amendment explicitly confers upon
every defendant in a criminal trial theright 'to be confronted with the
witness against him' and 'to have compulsory process for obtaining
witnesses in his favor.' Moreover, the Fifth Amendment also guarantees
that no person shall be deprived of liberty without due process of
law. It is the manifest duty of the courts to vindicate those
guarantees, and to accomplish that it is essential that all relevant and
admissible evidence be produced.
In this case we must weigh the importance of the general privilege
of confidentiality of Presidential communications in performance
of the President's responsibilities against the inroads of such a
privilege on the fair administration of criminal justice. (emphasis
supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that
is demonstrably relevant in a criminal trial would cut deeply into
the guarantee of due process of law and gravely impair the basic
function of the courts. A President's acknowledged need for
confidentiality in the communications of his office is general in nature,
whereas theconstitutional need for production of relevant evidence
in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of
justice. Without access to specific facts a criminal prosecution may
betotally frustrated. The President's broad interest in
confidentiality of communication willnot be vitiated by disclosure of
a limited number of conversations preliminarily shown to have
some bearing on the pending criminal cases.
We conclude that when the ground for asserting privilege as to
subpoenaed materials sought for use in a criminal trial is based only on
the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair
administration of criminal justice. The generalized assertion of
privilege must yield to the demonstrated, specific need for evidence in
a pending criminal trial. (emphasis supplied)
In the case at bar, we are not confronted with a courts need for facts in order
to adjudge liability in a criminal case but rather with the Senates need for

information in relation to its legislative functions. This leads us to consider

once again just how critical is the subject information in the discharge of
respondent Committees functions. The burden to show this is on the
respondent Committees, since they seek to intrude into the sphere of
competence of the President in order to gather information which, according
to said respondents, would "aid" them in crafting legislation.
Senate Select Committee on Presidential Campaign Activities v.
Nixon41 expounded on the nature of a legislative inquiry in aid of legislation in
this wise:
The sufficiency of the Committee's showing of need has come to
depend, therefore, entirely on whether the subpoenaed materials are
critical to the performance of its legislative functions. There is a clear
difference between Congress' legislative tasks and the responsibility of
a grand jury, or any institution engaged in like functions. While factfinding by a legislative committee is undeniably a part of its task,
legislative judgments normally depend more on the predicted
consequences of proposed legislative actions and their political
acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information
provided in its hearings. In contrast, the responsibility of the grand jury
turns entirely on its ability to determine whether there is probable cause
to believe that certain named individuals did or did not commit specific
crimes. If, for example, as in Nixon v. Sirica, one of those crimes is
perjury concerning the content of certain conversations, the grand jury's
need for the most precise evidence, the exact text of oral statements
recorded in their original form, is undeniable. We see no comparable
need in the legislative process, at least not in the circumstances of
this case. Indeed, whatever force there might once have been in the
Committee's argument that the subpoenaed materials are necessary to
its legislative judgments has been substantially undermined by
subsequent events. (Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be equated with
the compelling or demonstratively critical and specific need for facts which is
so essential to the judicial power to adjudicate actual controversies. Also, the
bare standard of "pertinency" set in Arnault cannot be lightly applied to the
instant case, which unlike Arnault involves a conflict between two (2)
separate, co-equal and coordinate Branches of the Government.

Whatever test we may apply, the starting point in resolving the conflicting
claims between the Executive and the Legislative Branches is the recognized
existence of the presumptive presidential communications privilege. This is
conceded even in the Dissenting Opinion of the Honorable Chief Justice
Puno, which states:
A hard look at Senate v. Ermita ought to yield the conclusion that it
bestowed a qualified presumption in favor of the Presidential
communications privilege. As shown in the previous discussion, U.S. v.
Nixon, as well as the other related Nixon cases Sirica and Senate
Select Committee on Presidential Campaign Activities, et al., v.
Nixon in the D.C. Court of Appeals, as well as subsequent cases all
recognize that there is a presumptive privilege in favor of Presidential
communications. The Almonte case quoted U.S. v. Nixon and
recognized a presumption in favor of confidentiality of Presidential
communications.
The presumption in favor of Presidential communications puts the burden on
the respondent Senate Committees to overturn the presumption by
demonstrating their specific need for the information to be elicited by the
answers to the three (3) questions subject of this case, to enable them to craft
legislation. Here, there is simply a generalized assertion that the information is
pertinent to the exercise of the power to legislate and a broad and nonspecific reference to pending Senate bills. It is not clear what matters relating
to these bills could not be determined without the said information sought by
the three (3) questions. As correctly pointed out by the Honorable Justice
Dante O. Tinga in his Separate Concurring Opinion:
If respondents are operating under the premise that the
president and/or her executive officials have committed
wrongdoings that need to be corrected or prevented from
recurring by remedial legislation, the answer to those three
questions will not necessarily bolster or inhibit respondents from
proceeding with such legislation. They could easily presume the
worst of the president in enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed
before legislatives bodies can come up with relevant legislation unlike in the
adjudication of cases by courts of law. Interestingly, during the Oral Argument
before this Court, the counsel for respondent Committees impliedly admitted
that the Senate could still come up with legislations even without petitioner

answering the three (3) questions. In other words, the information being
elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the
lawmaking function of the Senate. For instance, question Number
1 whether the President followed up the NBN project. According to
the other counsel this question has already been asked, is that
correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your
Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking
function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam
Santiago, she would like to indorse a Bill to include Executive
Agreements had been used as a device to the circumventing the
Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN

I believe that may be the initial question, Your Honor, because if

we look at this problem in its factual setting as counsel for
petitioner has observed, there are intimations of a bribery scandal
involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize
this ZTE, is that critical to the lawmaking function of the Senate?
Will it result to the failure of the Senate to cobble a Bill without this
question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed
amendment to the Procurement Law, Your Honor, because the
petitioner had already testified that he was offered a P200 Million
bribe, so if he was offered a P200 Million bribe it is possible that
other government officials who had something to do with the
approval of the contract would be offered the same amount of
bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your
Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go
ahead and approve the project after being told about the alleged
bribe. How critical is that to the lawmaking function of the Senate?
And the question is may they craft a Bill a remedial law without
forcing petitioner Neri to answer this question?
ATTY. AGABIN

Well, they can craft it, Your Honor, based on mere speculation.
And sound legislation requires that a proposed Bill should have
some basis in fact.42
The failure of the counsel for respondent Committees to pinpoint the specific
need for the information sought or how the withholding of the information
sought will hinder the accomplishment of their legislative purpose is very
evident in the above oral exchanges. Due to the failure of the respondent
Committees to successfully discharge this burden, the presumption in favor of
confidentiality of presidential communication stands. The implication of the
said presumption, like any other, is to dispense with the burden of proof as to
whether the disclosure will significantly impair the Presidents performance of
her function. Needless to state this is assumed, by virtue of the presumption.
Anent respondent Committees bewailing that they would have to "speculate"
regarding the questions covered by the privilege, this does not evince a
compelling need for the information sought. Indeed,Senate Select Committee
on Presidential Campaign Activities v. Nixon43 held that while fact-finding by a
legislative committee is undeniably a part of its task, legislative judgments
normally depend more on the predicted consequences of proposed legislative
actions and their political acceptability than on a precise reconstruction of past
events. It added that, normally, Congress legislates on the basis of conflicting
information provided in its hearings. We cannot subscribe to the respondent
Committees self-defeating proposition that without the answers to the three
(3) questions objected to as privileged, the distinguished members of the
respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that
respondent Committees need for information in the exercise of this function is
not as compelling as in instances when the purpose of the inquiry is legislative
in nature. This is because curbing graft and corruption is merely an oversight
function of Congress.44 And if this is the primary objective of respondent
Committees in asking the three (3) questions covered by privilege, it may
even contradict their claim that their purpose is legislative in nature and not
oversight. In any event, whether or not investigating graft and corruption is a
legislative or oversight function of Congress, respondent Committees
investigation cannot transgress bounds set by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this
Court must perform under the Constitution. Moreover, as held in a

recent case, "the political question doctrine neither interposes an

obstacle to judicial determination of the rival claims. The jurisdiction to
delimit constitutional boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987 Constitution, although
said provision by no means does away with the applicability of the
principle in appropriate cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by
respondent Committee is not really in aid of legislation because it is not
related to a purpose within the jurisdiction of Congress, since the aim of
the investigation is to find out whether or not the relatives of the
President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019,
the Anti-Graft and Corrupt Practices Act, a matter that appears more
within the province of the courts rather than of the
Legislature."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the
alleged bribery to the Office of the President.48 While it may be a worthy
endeavor to investigate the potential culpability of high government officials,
including the President, in a given government transaction, it is simply not a
task for the Senate to perform. The role of the Legislature is to make laws, not
to determine anyones guilt of a crime or wrongdoing. Our Constitution has not
bestowed upon the Legislature the latter role. Just as the Judiciary cannot
legislate, neither can the Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of
legislation and a "search for truth," which in respondent Committees view
appears to be equated with the search for persons responsible for
"anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they
cannot assume the power reposed upon our prosecutorial bodies and courts.
The determination of who is/are liable for a crime or illegal activity, the
investigation of the role played by each official, the determination of who
should be haled to court for prosecution and the task of coming up with
conclusions and finding of facts regarding anomalies, especially the
determination of criminal guilt, are not functions of the Senate. Congress is
neither a law enforcement nor a trial agency. Moreover, it bears stressing that
no inquiry is an end in itself; it must be related to, and in furtherance of, a
legitimate task of the Congress, i.e. legislation. Investigations conducted
solely to gather incriminatory evidence and "punish" those investigated are
indefensible. There is no Congressional power to expose for the sake of

exposure.49In this regard, the pronouncement in Barenblatt v. United

States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. Since
Congress may only investigate into the areas in which it may potentially
legislate or appropriate, it cannot inquire into matters which are within
the exclusive province of one of the other branches of the government.
Lacking the judicial power given to the Judiciary, it cannot inquire into
matters that are exclusively the concern of the Judiciary. Neither can it
supplant the Executive in what exclusively belongs to the Executive.
(Emphasis supplied.)
At this juncture, it is important to stress that complaints relating to the NBN
Project have already been filed against President Arroyo and other
personalities before the Office of the Ombudsman. Under our Constitution, it is
the Ombudsman who has the duty "to investigate any act or omission of
any public official, employee, office or agency when such act or
omission appears to be illegal, unjust, improper, or inefficient."51 The
Office of the Ombudsman is the body properly equipped by the Constitution
and our laws to preliminarily determine whether or not the allegations of
anomaly are true and who are liable therefor. The same holds true for our
courts upon which the Constitution reposes the duty to determine criminal guilt
with finality. Indeed, the rules of procedure in the Office of the Ombudsman
and the courts are well-defined and ensure that the constitutionally
guaranteed rights of all persons, parties and witnesses alike, are
protected and safeguarded.
Should respondent Committees uncover information related to a possible
crime in the course of their investigation, they have the constitutional duty to
refer the matter to the appropriate agency or branch of government. Thus, the
Legislatures need for information in an investigation of graft and corruption
cannot be deemed compelling enough to pierce the confidentiality of
information validly covered by executive privilege. As discussed above, the
Legislature can still legislate on graft and corruption even without the
information covered by the three (3) questions subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioners claim of
executive privilege on the ground that there is no privilege when the
information sought might involve a crime or illegal activity, despite the
absence of an administrative or judicial determination to that effect.
Significantly, however, in Nixon v. Sirica,52 the showing required to overcome
the presumption favoring confidentiality turned, not on the nature of the

presidential conduct that the subpoenaed material might reveal, but,

instead, on the nature and appropriateness of the function in the
performance of which the material was sought, and the degree to which
the material was necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential
Campaign Activities v. Nixon does not apply to the case at bar because, unlike
in the said case, no impeachment proceeding has been initiated at present.
The Court is not persuaded. While it is true that no impeachment proceeding
has been initiated, however, complaints relating to the NBN Project have
already been filed against President Arroyo and other personalities before the
Office of the Ombudsman. As the Court has said earlier, the prosecutorial and
judicial arms of government are the bodies equipped and mandated by the
Constitution and our laws to determine whether or not the allegations of
anomaly in the NBN Project are true and, if so, who should be prosecuted and
penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting
standards of evidence essential to arrive at accurate factual findings to which
to apply the law. Hence, Section 10 of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation provides that "technical rules of
evidence applicable to judicial proceedings which do not affect substantive
rights need not be observed by the Committee." Court rules which prohibit
leading, hypothetical, or repetitive questions or questions calling for a hearsay
answer, to name a few, do not apply to a legislative inquiry. Every person,
from the highest public official to the most ordinary citizen, has the right to be
presumed innocent until proven guilty in proper proceedings by a competent
court or body.
IV
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of
discretion in issuing the contempt order because (1) there is no legitimate
claim of executive privilege; (2) they did not violate the requirements laid down
in Senate v. Ermita; (3) they issued the contempt order in accordance with
their internal Rules; (4) they did not violate the requirement under Article VI,
Section 21 of the Constitution requiring the publication of their Rules; and (5)
their issuance of the contempt order is not arbitrary or precipitate.

We reaffirm our earlier ruling.

The legitimacy of the claim of executive privilege having been fully discussed
in the preceding pages, we see no reason to discuss it once again.
Respondent Committees second argument rests on the view that the ruling
in Senate v. Ermita, requiring invitations or subpoenas to contain the "possible
needed statute which prompted the need for the inquiry" along with the "usual
indication of the subject of inquiry and the questions relative to and in
furtherance thereof" is not provided for by the Constitution and is merely an
obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with
these requirements.
An unconstrained congressional investigative power, like an unchecked
Executive, generates its own abuses. Consequently, claims that the
investigative power of Congress has been abused (or has the potential for
abuse) have been raised many times.53 Constant exposure to congressional
subpoena takes its toll on the ability of the Executive to function effectively.
The requirements set forth in Senate v. Ermita are modest mechanisms that
would not unduly limit Congress power. The legislative inquiry must be
confined to permissible areas and thus, prevent the "roving commissions"
referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses have
their constitutional right to due process. They should be adequately informed
what matters are to be covered by the inquiry. It will also allow them to
prepare the pertinent information and documents. To our mind, these
requirements concede too little political costs or burdens on the part of
Congress when viewed vis--vis the immensity of its power of inquiry. The
logic of these requirements is well articulated in the study conducted by
William P. Marshall,55 to wit:
A second concern that might be addressed is that the current system
allows committees to continually investigate the Executive without
constraint. One process solution addressing this concern is to
require each investigation be tied to a clearly stated purpose. At
present, the charters of some congressional committees are so broad
that virtually any matter involving the Executive can be construed to fall
within their province. Accordingly, investigations can proceed without
articulation of specific need or purpose. A requirement for a more
precise charge in order to begin an inquiry should immediately work to
limit the initial scope of the investigation and should also serve to

contain the investigation once it is instituted.Additionally, to the extent

clear statements of rules cause legislatures to pause and seriously
consider the constitutional implications of proposed courses of
action in other areas, they would serve that goal in the context of
congressional investigations as well.
The key to this reform is in its details. A system that allows a
standing committee to simply articulate its reasons to investigate
pro forma does no more than imposes minimal drafting burdens.
Rather, the system must be designed in a manner that imposes
actual burdens on the committee to articulate its need for
investigation and allows for meaningful debate about the merits of
proceeding with the investigation.(Emphasis supplied)
Clearly, petitioners request to be furnished an advance copy of questions is a
reasonable demand that should have been granted by respondent
Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007
made no specific reference to any pending Senate bill. It did not also inform
petitioner of the questions to be asked. As it were, the subpoena merely
commanded him to "testify on what he knows relative to the subject matter
under inquiry."
Anent the third argument, respondent Committees contend that their Rules of
Procedure Governing Inquiries in Aid of Legislation (the "Rules") are beyond
the reach of this Court. While it is true that this Court must refrain from
reviewing the internal processes of Congress, as a co-equal branch of
government, however, when a constitutional requirement exists, the Court has
the duty to look into Congress compliance therewith. We cannot turn a blind
eye to possible violations of the Constitution simply out of courtesy. In this
regard, the pronouncement in Arroyo v. De Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of expression, all deny to
the courts the power to inquire into allegations that, in enacting a law, a
House of Congress failed to comply with its own rules, in the absence of
showing that there was a violation of a constitutional provision or the
rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: The
Constitution empowers each House to determine its rules of
proceedings. It may not by its rules ignore constitutional restraints

or violate fundamental rights, and there should be a reasonable

relation between the mode or method of proceeding established by
the rule and the result which is sought to be attained."
In the present case, the Courts exercise of its power of judicial review is
warranted because there appears to be a clear abuse of the power of
contempt on the part of respondent Committees. Section 18 of the Rules
provides that:
"The Committee, by a vote of majority of all its members, may punish
for contempt any witness before it who disobey any order of the
Committee or refuses to be sworn or to testify or to answer proper
questions by the Committee or any of its members." (Emphasis
supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the
validity of the contempt order because during the deliberation of the three (3)
respondent Committees, only seven (7) Senators were present. This number
could hardly fulfill the majority requirement needed by respondentCommittee
on Accountability of Public Officers and Investigations which has a
membership of seventeen (17) Senators and respondent Committee on
National Defense and Security which has a membership of eighteen (18)
Senators. With respect to respondent Committee on Trade and
Commerce which has a membership of nine (9) Senators, only three (3)
members were present.57These facts prompted us to quote in the Decision the
exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr.
whereby the former raised the issue of lack of the required majority to
deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this
Court, Senator Francis Pangilinan stated that any defect in the committee
voting had been cured because two-thirds of the Senators effectively signed
for the Senate in plenary session.58
Obviously the deliberation of the respondent Committees that led to the
issuance of the contempt order is flawed. Instead of being submitted to a full
debate by all the members of the respondent Committees, the contempt order
was prepared and thereafter presented to the other members for signing. As a
result, the contempt order which was issued on January 30, 2008 was not a
faithful representation of the proceedings that took place on said date.
Records clearly show that not all of those who signed the contempt order

were present during the January 30, 2008 deliberation when the matter was
taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance
with its duly published rules of procedure. The rights of person
appearing in or affected by such inquiries shall be
respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the witness
settled expectation. If the limitations are not observed, the witness settled
expectation is shattered. Here, how could there be a majority vote when the
members in attendance are not enough to arrive at such majority? Petitioner
has the right to expect that he can be cited in contempt only through a
majority vote in a proceeding in which the matter has been fully deliberated
upon. There is a greater measure of protection for the witness when the
concerns and objections of the members are fully articulated in such
proceeding. We do not believe that respondent Committees have the
discretion to set aside their rules anytime they wish. This is especially true
here where what is involved is the contempt power. It must be stressed that
the Rules are not promulgated for their benefit. More than anybody else, it is
the witness who has the highest stake in the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent
Committees fourth argument. Respondent Committees argue that the Senate
does not have to publish its Rules because the same was published in 1995
and in 2006. Further, they claim that the Senate is a continuing body; thus, it
is not required to republish the Rules, unless the same is repealed or
amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue
a clarification. Certainly, there is no debate that the Senate as an
institution is "continuing", as it is not dissolved as an entity with each national
election or change in the composition of its members. However, in the conduct
of its day-to-day business the Senate of each Congress acts separately and
independently of the Senate of the Congress before it. The Rules of the
Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken
up at the next session in the same status.
All pending matters and proceedings shall terminate upon the
expiration of one (1) Congress, but may be taken by the succeeding
Congress as if present for the first time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e.
unpassed bills and even legislative investigations, of the Senate of a particular
Congress are considered terminated upon the expiration of that Congress
and it is merely optional on the Senate of the succeeding Congress to take up
such unfinished matters, not in the same status, but as if presented for the
first time. The logic and practicality of such a rule is readily apparent
considering that the Senate of the succeeding Congress (which will typically
have a different composition as that of the previous Congress) should not be
bound by the acts and deliberations of the Senate of which they had no part. If
the Senate is a continuing body even with respect to the conduct of its
business, then pending matters will not be deemed terminated with the
expiration of one Congress but will, as a matter of course, continue into the
next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the
opposite nature of the conduct of its business is reflected in its Rules. The
Rules of the Senate (i.e. the Senates main rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in
the preceding elections shall begin their term of office, the President
may endorse the Rules to the appropriate committee for amendment or
revision.
The Rules may also be amended by means of a motion which should be
presented at least one day before its consideration, and the vote of the
majority of the Senators present in the session shall be required for its
approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption
and shall remain in force until they are amended or repealed. (emphasis
supplied)
Section 136 of the Senate Rules quoted above takes into account the new
composition of the Senate after an election and the possibility of the
amendment or revision of the Rules at the start of eachsession in which the
newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are
intended to be valid from the date of their adoption until they are amended or
repealed. Such language is conspicuously absent from the Rules.
The Rules simply state "(t)hese Rules shall take effect seven (7) days after
publication in two (2) newspapers of general circulation."59 The latter does not
explicitly provide for the continued effectivity of such rules until they are
amended or repealed. In view of the difference in the language of the two sets
of Senate rules, it cannot be presumed that the Rules (on legislative inquiries)
would continue into the next Congress. The Senate of the next Congress may
easily adopt different rules for its legislative inquiries which come within the
rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the
inquiry be conducted in accordance with the duly published rules of
procedure is categorical. It is incumbent upon the Senate to publish the rules
for its legislative inquiries in each Congress or otherwise make the published
rules clearly state that the same shall be effective in subsequent Congresses
or until they are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries
to be effective even in the next Congress, it could have easily adopted the
same language it had used in its main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all
orders issued or proceedings conducted pursuant to the subject Rules are null
and void. Only those that result in violation of the rights of witnesses should
be considered null and void, considering that the rationale for the publication
is to protect the rights of witnesses as expressed in Section 21, Article VI of
the Constitution. Sans such violation, orders and proceedings are considered
valid and effective.

Respondent Committees last argument is that their issuance of the contempt

order is not precipitate or arbitrary. Taking into account the totality of
circumstances, we find no merit in their argument.
As we have stressed before, petitioner is not an unwilling witness, and
contrary to the assertion of respondent Committees, petitioner did not assume
that they no longer had any other questions for him. He repeatedly manifested
his willingness to attend subsequent hearings and respond to new matters.
His only request was that he be furnished a copy of the new questions in
advance to enable him to adequately prepare as a resource person. He did
not attend the November 20, 2007 hearing because Executive Secretary
Ermita requested respondent Committees to dispense with his testimony on
the ground of executive privilege. Note that petitioner is an executive official
under the direct control and supervision of the Chief Executive. Why punish
petitioner for contempt when he was merely directed by his superior? Besides,
save for the three (3) questions, he was very cooperative during the
September 26, 2007 hearing.
On the part of respondent Committees, this Court observes their haste and
impatience. Instead of ruling on Executive Secretary Ermitas claim of
executive privilege, they curtly dismissed it as unsatisfactory and ordered the
arrest of petitioner. They could have informed petitioner of their ruling and
given him time to decide whether to accede or file a motion for
reconsideration. After all, he is not just an ordinary witness; he is a highranking official in a co-equal branch of government. He is an alter ego of the
President. The same haste and impatience marked the issuance of the
contempt order, despite the absence of the majority of the members of the
respondent Committees, and their subsequent disregard of petitioners motion
for reconsideration alleging the pendency of his petition for certiorari before
this Court.
On a concluding note, we are not unmindful of the fact that the Executive and
the Legislature are political branches of government. In a free and democratic
society, the interests of these branches inevitably clash, but each must treat
the other with official courtesy and respect. This Court wholeheartedly concurs
with the proposition that it is imperative for the continued health of our
democratic institutions that we preserve the constitutionally mandated checks
and balances among the different branches of government.
In the present case, it is respondent Committees contention that their
determination on the validity of executive privilege should be binding on the
Executive and the Courts. It is their assertion that theirinternal procedures and

deliberations cannot be inquired into by this Court supposedly in accordance

with the principle of respect between co-equal branches of government.
Interestingly, it is a courtesy that they appear to be unwilling to extend to the
Executive (on the matter of executive privilege) or this Court (on the matter of
judicial review). It moves this Court to wonder: In respondent Committees
paradigm of checks and balances, what are the checks to the Legislatures allencompassing, awesome power of investigation? It is a power, like any other,
that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees well-intentioned
efforts to ferret out corruption, even in the highest echelons of government,
such lofty intentions do not validate or accord to Congress powers denied to it
by the Constitution and granted instead to the other branches of government.
There is no question that any story of government malfeasance deserves an
inquiry into its veracity. As respondent Committees contend, this is founded on
the constitutional command of transparency and public accountability. The
recent clamor for a "search for truth" by the general public, the religious
community and the academe is an indication of a concerned citizenry, a nation
that demands an accounting of an entrusted power. However, the best venue
for this noble undertaking is not in the political branches of government. The
customary partisanship and the absence of generally accepted rules on
evidence are too great an obstacle in arriving at the truth or achieving justice
that meets the test of the constitutional guarantee of due process of law. We
believe the people deserve a more exacting "search for truth" than the
process here in question, if that is its objective.
WHEREFORE, respondent Committees Motion for Reconsideration dated
April 8, 2008 is herebyDENIED.
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.
Dissenting Opinion - C.J. Puno
Separate Opinion on the Motion for Reconsideration - J. Quisumbing
Separate Dissenting Opinion - J. Azcuna
Separate Opinion - J. Reyes

CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815

February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES
QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment
and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOEZ, as Secretary of Justice;
FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V.
RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of
Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as
Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as
Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development
Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 1988 and are being resolved jointly as both seek a declaration of
the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the
assailed Executive Order are:
1

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or
assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold
not more than two positions in the government and government corporations and receive the corresponding
compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils
or bodies of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive
Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position
in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two positions other
than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least
one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or
assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant
secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein
imposed, runs counter to Section 13, Article VII of the 1987 Constitution, which provides as follows:
2

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said
tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with the
other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.
83815 and as Annex "B" in G.R. No. 83896 from holding any other office or employment during their tenure. In addition to seeking
a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in
G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order
directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions
3

other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms of
privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse or refund
any and all amounts or benefits that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and selfexecuting" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoez, construing Section 13, Article VII in
relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, declaring that Cabinet
members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the
boards of government corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice who
is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or
(c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of the
Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284.
5

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they allegedly
"lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB. This "strained
linkage" between the two provisions, each addressed to a distinct and separate group of public officers one, the President and
her official family, and the other, public servants in general allegedly "abolished the clearly separate, higher, exclusive, and
mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-President, the members of
the Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead by example." Article IX-B,
Section 7, par. (2) provides:
7

Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other
office or employment in the government or any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified by
DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988, being the first official construction and
interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving
the same subject of appointments or designations of an appointive executive official to positions other than his primary position, is
"reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series
of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series
of 1988 construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not
so designated as ex-officio are allowed by the primary functions of the public official, but only to the holding of multiple positions
which are not related to or necessarily included in the position of the public official concerned (disparate positions).
9

10

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission that it adds
exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by virtue of the phrase
"unless otherwise provided in this Constitution," the only exceptions against holding any other office or employment in Government
are those provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member of the Cabinet under Section
3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service Commission
applies to officers and employees of the Civil Service in general and that said exceptions do not apply and cannot be extended to
Section 13, Article VII which applies specifically to the President, Vice-President, Members of the Cabinet and their deputies or
assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their deputies or
assistants from holding dual or multiple positions in the Government admits of certain exceptions. The disagreement between
petitioners and public respondents lies on the constitutional basis of the exception. Petitioners insist that because of the phrase
"unless otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be expressly provided in the
Constitution, as in the case of the Vice-President being allowed to become a Member of the Cabinet under the second paragraph of
Section 3, Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and Bar Council under Article
VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise provided in the Constitution" in
Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein are
concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet
members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under
Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries."

We rule in the negative.

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.
11

The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of
various government agencies and instrumentalities, including government-owned and controlled corporations, became prevalent
during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to his martial
law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and controlled
corporations created by presidential decrees and other modes of presidential issuances where Cabinet members, their deputies or
assistants were designated to head or sit as members of the board with the corresponding salaries, emoluments, per diems,
allowances and other perquisites of office. Most of these instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who took
advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in government was strongly
denounced on the floor of the Batasang Pambansa. This condemnation came in reaction to the published report of the
Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned and Controlled Corporations, SelfGoverning Boards and Commissions" which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of December 31, 1983."
12

Particularly odious and revolting to the people's sense of propriety and morality in government service were the data contained
therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies, instrumentalities
and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15);
Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A.
Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and
Teodoro Q. Pea of ten (10) each.
13

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore
quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission,
convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the
provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple
governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these
cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was the assurance given by
its proponents that the scandalous practice of Cabinet members holding multiple positions in the government and collecting
unconscionably excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against the
holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the
Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President,
Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their
tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the
framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other
offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the
disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI, "(N)o
Senator or Member of the House of Representatives may hold any other office or employment in the Government . . .". Under
Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be appointed in any capacity to a
civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries." Even
Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an
office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking contrast
is the wording of Section 13, Article VII which states that "(T)he President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their
tenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in the Government." The prohibition
imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official
family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress,
members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the
President and his official family as a class by itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly
articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and debate
that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated
report on the Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the
members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints on them are called for
because there is more possibility of abuse in their case."
14

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during
their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay
down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant
to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possibly
refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said qualifying phrase as
respondents would have us do, would render nugatory and meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants
with respect to holding other offices or employment in the government during their tenure. Respondents' interpretation that Section
13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by
the framers of the Constitution as to when the high-ranking officials of the Executive Branch from the President to Assistant
Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on
the other, may hold any other office or position in the government during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative. This
observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or
employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is
absolutely ineligible "for appointment or designation in any capacity to any public office or position during his tenure." Surely, to say
that the phrase "unless otherwise provided in this Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of
Article I-XB would render meaningless the specific provisions of the Constitution authorizing the Vice-President to become a
member of the Cabinet, and to act as President without relinquishing the Vice-Presidency where the President shall not nave been
chosen or fails to qualify. Such absurd consequence can be avoided only by interpreting the two provisions under consideration as
one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13, Article VII as constituting the
exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII.
15

16

It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from all the
others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if
by any reasonable construction, the two can be made to stand together.
17

18

19

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word
operative, rather than one which may make the words idle and nugatory.
20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President,
members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government
during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article
VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding
multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation. The phrase "unless otherwise provided in this Constitution"
must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the VicePresident being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
21

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not,
however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in
an ex-officio capacity as provided by law and as required by the primary functions of said officials' office. The reason is that these
posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of
22

additional duties and functions on said officials. To characterize these posts otherwise would lead to absurd consequences, among
which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115
(December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice,
Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson
and members. The respective undersecretaries and assistant secretaries, would also be prohibited.
23

The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council (NMYC)
or the Philippine Overseas Employment Administration (POEA), both of which are attached to his department for policy coordination
and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. Neither can their respective undersecretaries and
assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy direction in
the areas of money, banking and credit.
24

25

Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a
continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and
unreasonable or absurd consequences, if possible, should be avoided.
26

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's office.
The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not
expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise denotes an "act
done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by
the office." An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further
warrant or appointment. To illustrate, by express provision of law, the Secretary of Transportation and Communications is the exofficio Chairman of the Board of the Philippine Ports Authority, and the Light Rail Transit Authority.
27

28

29

30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control and
Inspection Board, thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and
members of the Board to qualify they need only be designated by the respective department heads. With the exception of the
representative from the private sector, they sit ex-officio. In order to be designated they must already be holding positions in the
offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot,
under the act, be designated a representative from that office. The same is true with respect to the representatives from the other
offices. No new appointments are necessary. This is as it should be, because the representatives so designated merely perform
duties in the Board in addition to those already performed under their original appointments."
31

32

The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The
term is not restricted to the singular but may refer to the plural. The additional duties must not only be closely related to, but must
be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions are the
Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority and the Civil Aeronautics Board.
33

34

If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to the
primary function of a cabinet official, such additional functions would fall under the purview of "any other office" prohibited by the
Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and
Gaming Corporation. The same rule applies to such positions which confer on the cabinet official management functions and/or
monetary compensation, such as but not limited to chairmanships or directorships in government-owned or controlled corporations
and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which are
not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise and
skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the demands
of efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the discharge of its
multifarious tasks of executing and implementing laws affecting national interest and general welfare and delivering basic services to
the people. It is consistent with the power vested on the President and his alter egos, the Cabinet members, to have control of all
the executive departments, bureaus and offices and to ensure that the laws are faithfully executed. Without these additional duties
and functions being assigned to the President and his official family to sit in the governing bodies or boards of governmental
agencies or instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they would be
supervision, thereby deprived of the means for control and resulting in an unwieldy and confused bureaucracy.
35

It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in
Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of the
official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional
compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has
no right to receive additional compensation for his services in the said position. The reason is that these services are already paid
for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance
attends a meeting of the Monetary Board as an ex-officiomember thereof, he is actually and in legal contemplation performing the
primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per
them or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional
compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to Section 7, par.
(2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by the functions of his
position," express reference to certain high-ranking appointive public officials like members of the Cabinet were
made. Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when
although not required by current law, membership of certain high-ranking executive officials in other offices and corporations is
necessary by reason of said officials' primary functions. The example given by Commissioner Monsod was the Minister of Trade and
Industry.
36

37

38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional functions and
duties flowing from the primary functions of the official may be imposed upon him without offending the constitutional prohibition
under consideration, it cannot, however, be taken as authority for saying that this exception is by virtue of Section 7, par. (2) of
Article I-XB. This colloquy between the two Commissioners took place in the plenary session of September 27, 1986. Under
consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on General Provisions. At that
time, the article on the Civil Service Commission had been approved on third reading on July 22, 1986, while the article on the
Executive Department, containing the more specific prohibition in Section 13, had also been earlier approved on third reading on
August 26, 1986. It was only after the draft Constitution had undergone reformatting and "styling" by the Committee on Style that
said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law
or by the primary functions of his position. . . ."
39

40

41

What was clearly being discussed then were general principles which would serve as constitutional guidelines in the absence of
specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion was the adoption of the
qualified and delimited phrase "primary functions" as the basis of an exception to the general rule covering all appointive public
officials. Had the Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it could have
re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of the proposed general Provisions, later
placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his official family is by reason of the legal principles
governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have
made it clear that only the additional functions and duties "required," as opposed to "allowed," by the primary functions may be
considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at
the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings
are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value
as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that
instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." The proper
interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding
thereof.
42

1wphi1

43

44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, VicePresident, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in
the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without
additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the
citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for
all appointive officials should be considered as mere personal opinions which cannot override the constitution's manifest intent and
the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution,
Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet
members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two (2) positions
in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or
employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from
doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition
mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be stripped

of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in this
decision, ex-officio posts held by the executive official concerned without additional compensation as provided by law and as
required by the primary functions of his office do not fall under the definition of "any other office" within the contemplation of the
constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including chairmanships or
directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical
consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a full-time job,
requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's
ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental
offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of
responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if
any, that may be gained from a department head spreading himself too thin and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and
Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government Luis Santos, Secretary of National Defense Fidel V.
Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their
other offices or employment, as herein defined, in the government, including government-owned or controlled corporations and their
subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are no longer
occupying the positions complained of.
45

During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to
emoluments for actual services rendered. It has been held that "in cases where there is no de jure,officer, a de facto officer, who,
in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments
of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. This doctrine
is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services of an officer de
facto and then be freed from all liability to pay any one for such services. Any per diem, allowances or other emoluments received
by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them.
46

47

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby declared
null and void and is accordingly set aside.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado and Davide, Jr.,
JJ., concur.
Sarmiento and Grio-Aquino, JJ., took no part.

Footnotes
1

P. 71, Rollo in G.R. No. 83815 and p. 28, Rollo in G.R. No. 83896.

Emphasis supplied.

pp. 29-30, Rollo.

pp. 10-21, Rollo.

Annex "A", Petition, G.R. No. 83815, pp. 21-24, Rollo.

Thereby, petitioner alleges, eliciting adverse published commentaries from CONCOM Commissioners Fr. Joaquin G.
Bernas, S. J. and Regalado E. Maambong, Congressman Rodolfo Albano of Isabela, and retired Supreme Court Justice
Felix Q. Antonio, Annexes "D", "E" and "F", Petition, G.R. No. 83815, pp. 40-64, Rollo. CONCOM Vice-President Ambrosio
B. Padilla, in a published article cited in the annexes, also commented on EO 284.
6

p. 11, Rollo in G.R. No. 83815.

Emphasis supplied.

Annex "I", Comment, G.R. No. 83896, pp. 62-67, Rollo.

10

Annex "2", Ibid., pp. 68-71, Rollo.

11

Maxwell vs. Dow, 176 U.S. 581, 20 Sup. Ct. 448, 44 L. Ed. 597.

12

R.B. No. 95, Monday, March 11, 1985, Record of the Batasan, Volume IV, pp. 835-836.

13

pp. 11-14.

14

Record of the 1986 Constitutional Commission, Vol. 1, p. 553.

15

Sec. 3, Ibid.

16

Sec. 7, Article VII.

Old Wayne Mut. Life Asso. vs. McDonough, 204 U.S. 8, 51 L Ed 345, 27 S Ct 236; Wallace vs. Payne, 197 Cal 539, 241
P. 879.
17

18

Grantz vs. Grauman (Ky) 320 SW 2d 364; Runyon vs. Smith, 308 Ky 73, 212 SW 2d 521.

19

People vs. Wright, 6 Col. 92.

Thomas M. Colley, A Treatise on the Constitutional Limitations, Vol. I, p. 128, citing Attorney-General vs. Detroit and Erin
Plank Road Co., 2 Mich. 114; People vs. Burns, 5 Mich. 114 ; District Township vs. Dubuque, 7 Iowa 262.
20

21

Varney vs. Justice, 86 Ky 596; 6 S.W. 457; Hunt vs. State, 22 Tex. App. 396, 3 S.W. 233.

As opposed to the term "allowed" used in Section 7, par. (2), Article IX-B of the Constitution, which is permissive.
"Required" suggests an imposition, and therefore, obligatory in nature.
22

23

Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater Greenville Sewer District, 173 A.L.R. 407.

24

Executive Order No. 16, May 9, 1986, 82 O.G. 2117.

25

Sec. 20, Art. XII, 1987 Constitution.

Hirabayashi vs. United States, 320 U.S. 81, 87 L. Ed. 1774, 63 S. Ct. 1375; Opp Cotton Mills, Inc. vs. Administrator of
Wage and Hour Div., 312 U.S. 126, 85 L. Ed. 624, 61 S. Ct. 524; Gage vs. Jordan, 23 Cal 2d 794, 174 P 2d, 287 cited in
16 Am Jur 2d, pp. 100, 464.
26

27

Black's Law Dictionary, p. 516; 15A Words and Phrases, p. 392.

28

15A Words and Phrases, p. 392.

29

Sec. 7, E.O. 778.

30

Sec. 1, E.O. 210.

31

21 SCRA 336 (1967).

32

Emphasis supplied.

33

33A Words and Phrases, p. 210, citing Collector of Revenue vs. Louisiana Ready Mix Co., La. App., 197 S. 2d 141, 145.

34

Sec. 7, P.D. No. 474.

35

Section 17, Article VII.

The phrase that appears in the Constitution is not "Unless required by the primary functions" but "Unless
otherwise allowed by law or by the primary functions . . ."
36

37

Record of the 1986 Constitutional Commission, Vol. V, pp. 165-166.

38

Emphasis supplied, Ibid., p. 165.

39

Ibid., Vol. V., pp. 80-81.

40

Ibid., Vol. II, p, 94.

41

Ibid., Vol. III, p. 710.

42

16 Corpus Juris Secundum, 2. 31, p. 105.

43

Commonwealth vs. Ralph, 111 Pa. 365, 3 Atl 220.

44

Household Finance Corporation vs. Shaffner, 203, S.W. 2d 734. 356 Mo. 808.

45

Now Department of Interior and Local Governments.

46

Castillo vs. Arrieta, G.R. No. L-31444, November 13, 1974, 61 SCRA 55.

47

Patterson vs. Benson, 112 Pac. 801, 32 L.R.A. (NS) 949.

EN BANC

[G. R. No. 156982. September 8, 2004]

NATIONAL AMNESTY COMMISSION, petitioner, vs. COMMISSION ON

AUDIT, JUANITO G. ESPINO, Director IV, NCR, Commission on
Audit, and ERNESTO C. EULALIA, Resident Auditor, National
Amnesty Commission. respondents.
DECISION
CORONA, J.:

This petition for review seeks to annul the two decisions of respondent
Commission on Audit (COA) dated July 26, 2001 and January 30, 2003, affirming the
September 21, 1998 ruling of the National Government Audit Office (NGAO). The latter
in turn upheld Auditor Ernesto C. Eulalias order disallowing the payment of honoraria to
the representatives of petitioners ex officio members, per COA Memorandum No. 97038.
[1]

[2]

[5]

[3]

[4]

Petitioner National Amnesty Commission (NAC) is a government agency created on

March 25, 1994 by then President Fidel V. Ramos through Proclamation No. 347. The
NAC is tasked to receive, process and review amnesty applications. It is composed of
seven members: a Chairperson, three regular members appointed by the President,
and the Secretaries of Justice, National Defense and Interior and Local Government
as ex officio members.
[6]

It appears that after personally attending the initial NAC meetings, the three ex
officio members turned over said responsibility to their representatives who were
paid honorariabeginning December 12, 1994. However, on October 15, 1997, NAC
resident auditor Eulalia disallowed on audit the payment of honoraria to these
representatives amounting to P255,750for the period December 12, 1994 to June 27,
1997, pursuant to COA Memorandum No. 97-038. On September 1, 1998, the NGAO
upheld the auditors order and notices of disallowance were subsequently issued to the
following:
[7]

REPRESENTATIVES AMOUNT
1. Cesar Averilla
Department of National Defense P 2,500.00
2. Ramon Martinez
Department of National Defense 73,750.00
3. Cielito Mindaro,
Department of Justice 18,750.00
4. Purita Deynata
Department of Justice 62,000.00
5. Alberto Bernardo
Department of the Interior
And Local Government 71,250.00
6. Stephen Villaflor
Department of the Interior and
Local Government 26,250.00
7. Artemio Aspiras
Department of Justice 1,250.00
P255,750.00
Meanwhile, on April 28, 1999, the NAC passed Administrative Order No. 2 (the new
Implementing Rules and Regulations of Proclamation No. 347), which was approved by
then President Joseph Estrada on October 19, 1999. Section 1, Rule II thereof provides:
Section 1, Composition The NAC shall be composed of seven (7) members:

a) A Chairperson who shall be appointed by the President;

b) Three (3) Commissioners who shall be appointed by the President;
c) Three (3) Ex-officio Members
1. Secretary of Justice
2. Secretary of National Defense
3. Secretary of the Interior and Local Government
The ex officio members may designate their representatives to the Commission.
Said Representatives shall be entitled to per diems, allowances, bonuses and other
benefits as may be authorized by law. (Emphasis supplied)
Petitioner invoked Administrative Order No. 2 in assailing before the COA the
rulings of the resident auditor and the NGAO disallowing payment of honoraria to the ex
officio members representatives, to no avail.
Hence, on March 14, 2003, the NAC filed the present petition, contending that the
COA committed grave abuse of discretion in: (1) implementing COA Memorandum No.
97-038 without the required notice and publication under Article 2 of the Civil Code; (2)
invoking paragraph 2, Section 7, Article IX-B of the 1987 Constitution to sustain the
disallowance of honoraria under said Memorandum; (3) applying the Memorandum to
the NAC ex officio members representatives who were all appointive officials with ranks
below that of an Assistant Secretary; (4) interpreting laws and rules outside of its
mandate and declaring Section 1, Rule II of Administrative Order No. 2 null and void,
and (5) disallowing the payment of honoraria on the ground of lack of authority of
representatives to attend the NAC meetings in behalf of the ex officio members.
[8]

We hold that the position of petitioner NAC is against the law and jurisprudence.
The COA is correct that there is no legal basis to grant per diem, honoraria or any
allowance whatsoever to the NAC ex officio members official representatives.
The Constitution mandates the Commission on Audit to ensure that the funds and
properties of the government are validly, efficiently and conscientiously used. Thus,
Article IX-D of the Constitution ordains the COA to exercise exclusive and broad
auditing powers over all government entities or trustees, without any exception:
Section 2. (1) The Commission on Audit shall have the power, authority and duty
to examine, audit, and settle all accounts pertaining to the revenue and receipts
of, and expenditures or uses of funds and property, owned or held in trust by, or
pertaining to, the Government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned and controlled corporations with original
charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices
that have been granted fiscal autonomy under this Constitution; (b) autonomous state
colleges and universities; (c) other government-owned or controlled corporations and
their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity,
directly or indirectly, from or through the government, which are required by law of the

granting institution to submit to such audit as a condition of subsidy or equity. However,

where the internal control system of the audited agencies is inadequate, the
Commission may adopt such measures, including temporary or special pre-audit, as are
necessary and appropriate to correct the deficiencies. It shall keep the general accounts
of the Government and, for such period as may be provided by law, preserve the
vouchers and other supporting papers pertaining thereto.
(2) The Commission shall have exclusive authority, subject to the limitations in this
Article, to define the scope of its audit and examination, establish the techniques
and methods required therefor, and promulgate accounting and auditing rules
and regulations, including those for the prevention and disallowance of irregular,
unnecessary, inexpensive, extravagant, or unconscionable expenditures, or uses
of government funds and properties.
Section 3. No law shall be passed exempting any entity of the Government or its
subsidiary in any guise whatever, or any investment of public funds, from the
jurisdiction of the Commission on Audit. (Emphasis supplied).
It is in accordance with this constitutional mandate that the COA issued
Memorandum No. 97-038 on September 19, 1997:
COMMISSION ON AUDIT MEMORANDUM NO. 97-038
SUBJECT: Implementation of Senate Committee Report No. 509, Committee on
Accountability of Public Officers and Investigations and Committee on Civil Service and
Government Reorganization.
The Commission received a copy of Senate Committee Report No. 509 urging the
Commission on Audit to immediately cause the disallowance of any payment of any
form of additional compensation or remuneration to cabinet secretaries, their
deputies and assistants, or their representatives, in violation of the rule on
multiple positions, and to effect the refund of any and all such additional
compensation given to and received by the officials concerned, or their
representatives, from the time of the finality of the Supreme Court ruling in Civil
Liberties Union v. Executive Secretary to the present. In the Civil Liberties Union
case, the Supreme Court ruled that Cabinet Secretaries, their deputies and
assistants may not hold any other office or employment. It declared Executive
Order 284 unconstitutional insofar as it allows Cabinet members, their deputies
and assistants to hold other offices in addition to their primary office and to
receive compensation therefor. The said decision became final and executory on
August 19, 1991.
In view thereof, all unit heads/auditors/team leaders of the national government
agencies and government owned or controlled corporations which have effected
payment of subject allowances, are directed to implement the recommendation

contained in the subject Senate Committee Report by undertaking the following audit
action:
1. On accounts that have not been audited and settled under certificate of
settlements and balances on record from August 19, 1991 to present to
immediately issue the Notices of disallowance and corresponding certificate
of settlements and balances.
2. On accounts that have been audited and settled under certificate of settlements and
balances on record to review and re-open said accounts, issue the corresponding
notices of disallowance, and certify a new balance thereon. It is understood that
the re-opening of accounts shall be limited to those that were settled within
the prescriptive period of three (3) years prescribed in Section 52 of P.D. 1445.
3. On disallowances previously made on these accounts to submit a report on the
status of the disallowances indicating whether those have been refunded/settled or
have become final and executoryand the latest action taken by the Auditor thereon.

All auditors concerned shall ensure that all documents evidencing the disallowed
payments are kept intact on file in their respective offices.
Any problem/issue arising from the implementation of this Memorandum shall be
brought promptly to the attention of the Committee created under COA Officer Order
No. 97-698 thru the Director concerned, for immediate resolution.
An initial report on the implementation of this Memorandum shall be submitted to the
Directors concerned not later than October 31, 1997. Thereafter, a quarterly progress
report on the status of disallowances made shall be submitted, until all the
disallowances shall have been enforced.
The Committee created under COA Office Order No. 97-698, dated September 10,
1997, shall supervise the implementation of this Memorandum which shall take effect
immediately and shall submit a consolidated report thereon in response to the
recommendation of the Senate Committee on Accountability of Public Officers and
Investigation and Committee on Civil Service and Government Reorganization.
(Emphasis supplied)
[9]

Contrary to petitioners claim, COA Memorandum No. 97-038 does not need, for
validity and effectivity, the publication required by Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. This Code shall take
effect one year after such publication.
We clarified this publication requirement in Taada vs. Tuvera:

[10]

[A]ll statutes, including those of local application and private laws, shall be published as
a condition for their effectivity, which shall begin fifteen days after publication unless a
differenteffectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated
by the President in the exercise of legislative powers whenever the same are
validly delegated by the legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating
only the personnel of the administrative agency and not the public, need not be
published.Neither is publication required of the so-called letters of instructions
issued by administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties. (Emphasis
supplied.)
COA Memorandum No. 97-038 is merely an internal and interpretative regulation or
letter of instruction which does not need publication to be effective and valid. It is not an
implementing rule or regulation of a statute but a directive issued by the COA to its
auditors to enforce the self-executing prohibition imposed by Section 13, Article VII of
the Constitution on the President and his official family, their deputies and assistants, or
their representatives from holding multiple offices and receiving double compensation.
Six years prior to the issuance of COA Memorandum No. 97-038, the Court had the
occasion to categorically explain this constitutional prohibition in Civil Liberties Union
vs. TheExecutive Secretary:
[11]

Petitioners maintain that this Executive Order which, in effect, allows members of the
Cabinet, their undersecretaries and assistant secretaries to hold other government
offices or positions in addition to their primary positions, albeit subject to the limitation
therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, which
provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies
or assistants shall not, unless otherwise provided in this Constitution, hold any other
office or employment during their tenure. They shall not, during said tenure, directly or
indirectly practice any other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
xxxxxxxxx
[D]oes the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned admit of the broad

exceptions made for appointive officials in general under Section 7, par. (2),
Article IX-B which, for easy reference is quoted anew, thus: "Unless otherwise
allowed by law or by the primary functions of his position, no appointive official shall
hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporation or their
subsidiaries."
We rule in the negative.
xxxxxxxxx
But what is indeed significant is the fact that although Section 7, Article IX-B already
contains a blanket prohibition against the holding of multiple offices or
employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the President, VicePresident, members of the Cabinet, their deputies and assistants from holding
any other office or employment during their tenure, unless otherwise provided in
the Constitution itself.
xxxxxxxxx
Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such is
allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly authorized
by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay
down the general rule applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the exception applicable
only to the President, the Vice-President, Members of the Cabinet, their deputies
and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the broad
exceptions provided under Section 7, Article IX-B of the 1987 Constitution. . . .
xxxxxxxxx
The prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the Constitution must not, however, be construed as
applying to posts occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided by law and
as required by the primary functions of said officials' office. The reason is that
these posts do no comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and
functions on said officials.

xxxxxxxxx
[T]he prohibition under Section 13, Article VII is not to be interpreted as covering
positions held without additional compensation in ex-officio capacities as
provided by law and as required by the primary functions of the concerned
official's office. The term ex-officio means "from office; by virtue of office." It refers to
an "authority derived from official character merely, not expressly conferred upon the
individual character, but rather annexed to the official position." Ex-officio likewise
denotes an "act done in an official character, or as a consequence of office, and without
any other appointment or authority than that conferred by the office." An ex-officio
member of a board is one who is a member by virtue of his title to a certain office, and
without further warrant or appointment. To illustrate, by express provision of law, the
Secretary of Transportation and Communications is the ex-officio Chairman of the
Board of the Philippine Ports Authority, and the Light Rail Transit Authority.
xxxxxxxxx
The ex-officio position being actually and in legal contemplation part of the principal
office, it follows that the official concerned has no right to receive additional
compensation for his services in the said position. The reason is that these
services are already paid for and covered by the compensation attached to his
principal office. x x x
xxxxxxxxx
[E]x-officio posts held by the executive official concerned without additional
compensation as provided by law and as required by the primary functions of his
office do not fall under the definition of "any other office" within the
contemplation of the constitutional prohibition... (Emphasis supplied).
Judicial decisions applying or interpreting the laws or the Constitution, such as
the Civil Liberties Union doctrine, form part of our legal system. Supreme Court
decisions assume the same authority as valid statutes. The Courts interpretation of the
law is part of that law as of the date of enactment because its interpretation merely
establishes the contemporary legislative intent that the construed law purports to carry
into effect.
[12]

[13]

[14]

COA Memorandum No. 97-038 does not, in any manner or on its own, rule against
or affect the right of any individual, except those provided for under the Constitution.
Hence, publication of said Memorandum is not required for it to be valid, effective and
enforceable.
In Civil Liberties Union, we elucidated on the two constitutional prohibitions against
holding multiple positions in the government and receiving double compensation: (1) the
blanket prohibition of paragraph 2, Section 7, Article IX-B on all government employees
against holding multiple government offices, unless otherwise allowed by law or the
primary functions of their positions, and (2) the stricter prohibition under Section 13,

Article VII on the President and his official family from holding any other office,
profession, business or financial interest, whether government or private, unless
allowed by the Constitution.
The NAC ex officio members representatives who were all appointive officials with
ranks below Assistant Secretary are covered by the two constitutional prohibitions.
First, the NAC ex officio members representatives are not exempt from the general
prohibition because there is no law or administrative order creating a new office or
position and authorizing additional compensation therefor.
Sections 54 and 56 of the Administrative Code of 1987 reiterate the constitutional
prohibition against multiple positions in the government and receiving additional or
double compensation:
SEC. 54. Limitation on Appointment. (1) No elective official shall be eligible for
appointment or designation in any capacity to any public office or position during his
tenure.
xxxxxxxxx
(3) Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.
xxxxxxxxx
SEC. 56. Additional or Double Compensation. -- No elective or appointive public officer
or employee shall receive additional or double compensation unless specifically
authorized by law nor accept without the consent of the President, any present,
emolument, office, or title of any kind form any foreign state.
Pensions and gratuities shall not be considered as additional, double or indirect
compensation.
RA 6758, the Salary Standardization Law, also bars the receipt of such additional
emolument.
The representatives in fact assumed their responsibilities not by virtue of a new
appointment but by mere designation from the ex officio members who were themselves
also designated as such.
There is a considerable difference between an appointment and designation. An
appointment is the selection by the proper authority of an individual who is to exercise
the powers and functions of a given office; a designation merely connotes an imposition
of additional duties, usually by law, upon a person already in the public service by virtue
of an earlier appointment.
[15]

Designation does not entail payment of additional benefits or grant upon the person
so designated the right to claim the salary attached to the position. Without an
appointment, a designation does not entitle the officer to receive the salary of the
position. The legal basis of an employees right to claim the salary attached thereto is a
duly issued and approved appointment to the position, and not a mere designation.
[16]

Second, the ex officio members representatives are also covered by the strict
constitutional prohibition imposed on the President and his official family.
Again, in Civil Liberties Union, we held that cabinet secretaries, including their
deputies and assistants, who hold positions in ex officio capacities, are proscribed from
receiving additional compensation because their services are already paid for and
covered by the compensation attached to their principal offices. Thus, in the attendance
of the NAC meetings, theex officio members were not entitled to, and were in fact
prohibited from, collecting extra compensation, whether it was called per diem,
honorarium, allowance or some other euphemism. Such additional compensation is
prohibited by the Constitution.
Furthermore,
in de
la
Cruz
vs.
COA and Bitonio vs.
COA, we
upheld COAs disallowance of the payment of honoraria and per diems to the officers
concerned who sat as ex officiomembers or alternates. The agent, alternate or
representative cannot have a better right than his principal, the ex officio member. The
laws, rules, prohibitions or restrictions that cover theex officio member apply with equal
force to his representative. In short, since the ex officio member is prohibited from
receiving additional compensation for a position held in an ex officiocapacity, so is his
representative likewise restricted.
[17]

[18]

The Court also finds that the re-opening of the NAC accounts within three years
after its settlement is within COAs jurisdiction under Section 52 of Presidential Decree
No. 1445, promulgated on June 11, 1978:
SECTION 52. Opening and revision of settled accounts. (1) At any time before the
expiration of three years after the settlement of any account by an auditor, the
Commission may motupropio review and revise the account or settlement and certify a
new balance.
More importantly, the Government is never estopped by the mistake or error on the
part of its agents. Erroneous application and enforcement of the law by public officers
do not preclude subsequent corrective application of the statute.
[19]

In declaring Section 1, Rule II of Administrative Order No. 2 s. 1999 null and void,
the COA ruled that:
Petitioner further contends that with the new IRR issued by the NAC authorizing the exofficio members to designate representatives to attend commission meetings and
entitling them to receive per diems, honoraria and other allowances, there is now no
legal impediment since it was approved by the President. This Commission begs to
disagree. Said provision in the new IRR is null and void for having been promulgated in
excess of its rule-making authority. Proclamation No. 347, the presidential issuance

creating the NAC, makes no mention that representatives of ex-officio members can
take the place of said ex-officio members during its meetings and can receive per diems
and allowances. This being the case, the NAC, in the exercise of its quasi-legislative
powers, cannot add, expand or enlarge the provisions of the issuance it seeks to
implement without committing an ultra vires act.
[20]

We find that, on its face, Section 1, Rule II of Administrative Order No. 2 is valid, as
it merely provides that:
The ex officio members may designate their representatives to the Commission.
Said Representatives shall be entitled to per diems, allowances, bonuses and other
benefits as may be authorized by law. (Emphasis supplied).
The problem lies not in the administrative order but how the NAC and the COA
interpreted it.
First, the administrative order itself acknowledges that payment of allowances to the
representatives must be authorized by the law, that is, the Constitution, statutes and
judicial decisions. However, as already discussed, the payment of such allowances is
not allowed, prohibited even.
Second, the administrative order merely allows the ex officio members to designate
their representatives to NAC meetings but not to decide for them while attending such
meetings. Section 4 of the administrative order categorically states:
Decisions of the NAC shall be arrived at by a majority vote in a meeting where there is a
quorum consisting of at least four members.
Thus, although the administrative order does not preclude the representatives from
attending the NAC meetings, they may do so only as guests or witnesses to the
proceedings. They cannot substitute for the ex officio members for purposes of
determining quorum, participating in deliberations and making decisions.
Lastly, we disagree with NACs position that the representatives are de facto officers
and as such are entitled to allowances, pursuant to our pronouncement in Civil Liberties
Union:
where there is no de jure officer, a de facto officer, who in good faith has had
possession of the office and has discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in appropriate action recover the
salary, fees and other compensation attached to the office.
A de facto officer derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its face.
(He is) one who is in possession of an office and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent be not a mere volunteer.
[21]

The representatives cannot be considered de facto officers because they were not
appointed but were merely designated to act as such. Furthermore, they are not entitled
to something their own principals are prohibited from receiving. Neither can they claim
good faith, given the express prohibition of the Constitution and the finality of our
decision in Civil Liberties Unionprior to their receipt of such allowances.
WHEREFORE the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Callejo, Sr., Azcuna, Tinga and Chico-Nazario, JJ., concur.
Austria-Martinez and Carpio Morales JJ., on official leave.

[1]

Under Rule 64 of the 1997 Rules of Civil Procedure.

[2]

Composed by COA Chairman Guillermo N. Carague, Commissioners Raul C. Flores and Emmanuel
M. Dalman.

[3]

COA Decision No. 2001-144

[4]

COA Decision No. 2003-026.

[5]

NGAO Decision No. 98-006, penned by COA Director Juanito G. Espino, Jr.

[6]

Section 4, Proclamation No. 347, March 25, 1994, as amended by Proclamation No. 724, May 17, 1996,
Proclamation No. 21, September 23, 1998, Proclamation Nos. 10 and 10-A and Proclamation No.
405, October 26, 2000.

[7]

Rollo, pp. 78-79.

[8]

Rollo, pp. 53-54.

[9]

Rollo, pp. 90-91.

[10]

146 SCRA 446, 453-454 [1986].

[11]

194 SCRA 317 [1991].

[12]

Article 8 of the Civil Code of the Philippines.

[13]

Floresca vs. Philex Mining Corporation, 136 SCRA 141 [1985].

[14]

People vs. Licera, 65 SCRA 270 [1975].

[15]

Dimaandal vs. COA, 291 SCRA 322 [1998]; Santiago vs. COA, 199 SCRA 125 [1991].

[16]

Dimaandal vs. COA, 291 SCRA 322, 329 [1998].

[17]

371 SCRA 157 [2001].

[18]

G.R. No. 147392, March 12, 2004.

[19]

Philippine Basketball Association vs. Court of Appeals, 337 SCRA 358 [2000]; Baybay Water District vs.
COA, 374 SCRA 482 [2002].

[20]

COA Decision No. 2001-144; Rollo, p. 358.

[21]

Dimaandal vs. COA, 291 SCRA 322, 329 [1998].

EN BANC

[G.R. No. 147392. March 12, 2004]

BENEDICTO ERNESTO R. BITONIO, JR., petitioner, vs. COMMISSION

ON AUDIT and CELSO D. GANGAN, CHAIRMAN OF THE
COMMISSION ON AUDIT, respondents.
DECISION
CALLEJO, SR., J.:

The instant petition filed under Rule 64 of the Revised Rules of Court seeks the
annulment of the Decision of the Commission on Audit (COA) dated January 30, 2001
denying the petitioners motion for the reconsideration of the COA Notices of
Disallowance Nos. 98-008-101 (95) and 98-017-101 (97) dated July 31, 1998 and
October 9, 1998, respectively, involving the per diems the petitioner received from the
Philippine Economic Zone Authority (PEZA). In order to avoid multiplicity of suits, an
Amended Petition dated August 16, 2002 was later filed to include in the resolution of
the instant petition Notice of Disallowance No. 98-003-101 (96) dated July 31, 1998
which was belatedly received by the petitioner on August 13, 2002.
[1]

[2]

The antecedent facts are as follows:

In 1994, petitioner Benedicto Ernesto R. Bitonio, Jr. was appointed Director IV of the
Bureau of Labor Relations in the Department of Labor and Employment.
In a Letter dated May 11, 1995 addressed to Honorable Rizalino S. Navarro, then
Secretary of the Department of Trade and Industry, Acting Secretary Jose S. Brilliantes
of the Department of Labor and Employment designated the petitioner to be the DOLE
representative to the Board of Directors of PEZA. Such designation was in pursuance
to Section 11 of Republic Act No. 7916, otherwise known as the Special Economic Zone
Act of 1995, which provides:
[3]

Section 11. The Philippine Economic Zone Authority (PEZA) Board. There is hereby
created a body corporate to be known as the Philippine Economic Zone Authority
(PEZA)
The Board shall be composed of the Director General as ex officio chairman with
eight (8) members as follows: the Secretaries or their representatives of the
Department of Trade and Industry, the Department of Finance, the Department of
Labor and Employment, the Department of [the] Interior and Local Government, the

National Economic and Development Authority, and the Bangko Sentral ng Pilipinas,
one (1) representative from the labor sector, and one (1) representative from the
investor/business sector in the ECOZONE.
Members of the Board shall receive a per diem of not less than the amount equivalent
to the representation and transportation allowances of the members of the Board
and/or as may be determined by the Department of Budget and
Management: Provided, however, That the per diem collected per month does not
exceed the equivalent of four (4) meetings.
As representative of the Secretary of Labor to the PEZA, the petitioner was
receiving a per diem for every board meeting he attended during the years 1995 to
1997.
After a post audit of the PEZAs disbursement transactions, the COA disallowed the
payment of per diems to the petitioner and thus issued the following:
(a) Notice of Disallowance No. 98-008-101 (95) dated July 31, 1998 for the total
sum of P24,500 covering the period of July-December 1995;
(b) Notice of Disallowance No. 98-003-101 (96) also dated July 31, 1998 for a total
amount of P100,000 covering the period of January 1996 to January 1997;
[4]

(c) Notice of Disallowance No. 98-017-101 (97) dated October 9, 1998 for the total
amount of P210,000 covering the period of February 1997 to January 1998.
The uniform reason for the disallowance was stated in the Notices, as follows:

Cabinet members, their deputies and assistants holding other offices in addition to
their primary office and to receive compensation therefore was declared
unconstitutional by the Supreme Court in the Civil Liberties Union vs. Executive
Secretary. Disallowance is in pursuance to COA Memorandum No. 97-038
dated September 19, 1997 implementing Senate Committee Report No. 509.
[5]

On November 24, 1998, the petitioner filed his motion for reconsideration to the
COA on the following grounds:

1. The Supreme Court in its Resolution dated August 2, 1991 on the motion for
clarification filed by the Solicitor General modified its earlier ruling in
the Civil Liberties Union case which limits the prohibition to Cabinet
Secretaries, Undersecretaries and their Assistants. Officials given the rank
equivalent to a Secretary, Undersecretary or Assistant Secretary and other
appointive officials below the rank of Assistant Secretary are not covered by
the prohibition.

2. Section 11 of R.A. No. 7916 provides the legal basis for the movant to
receive per diem. Said law was enacted in 1995, four years after the Civil
Liberties Union case became final. In expressly authorizing per diems,
Congress should be conclusively presumed to have been aware of the
parameters of the constitutional prohibition as interpreted in the Civil Liberties
Union case.
[6]

On January 30, 2001, the COA rendered the assailed decision denying petitioners
motion for reconsideration.
Hence, this petition.
The issue in this case is whether or not the COA correctly disallowed the per
diems received by the petitioner for his attendance in the PEZA Board of Directors
meetings as representative of the Secretary of Labor.
We rule in the affirmative.
The COA anchors the disallowance of per diems in the case of Civil Liberties Union
v. Executive Secretary where the Court declared Executive Order No. 284 allowing
government officials to hold multiple positions in government, unconstitutional. Thus,
Cabinet Secretaries, Undersecretaries, and their Assistant Secretaries, are prohibited to
hold other government offices or positions in addition to their primary positions and to
receive compensation therefor, except in cases where the Constitution expressly
provides. The Courts ruling was in conformity with Section 13, Article VII of the 1987
Constitution which reads:
[7]

[8]

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies
or assistants shall not, unless otherwise provided in this Constitution, hold any other
office or employment during their tenure. They shall not, during their tenure, directly
or indirectly, practice any other profession, participate in any business or be
financially interested in any other contract with, or in any franchise, or special
privilege granted by the Government or any subdivision, agency or instrumentality
thereof, including any government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
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 governmentowned or controlled corporations and subsidiaries.
Pursuant to the Courts ruling in this case and the Senate Committee Report on the
Accountability of Public Officers and Investigations (Blue Ribbon), the COA issued
Memorandum No. 97-038 which authorized the issuance of the Notices of
Disallowances for the per diems received by the petitioner. It states:
[9]

The Commission received a copy of Senate Committee Report No. 509 urging the
Commission on Audit to immediately cause the disallowance of any payment of any
form of additional compensation or remuneration to cabinet secretaries, their deputies
and assistants, or their representatives in violation of the rule on multiple positions
and to effect the refund of any and all such additional compensation given to and
received by the officials concerned, or their representatives, from the time of the
finality of the Supreme Court ruling in Civil Liberties Union vs. Executive Secretary
to the present. In the Civil Liberties Union case, the Supreme Court ruled that Cabinet
Secretaries, their deputies and assistants may not hold any other office or
employment. It declared Executive Order No. 284 unconstitutional insofar as it allows
Cabinet members, their deputies and assistants to hold other offices in addition to their
primary office and to receive compensation therefor. The said decision became final
and executory onAugust 19, 1991.
In view thereof, all unit heads/auditors/team leaders of the national government
agencies and government-owned or controlled corporations which have effected
payment of subject allowances are directed to implement the recommendation
contained in the subject Senate Committee Report by undertaking the following audit
action:
[10]

The petitioner maintains that he is entitled to the payment of per diems, as R.A. No.
7916 specifically and categorically provides for the payment of a per diem for the
attendance of the members of the Board of Directors at board meetings of PEZA. The
petitioner contends that this law is presumed to be valid; unless and until the law is
declared unconstitutional, it remains in effect and binding for all intents and
purposes. Neither can this law be rendered nugatory on the basis of a mere
memorandum circular COA Memorandum No. 97-038 issued by the COA. The
petitioner stresses that R.A. No. 7916 is a statute more superior than an administrative
directive and the former cannot just be repealed or amended by the latter.
The petitioner also posits that R.A. No. 7916 was enacted four (4) years after the
case of Civil Liberties Union was promulgated. It is, therefore, assumed that the
legislature, before enacting a law, was aware of the prior holdings of the courts. Since
the constitutionality or the validity of R.A. No. 7916 was never challenged, the provision
on the payment of per diemsremains in force notwithstanding the Civil Liberties
Union case. Nonetheless, the petitioners position as Director IV is not included in the
enumeration of officials prohibited to receive additional compensation as clarified in the
Resolution of the Court dated August 1, 1991; thus, he is still entitled to receive the per
diems.
The petitioners contentions are untenable.
It must be noted that the petitioners presence in the PEZA Board meetings is solely
by virtue of his capacity as representative of the Secretary of Labor. As the petitioner
himself admitted, there was no separate or special appointment for such position.
Since the Secretary of Labor is prohibited from receiving compensation for his
[11]

additional office or employment, such prohibition likewise applies to the petitioner who
sat in the Board only in behalf of the Secretary of Labor.
The petitioners case stands on all fours with the case of Dela Cruz v. Commission
on Audit. Here, the Court upheld the COA in disallowing the payment
of honoraria and per diems to the officers concerned who sat as members of the Board
of Directors of the National Housing Authority. The officers concerned sat as alternates
of their superiors in an ex officio capacity.Citing also the Civil Liberties Union case, the
Court explained thus:
[12]

The ex-officio position being actually and in legal contemplation part of the principal
office, it follows that the official concerned has no right to receive additional
compensation for his services in the said position. The reason is that these services are
already paid for and covered by the compensation attached to his principal office. It
should be obvious that if, say, the Secretary of Finance attends a meeting of the
Monetary Board as an ex-officio member thereof, he is actually and in legal
contemplation performing the primary function of his principal office in defining
policy in monetary banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any extra
compensation, whether it be in the form of a per diem or an honorarium or an
allowance, or some other such euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution.
Since the Executive Department Secretaries, as ex-officio members of the NHA
Board, are prohibited from receiving extra (additional) compensation, whether it be in
the form of a per diem or an honorariumor an allowance, or some other such
euphemism, it follows that petitioners who sit as their alternates cannot likewise be
entitled to receive such compensation. A contrary rule would give petitioners a better
right than their principals.
[13]

Similarly in the case at bar, we cannot allow the petitioner who sat as representative
of the Secretary of Labor in the PEZA Board to have a better right than his principal. As
the representative of the Secretary of Labor, the petitioner sat in the Board in the same
capacity as his principal. Whatever laws and rules the member in the Board is covered,
so is the representative; and whatever prohibitions or restrictions the member is
subjected, the representative is, likewise, not exempted. Thus, his position as Director
IV of the DOLE which the petitioner claims is not covered by the constitutional
prohibition set by the Civil Liberties Union case is of no moment. The petitioner attended
the board meetings by the authority given to him by the Secretary of Labor to sit as his
representative. If it were not for such designation, the petitioner would not have been in
the Board at all.
There is also no merit in the allegation that the legislature was certainly aware of the
parameters set by the Court when it enacted R.A. No. 7916, four (4) years after the
finality of theCivil Liberties Union case. The payment of per diems was clearly an

express grant in favor of the members of the Board of Directors which the petitioner is
entitled to receive.
It is a basic tenet that any legislative enactment must not be repugnant to the
highest law of the land which is the Constitution. No law can render nugatory the
Constitution because the Constitution is more superior to a statute. If a law happens to
infringe upon or violate the fundamental law, courts of justice may step in to nullify its
effectiveness. It is the task of the Court to see to it that the law must conform to the
Constitution. In the clarificatory resolution issued by the Court in the Civil Liberties
Union case on August 1, 1991, the Court addressed the issue as to the extent of the
exercise of legislative prerogative, to wit:
[14]

[15]

The Solicitor General next asks: x x x may the Decision then control or otherwise
encroach on the exclusive competence of the legislature to provide funds for a public
purpose, in terms of compensation orhonoraria under existing laws, where in the
absence of such provision said laws would otherwise meet the terms of the exception
by law? Again, the question is anchored on a misperception. It must be stressed that
the so-called exclusive competence of the legislature to provide funds for a public
purpose or to enact all types of laws, for that matter, is not unlimited. Such
competence must be exercised within the framework of the fundamental law
from which the Legislature draws its power and with which the resulting
legislation or statute must conform. When the Court sets aside legislation for
being violative of the Constitution, it is not thereby substituting its wisdom for
that of the Legislature or encroaching upon the latters prerogative, but again
simply discharging its sacred task of safeguarding and upholding the paramount
law.
The framers of R.A. No. 7916 must have realized the flaw in the law which is the reason
why the law was later amended by R.A. No. 8748 to cure such defect. In particular,
Section 11 of R.A. No. 7916 was amended to read:
[16]

SECTION 11. The Philippine Economic Zone Authority (PEZA) Board. There is
hereby created a body corporate to be known as the Philippine Economic Zone
Authority (PEZA) attached to the Department of Trade and Industry. The Board shall
have a director general with the rank of department undersecretary who shall be
appointed by the President. The director general shall be at least forty (40) years of
age, of proven probity and integrity, and a degree holder in any of the following
fields: economics, business, public administration, law, management or their
equivalent, and with at least ten (10) years relevant working experience preferably in
the field of management or public administration.
The director general shall be assisted by three (3) deputy directors general each for
policy and planning, administration and operations, who shall be appointed by the
PEZA Board, upon the recommendation of the director general. The deputy directors

general shall be at least thirty-five (35) years old, with proven probity and integrity
and a degree holder in any of the following fields: economics, business, public
administration, law, management or their equivalent.
The Board shall be composed of thirteen (13) members as follows: the Secretary of
the Department of Trade and Industry as Chairman, the Director General of the
Philippine Economic Zone Authority as Vice-chairman, the undersecretaries of the
Department of Finance, the Department of Labor and Employment, the Department of
[the] Interior and Local Government, the Department of Environment and Natural
Resources, the Department of Agriculture, the Department of Public Works and
Highways, the Department of Science and Technology, the Department of Energy, the
Deputy Director General of the National Economic and Development Authority, one
(1) representative from the labor sector, and one (1) representative from the
investors/business sector in the ECOZONE. In case of the unavailability of the
Secretary of the Department of Trade and Industry to attend a particular board
meeting, the Director General of PEZA shall act as Chairman.
[17]

As can be gleaned from above, the members of the Board of Directors was
increased from 8 to 13, specifying therein that it is the undersecretaries of the different
Departments who should sit as board members of the PEZA. The option of designating
his representative to the Board by the different Cabinet Secretaries was
deleted. Likewise, the last paragraph as to the payment of per diems to the members of
the Board of Directors was also deleted, considering that such stipulation was clearly in
conflict with the proscription set by the Constitution.
Prescinding from the above, the petitioner is, indeed, not entitled to receive a per
diem for his attendance at board meetings during his tenure as member of the Board of
Director of the PEZA.
IN LIGHT OF THE FOREGOING, the petition is DISMISSED. The assailed decision
of the COA is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Vitug, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.
Puno, J., on leave.
Panganiban, J., On official leave.
Quisumbing, J., No part, due prior Executive action at DOLE.

COA Decision No. 2001-045 signed by Commissioner Celso D. Gangan, Chairman, with
Commissioners Emmanuel M. Dalman and Raul C. Flores concurring. Rollo, p. 27.
[1]

[2]

Rollo, p. 98.

[3]

Annex A, Rollo, p. 135.

[4]

Included per Amended Petition.

[5]

Rollo, pp. 136-138.

[6]

Id. at 28.

[7]

194 SCRA 317 (1991).

SECTION 1. Even if allowed by law or by the ordinary functions of his position, a member of the
Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department
may, in addition to his primary position, hold not more than two positions in the government and
government corporations and receive the corresponding compensation therefor; Provided, that this
limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the
President is the Chairman.
[8]

Rollo, p. 141

[9]

[10]

Id. at 51.

[11]

Id. at 5.

[12]

371 SCRA 157 (2001).

[13]

Id. at 164.

[14]

Aquino v. COMELEC, 248 SCRA 400 (1995).

[15]

See Garcia v. Mata, 65 SCRA 517 (1975).

[16]

Enacted on June 1, 1999.

[17]

Section 1, Republic Act No. 8748.

THIRD DIVISION

PUBLIC
INTEREST
CENTER, INC., LAUREANO
T. ANGELES and JOCELYN
P. CELESTINO,

G.R. No. 138965

Present:

Petitioners,
YNARES-SANTIAGO, J.,
- versus -

Chairperson,

MAGDANGAL B. ELMA, as
Chief Presidential Legal
Counsel and as Chairman
of
the
Presidential
Commission
on
Good
Government,
and
RONALDOZAMORA,
as
Executive Secretary,
Accused-Appellant.

AUSTRIA-MARTINEZ,
CALLEJO, SR.,*
CHICO-NAZARIO, and
NACHURA, JJ.

Promulgated:

March 5, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION

CHICO-NAZARIO, J.:

For consideration is the Omnibus Motion, dated 14 August 2006,

where
respondent Magdangal B.
Elma
sought:
(1)
the
reconsideration of the Decision in the case of Public Interest
Center, Inc., et al. v. Magdangal B. Elma, et al. (G.R. No. 138965),
promulgated on 30 June 2006; (2) the clarification of
the dispositive part of the Decision; and (3) the elevation of the
case to the Court en banc. The Solicitor General, in behalf of the
respondents, filed an Omnibus Motion, dated 11 August 2006,
with substantially the same allegations.

Respondent Elma was appointed as Chairman of the Presidential

Commission on Good Government (PCGG) on 30 October
1998. Thereafter, during his tenure as PCGG Chairman, he was
appointed as Chief Presidential Legal Counsel (CPLC). He
accepted
the
second
appointment,
but
waived
any renumeration that he may receive as CPLC.Petitioners sought
to have both appointments declared as unconstitutional and,
therefore, null and void.

In its Decision, the Court declared that the concurrent

appointments of the respondent as PCGG Chairman and CPLC
were unconstitutional. It ruled that the concurrent appointment to
these offices is in violation of Section 7, par. 2, Article IX-B of the
1987 Constitution, since these are incompatible offices. The
duties of the CPLC include giving independent and impartial legal
advice on the actions of the heads of various executive
departments and agencies and reviewing investigations involving
heads of executive departments. Since the actions of the PCGG
Chairman, a head of an executive agency, are subject to the
review of the CPLC, such appointments would be incompatible.

The Court also decreed that the strict prohibition under Section 13
Article VII of the 1987 Constitution would not apply to the present
case, since neither the PCGG Chairman nor the CPLC is a
secretary, undersecretary, or assistant secretary. However, had
the rule thereunder been applicable to the case, the defect of
these two incompatible offices would be made more glaring. The
said section allows the concurrent holding of positions only when
the second post is required by the primary functions of the first
appointment and is exercised in an ex-officio capacity. Although
respondent Elma waived receiving renumeration for the second
appointment, the primary functions of the PCGG Chairman do not
require his appointment as CPLC.
After reviewing the arguments propounded in respondents
Omnibus Motions, we find that the basic issues that were raised
have already been passed upon. No substantial arguments were

presented. Thus, the Court denies the respondents motion for

reconsideration.

In response to the respondents request for clarification, the Court

ruled that respondent Elmas concurrent appointments as PCGG
Chairman and CPLC are unconstitutional, for being incompatible
offices. This ruling does not render both appointments
void. Following the common-law rule on incompatibility of offices,
respondent Elma had, in effect, vacated his first office as PCGG
Chairman when he accepted the second office as CPLC. [1]

There also is no merit in the respondents motion to refer the case

to the Court en banc. What is in question in the present case is
the
constitutionality
of
respondent
Elmas
concurrent
appointments, and not the constitutionality of any treaty, law or
agreement.[2] The mere application of constitutional provisions
does not require the case to be heard and decided en
banc. Contrary to the allegations of the respondent, the decision
of the Court in this case does not modify the ruling in Civil
Liberties Union v. Executive Secretary. It should also be noted that
Section 3 of Supreme Court Circular No. 2-89, dated 7 February
1989 clearly provides that the Court en banc is not an Appellate
Court to which decisions or resolutions of a Division may be
appealed.

WHEREFORE, the Court denies the respondents motion for

reconsideration and for elevation of this case to the Court en
banc.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Resolution were reached

in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the

Division Chairpersons Attestation, it is hereby certified that the
conclusions in the above Resolution were reached in consultation
before the case was assigned to the writer of the opinion of the
Courts Division.

THIRD DIVISION

PUBLIC
INTEREST
CENTER, INC., LAUREANO
T. ANGELES and JOCELYN
P. CELESTINO,

G.R. No. 138965

Present:

Petitioners,
YNARES-SANTIAGO, J.,
- versus -

MAGDANGAL B. ELMA, as
Chief Presidential Legal
Counsel and as Chairman
of
the
Presidential
Commission
on
Good
Government,
and
RONALDOZAMORA,
as
Executive Secretary,

Chairperson,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,*
CHICO-NAZARIO, and
NACHURA, JJ.

Accused-Appellant.
Promulgated:

March 5, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION

CHICO-NAZARIO, J.:

For consideration is the Omnibus Motion, dated 14 August 2006,

where
respondent Magdangal B.
Elma
sought:
(1)
the
reconsideration of the Decision in the case of Public Interest
Center, Inc., et al. v. Magdangal B. Elma, et al. (G.R. No. 138965),
promulgated on 30 June 2006; (2) the clarification of
the dispositive part of the Decision; and (3) the elevation of the
case to the Court en banc. The Solicitor General, in behalf of the
respondents, filed an Omnibus Motion, dated 11 August 2006,
with substantially the same allegations.

Respondent Elma was appointed as Chairman of the Presidential

Commission on Good Government (PCGG) on 30 October
1998. Thereafter, during his tenure as PCGG Chairman, he was
appointed as Chief Presidential Legal Counsel (CPLC). He
accepted
the
second
appointment,
but
waived
any renumeration that he may receive as CPLC.Petitioners sought
to have both appointments declared as unconstitutional and,
therefore, null and void.

In its Decision, the Court declared that the concurrent

appointments of the respondent as PCGG Chairman and CPLC
were unconstitutional. It ruled that the concurrent appointment to
these offices is in violation of Section 7, par. 2, Article IX-B of the
1987 Constitution, since these are incompatible offices. The
duties of the CPLC include giving independent and impartial legal
advice on the actions of the heads of various executive
departments and agencies and reviewing investigations involving
heads of executive departments. Since the actions of the PCGG
Chairman, a head of an executive agency, are subject to the
review of the CPLC, such appointments would be incompatible.

The Court also decreed that the strict prohibition under Section 13
Article VII of the 1987 Constitution would not apply to the present
case, since neither the PCGG Chairman nor the CPLC is a
secretary, undersecretary, or assistant secretary. However, had
the rule thereunder been applicable to the case, the defect of
these two incompatible offices would be made more glaring. The
said section allows the concurrent holding of positions only when
the second post is required by the primary functions of the first
appointment and is exercised in an ex-officio capacity. Although
respondent Elma waived receiving renumeration for the second
appointment, the primary functions of the PCGG Chairman do not
require his appointment as CPLC.
After reviewing the arguments propounded in respondents
Omnibus Motions, we find that the basic issues that were raised
have already been passed upon. No substantial arguments were
presented. Thus, the Court denies the respondents motion for
reconsideration.

In response to the respondents request for clarification, the Court

ruled that respondent Elmas concurrent appointments as PCGG
Chairman and CPLC are unconstitutional, for being incompatible
offices. This ruling does not render both appointments
void. Following the common-law rule on incompatibility of offices,

respondent Elma had, in effect, vacated his first office as PCGG

Chairman when he accepted the second office as CPLC. [1]

There also is no merit in the respondents motion to refer the case

to the Court en banc. What is in question in the present case is
the
constitutionality
of
respondent
Elmas
concurrent
appointments, and not the constitutionality of any treaty, law or
agreement.[2] The mere application of constitutional provisions
does not require the case to be heard and decided en
banc. Contrary to the allegations of the respondent, the decision
of the Court in this case does not modify the ruling in Civil
Liberties Union v. Executive Secretary. It should also be noted that
Section 3 of Supreme Court Circular No. 2-89, dated 7 February
1989 clearly provides that the Court en banc is not an Appellate
Court to which decisions or resolutions of a Division may be
appealed.

WHEREFORE, the Court denies the respondents motion for

reconsideration and for elevation of this case to the Court en
banc.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Resolution were reached

in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the

Division Chairpersons Attestation, it is hereby certified that the
conclusions in the above Resolution were reached in consultation
before the case was assigned to the writer of the opinion of the
Courts Division.

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

REYNATO S. PUNO
Chief Justice

In the case title as indicated in the petition, only the name of Usec. Thomas G. Aquino appears in the portion for
Respondents, to wit: HON. THOMAS G. AQUINO, in his capacity as Chairman and Chief Delegate of the
Philippine Coordinating Committee for the Japan-Philippines Economic Partnership Agreement, et
al. (Underscoring supplied) The other respondents are enumerated in the body of the petition. (Rollo, pp. 2023) The Court motu proprio included the names of these other respondents in the case title to conform to Sec. 1,
par. 2, Rule 7 of the Rules of Civil Procedure, as well as the capacities in which they are being sued. Moreover,
it inserted therein that respondent Usec. Aquino, as stated in the petition, is also being sued in his capacity as
DTI Undersecretary.
[1]
Effective May 28, 2003.
[2]
Annex F of Petition, rollo, p. 95.
[3]
The Petition quoted the following statement of Congressman Teves appearing in the transcript of the Committee
hearing held on October 12, 2005:
THE CHAIRPERSON. Now I call on Usec. Aquino to furnish us a copy of the draft JPEPA and enunciate to this
body the positive as well as the negative impact of said agreement. Is this the draft that the government will
sign in December or this will still be subjected to revisions in the run-up to its signing? x x x We requested
also to subpoena this but then the Speaker requested me to hold in abeyance because he wanted to
get a (sic) consent of the President before we can x xx the department can furnish us a copy of this
agreement. (Rollo, p. 32)
[4]
Id. at 16.
[5]
Annex A, Comment, rollo, p. 207.
[6]
Respondents Manifestation dated September 12, 2007; vide Business Philippines: A Department of Trade and
Industry
Website at www.business.gov.ph,
particularly www.business.gov.ph/DTI_News.php?
contentID=136 (visited August 9, 2007).
[7]
Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987; 150 SCRA 530, 535.
[8]
G.R. No. 158088, July 6, 2005; 462 SCRA 622, 630-631.
[9]
Supra note 7 at 536.
[10]
Reply to the Comment of the Solicitor General, rollo, p. 319 (underscoring supplied).

[11]

Business Philippines: A
Department
of
Trade
and
Industry
Website, http://www.business.gov.ph/filedirectory/JPEPA.pdf, accessed on June 12, 2007.
[12]
By Resolution dated August 28, 2007, this Court directed the parties to manifest whether the Philippine and
Japanese offers have been made accessible to the public just like the full text of the JPEPA and, if not, whether
petitioners still intend to pursue their prayer to be provided with copies thereof. In compliance, petitioners
manifested that the offers have not yet been made public and reiterated their prayer that respondents be
compelled to provide them with copies thereof, including all pertinent attachments and annexes thereto
(Manifestation and Motion dated September 17, 2007). Respondents, on the other hand, asserted that the offers
have effectively been made accessible to the public since September 11, 2006 (Manifestation dated September
12, 2007). Respondents claim does not persuade, however. By their own manifestation, the documents posted
on the DTI website on that date were only the following: (1) Joint Statement on the Occasion of the Signing of
the Agreement between Japan and the Republic of the Philippines, (2) the full text of the JPEPA itself and its
annexes, (3) the JPEPA implementing Agreement, and (4) resource materials on the JPEPA including
presentations of the [DTI] during the hearings of the Senates Committee on Trade and Commerce and
Committee on Economic Affairs. While these documents no doubt provide very substantial information on the
JPEPA, the publication thereof still falls short of addressing the prayer of petitioners to be provided with copies
of the Philippine and Japanese offers. Thus, the petition, insofar as it prays for access to these offers, has not
become moot.
[13]
CONSTITUTION, Art. III, Sec. 7.
[14]
Id. at Art. II, Sec. 28.
[15]
Id. at Art. XIII, Sec. 16.
[16]
Supra note 7 at 541.
[17]
314 Phil. 150 (1995).
[18]
360 Phil. 133 (1998).
[19]
433 Phil. 506 (2002).
[20]
G.R. No. 169777, April 20, 2006, 488 SCRA 1.
[21]
Id. at 51.
[22]
Rollo, pp. 191-192.
[23]
360 Phil. 133, 764 (1998), citing V RECORD OF THE CONSTITUTIONAL COMMISSION 25 (1986).
[24]
G.R. No. 84642, Resolution of the Court En Banc dated September 13, 1988.
[25]
Specifically, petitioners therein asked that the Court order respondents to (1) open to petitioners their
negotiations/sessions with the U.S. counterparts on the agreement; (2) reveal and/or give petitioners access to
the items which they have already agreed upon; and (3) reveal and/or make accessible the respective positions
on items they have not agreed upon, particularly the compensation package for the continued use by the U.S. of
their military bases and facilities in the Philippines.
[26]

299 U.S. 304 (1936).

Vide Xerox Corp. v. U.S. (12 Cl.Ct. 93). Against the claim of a taxpayer for the production of a letter from
the Inland Revenue of the United Kingdom to the associate commissioner of the Internal Revenue Service
(IRS), defendant asserted a claim of privilege, relying on the affidavit of Lawrence B. Gibbs, Commissioner of
IRS, which stated that the production of the letter would impair the United States government's ability to deal
with the tax authorities of foreign governments * * * by breaching the historic confidentiality of negotiations
between the United States and foreign sovereigns * * *. (Emphasis supplied) The U.S. court therein ruled
thus: Given the context in which the letter in question was written, it is reasonable to conclude that frank and
honest expression of views on the treaty language in issue were expressed, views that ostensibly were
expressed in the belief that historic confidentiality would govern such expressions. (Underscoring supplied)
[28]
B. DuVal, Jr., Project Director, American Bar Foundation. B.A., 1958, University of Virginia; J.D.,
1961, Yale University, THE OCCASIONS OF SECRECY (47 U. Pitt. L. Rev. 579).
[29]
Supra note 20 at 46.
[30]
Ibid.
[31]
Supra note 19 at 189.
[32]
Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 162 U.S.App.D.C. 183.
[33]
Vide Arnault v. Nazareno, 87 PHIL. 29, 46 (1950): In the present case the jurisdiction of the Senate, thru the
Special Committee created by it, to investigate the Buenavista and Tambobong estates deal is not challenged by
the petitioner; and we entertain no doubt as to the Senates authority to do so and as to the validity of Resolution
[27]

No. 8 hereinabove quoted. The transaction involved a questionable and allegedly unnecessary and irregular
expenditure of no less than P5,000,000 of public funds, of which Congress is the constitutional guardian. x x x
[34]
421 U.S., at 150, 95 S.Ct. 1504, reiterated in Department of the Interior and Bureau of Indian Affairs v. Klamath
Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060.
[35]
Id. at 151, 95 S.Ct. 1504 (emphasis supplied).
[36]
Supra note 24.
[37]
545 F.Supp. 615, May 28, 1982.
[38]
237 F.Supp.2d 17.
[39]
5 U.S.C. 552(b)(5).
[40]
CIEL v. Office of U.S. Trade Representative, 237 F.Supp.2d 17. Vide Department of the Interior and Bureau of
Indian Affairs v. Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060: Exemption 5 protects
from disclosure inter-agency or intra-agency memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency. 5 U.S.C. 552(b)(5). To qualify, a document must thus
satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege
against discovery under judicial standards that would govern litigation against the agency that holds it.
[41]
Supra note 20 at 46 (emphasis supplied).
[42]
Petitioners expound as follows:
It has been 18 years since the PMPF v. Manglapus case, and the world has changed considerably in that span of
time. The Berlin Wall fell in 1989, bringing down with it the Cold War and its attendant hostilities, and
ushering in a new era of globalization and international economic cooperation as we know
it. The Philippines now finds itself part of an international economic community as a member of both the
ASEAN Free Trade Area (AFTA) and the World Trade Organization (WTO). Domestically, this Honorable
Court has repeatedly upheld the peoples right to information on matters of public concern, allowing
ordinary Filipino citizens to inquire into various government actions such as GSIS loans to public officials,
settlement of Marcos ill-gotten wealth, and sale of reclaimed land to foreign corporations. (Rollo, p. 326)
[43]
Rollo, pp. 50-51.
[44]
Supra note 18.
[45]
Supra note 19.
[46]
433 Phil. 506, 534 (2002), citing PMPF v. Manglapus, supra note 24 and Chavez v. PCGG, supra note 18.
[47]
In re Sealed Case (121 F.3d 729, 326 U.S.App.D.C. 276 [1997]) states thus: Nixon, GSA, Sirica, and the
other Nixon cases all employed a balancing methodology in analyzing whether, and in what circumstances, the
presidential communications privilege can be overcome. Under this methodology, these opinions balanced
the public interests served by protecting the President's confidentiality in a particular context with those
furthered by requiring disclosure.(Emphasis supplied)
[48]
418 U.S. 683 (1974).
[49]
Supra note 31.
[50]

Supra note 47.

Supra note 32
[52]
Supra note 47.
[53]
Rollo, p. 349.
[54]
For a small sampling, vide Primer sa Japan-Philippine Economic Partnership Agreement (JPEPA)
at www.bayan.ph/downloads/Primer%20on%20jpepa.pdf; A RESOLUTION EXPRESSING SUPPORT TO
THE CALLS FOR THE SENATE TO REJECT THE JAPAN-PHILIPPINES PARTNERSHIP AGREEMENT
(JPEPA) at www.nccphilippines.org/indexfiles/Page1562.htm; JPEPA Ratification: Threat Economics at
http://www.aer.ph/index.php?option/=com_content&task=view&id=632&Itemid=63 (all sites visited on
February 2, 2008).
[55]
Entitled A DECREE TO CONSOLIDATE AND CODIFY ALL THE TARIFF AND CUSTOMS LAWS OF THE
PHILIPPINES, promulgated June 11, 1978. In light of the arguments of petitioners, the most salient portion of
the provisions cited by them is Section 402(1) which states, in part: For the purpose of expanding foreign
markets x x x in establishing and maintaining better relations between the Philippines and other countries, the
President is authorized from time to time:
(1.1) To enter into trade agreements with foreign governments or instrumentalities thereof; x x x
[56]
396 Phil. 623, 663 (2000).
[57]
G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632-633.
[58]
Supra note 55.
[51]

[59]

G.R. No. 169777, April 20, 2006, 488 SCRA 1, 44.

Id. at 68.
[61]
According to the records of this Court, the judgment in Senate v. Ermita was entered on July 21,
2006. Respondents filed their Comment on May 15, 2006.
[62]
Revised Dissenting Opinion, p. 15 (Emphasis and underscoring supplied).
[63]
450 PHIL. 744 (2003), penned by then Associate Justice Puno.
[64]
Id., at 833 (Italics in the original, emphasis and underscoring supplied)
[65]
The Federalist, No. 75 (Italics in the original, emphasis and underscoring supplied).
[66]
Article II Section 2 of the U.S. Constitution states: He [the President] shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur x x x.
(Emphasis and underscoring supplied) On the other hand, Article VII Section 21 of the Philippine Constitution
states: No treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate.
[60]

[67]

[68]

Supra note 18.

162 U.S. App.D.C. 183, 189.

365 F.3d 1108, 361 U.S.App.D.C. 183 (2004).
[70]
Supra note 47.
[71]
345 U.S. 1, 73 S.Ct. 528 (1953)
[72]
Supra at note 63.
[73]
Supra at note 64.
[74]
Supra note 19.
[75]
Supra at note 18.
[76]
U.S. v. Nixon (418 U.S. 683) states: Nowhere in the Constitution x x x is there any explicit reference to a
privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a Presidents
powers, it is constitutionally based. (Emphasis, italics and underscoring supplied)
[77]
In re Sealed Case (121 F.3d 729) states thus: Nixon, GSA, Sirica, and the other Nixon cases all employed a
balancing methodology in analyzing whether, and in what circumstances, the presidential communications
privilege can be overcome.Under this methodology, these opinions balanced the public interests served by
protecting the Presidents confidentiality in a particular context with those furthered by requiring
disclosure. (Emphasis and underscoring supplied)
[78]
G.R. No. 139465, October 17, 2000, penned by then Associate Justice Reynato S. Puno.
In that case, respondent Mark Jimenez claimed under the due process clause the right to notice and
hearing in the extradition proceedings against him. Consider the following enlightening disquisition of the
Court:
In the case at bar, on one end of the balancing pole is the private respondents claim to due
process predicated on Section 1, Article III of the Constitution, which provides that No person
shall be deprived of life, liberty, or property without due process of law Without a bubble of a
doubt, procedural due process of law lies at the foundation of a civilized society which accords
paramount importance to justice and fairness. It has to be accorded the weight it deserves.
This brings us to the other end of the balancing pole. Petitioner avers that the Court should give
more weight to our national commitment under the RP-US Extradition Treaty to expedite the
extradition to the United States of persons charged with violation of some of its laws. Petitioner
also emphasizes the need to defer to the judgment of the Executive on matters relating to foreign
affairs in order not to weaken if not violate the principle of separation of powers.
Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the
nature of the right being claimed by the private respondent is nebulous and the degree of prejudice
he will allegedly suffer is weak, we accord greater weight to the interests espoused by the
government thru the petitioner Secretary of Justice. x x x (Emphasis, italics, and underscoring
supplied)
[79]
Constitution, Art. XIII, Sec. 16.
[80]
433 U.S. 425.
[81]
88 Stat. 1695.
[82]
G.R. No. 180643, March 25, 2008.
[83]
Emphasis supplied.
[69]

EN BANC

[G.R. Nos. 146710-15. March 2, 2001]

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity

as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST
CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES
FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA,
ROMEO
CAPULONG
and
ERNESTO
B.
FRANCISCO,
JR., respondent.

[G.R. No. 146738. March 2, 2001]

JOSEPH
E.
ESTRADA, petitioner,
ARROYO, respondent.

vs. GLORIA

MACAPAGAL-

DECISION
PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito
Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo
claims she is the President. The warring personalities are important enough but more
transcendental are the constitutional issues embedded on the parties dispute. While the
significant issues are many, the jugular issue involves the relationship between the ruler and the
ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some (10) million Filipinos
voted for the petitioner believing he would rescue them from lifes adversity. Both petitioner and
the respondent were to serve a six-year term commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a plethora of problems
that slowly but surely eroded his popularity. His sharp descent from power started on October 4,
2000. Ilocos Sur Governos, Luis Chavit Singson, a longtime friend of the petitioner, went on air
and accused the petitioner, his family and friends of receiving millions of pesos
from jueteng lords.[1]

The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator
Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and delivered a fiery
privilege speech entitled I Accuse. He accused the petitioner of receiving some P220 million
in jueteng money from Governor Singson from November 1998 to August 2000. He also charged
that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended
for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the
Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on
Justice (then headed by Senator Renato Cayetano) for joint investigation.[2]
The House of Representatives did no less. The House Committee on Public Order and
Security, then headed by Representative Roilo Golez, decided to investigate the expos of
Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and
Michael Defensor spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime
Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese
of Manila, asking petitioner to step down from the presidency as he had lost the moral authority
to govern.[3] Two days later or on October 13, the Catholic Bishops Conference of the Philippines
joined the cry for the resignation of the petitioner.[4] Four days later, or on October 17, former
President Corazon C. Aquino also demanded that the petitioner take the supreme self-sacrifice of
resignation.[5] Former President Fidel Ramos also joined the chorus. Early on, or on October 12,
respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services [6] and
later asked for petitioners resignation.[7]However, petitioner strenuously held on to his office and
refused to resign.
The heat was on. On November 1, four (4) senior economic advisers, members of the
Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala,
former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip. [8] On
November 2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry.
[9]
On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together
with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino.[10]
The month of November ended with a big bang. In a tumultuous session on November 13,
House Speaker Villar transmitted the Articles of Impeachment[11] signed by 115 representatives,
or more than 1/3 of all the members of the House of Representatives to the Senate. This caused
political convulsions in both houses of Congress. Senator Drilon was replaced by Senator
Pimentel as Senate President.Speaker Villar was unseated by Representative Fuentabella. [12] On
November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one
(21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr.,
presiding.[13]
The political temperature rose despite the cold December. On December 7, the impeachment
trial started.[14] the battle royale was fought by some of the marquee names in the legal
profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte
and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar
Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio
Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice
Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were
former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito

P. Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy Speaker of the House
Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial
was covered by live TV and during its course enjoyed the highest viewing rating.Its high and low
points were the constant conversational piece of the chattering classes. The dramatic point of the
December hearings was the testimony of Clarissa Ocampo, senior vice president of EquitablePCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the
signature Jose Velarde on documents involving a P500 million investment agreement with their
bank on February 4, 2000.[15]
After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of
Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the
prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioners Secretary of
Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources
Corporation with Mr. Dante Tan who was facing charges of insider trading. [16] Then came the
fateful day of January 16, when by a vote of 11-10[17] the senator-judges ruled against the opening
of the second envelop which allegedly contained evidence showing that petitioner held P3.3
billion in a secret bank account under the name Jose Velarde. The public and private prosecutors
walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.
[18]
The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets
of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full
of sulphur were delivered against the petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering
their collective resignation. They also filed their Manifestation of Withdrawal of Appearance
with the impeachment tribunal.[19] Senator Raul Roco quickly moved for the indefinite
postponement of the impeachment proceedings until the House of Representatives shall have
resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the
motion.[20]
January 18 saw the high velocity intensification of the call for petitioners resignation. A 10kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the peoples
solidarity in demanding petitioners resignation. Students and teachers walked out of their classes
in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA
Shrine, all masters of the physics of persuasion, attracted more and more people.[21]
On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of
Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the
holding of a snap election for President where he would not be a candidate. It did not diffuse the
growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General
Reyes, together with the chiefs of all the armed services went to the EDSA Shrine. [22] In the
presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that on behalf of your Armed Forces, the 130,000 strong
members of the Armed Forces, we wish to announce that we are withdrawing our support to this
government.[23] A little later, PNP Chief, Director General Panfilo Lacson and the major service
commanders gave a similar stunning announcement.[24] Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.

Rallies for the resignation of the petitioner exploded in various parts of the country. To stem
the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the
highly controversial second envelop.[26] There was no turning back the tide. The tide had become
a tsunami.
[25]

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations
for the peaceful and orderly transfer of power started at Malacaangs Mabini Hall, Office of the
Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel
Fernandez, head of the presidential Management Staff, negotiated for the petitioner. Respondent
Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance
Alberto Romulo and now Secretary of Justice Hernando Perez. [27] Outside the palace, there was a
brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stonethrowing and caused minor injuries. The negotiations consumed all morning until the news broke
out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the
EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as
President of the Philippines.[28] At 2:30 p.m., petitioner and his family hurriedly left Malacaang
Palace.[29] He issued the following press statement:[30]

20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath
as President of the Republic of the Philippines. While along with many other legal
minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will
prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to
me for service to our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive
national spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA

It also appears that on the same day, January 20, 2001, he signed the following letter:[31]

Sir:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice-President shall be the
Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on January 20.
[32]
Another copy was transmitted to Senate President Pimentel on the same day although it was
received only at 9:00 p.m.[33]
On January 22, the Monday after taking her oath, respondent Arroyo immediately
discharged the powers and duties of the Presidency. On the same day, this Court issued the
following Resolution in Administrative Matter No. 01-1-05-SC, to wit:

A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to

Take her Oath of Office as President of the Republic of the Philippines before the
Chief Justice Acting on the urgent request of Vice-President Gloria Macapagal-Arroyo
to be sworn in as President of the Republic of the Philippines, addressed to the Chief
Justice and confirmed by a letter to the Court, dated January 20, 2001, which request
was treated as an administrative matter, the court Resolved unanimously to confirm
the authority given by the twelve (12) members of the Court then present to the Chief
Justice on January 20, 2001 to administer the oath of office to Vice President Gloria
Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that
maybe filed by a proper party.
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.[34] Recognition of respondent Arroyos government by foreign governments swiftly
followed. On January 23, in a reception or vin d honneur at Malacaang, led by the Dean of the
Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats
recognized the government of respondent Arroyo.[35] US President George W. Bush gave the
respondent a telephone call from the White House conveying US recognition of her government.
[36]

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.[37] The House then passed Resolution No. 175 expressing the full support of the
House of Representatives to the administration of Her Excellency Gloria Macapagal-Arroyo,

President of the Philippines.[38] It also approved Resolution No. 176 expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria MacapagalArroyo as President of the Republic of the Philippines, extending its congratulations and
expressing its support for her administration as a partner in the attainment of the nations goals
under the Constitution.[39]
On January 26, the respondent signed into law the Solid Waste Management Act. [40] A few
days later, she also signed into law the Political Advertising Ban and Fair Election Practices Act.
[41]

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.[42] the next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.[43] Senators Miriam Defensor-Santiago, Juan Ponce Enrile,
and John Osmea voted yes with reservations, citing as reason therefore the pending challenge on
the legitimacy of respondent Arroyos presidency before the Supreme Court. Senators Teresa
Aquino-Oreta and Robert Barbers were absent.[44] The House of Representatives also approved
Senator Guingonas nomination in Resolution No. 178.[45] Senator Guingona took his oath as Vice
President two (2) days later.[46]
On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.[47] Senator Miriam Defensor-Santiago stated for the
record that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.[48]
Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public acceptance rating
jacked up from 16% on January 20, 2001 to 38% on January 26, 2001. [49] In another survey
conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey
also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the
balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to
52%. Her presidency is accepted by majorities in all social classes:

58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54%
among the Es or very poor class.[50]
After his fall from the pedestal of power, the petitioners legal problems appeared in
clusters. Several cases previously filed against him in the Office of the Ombudsman were set in
motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23,
2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers
Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for
government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines
Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on
November 28, 2000 for malversation of public funds, illegal use of public funds and property,
plunder, etc., (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28,
2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080;

and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for
plunder, graft and corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman to
investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the
panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his
witnesses as well as other supporting documents in answer to the aforementioned complaints
against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court
GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from conducting any further proceedings in Case
Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that
may be filed in his office, until after the term of petitioner as President is over and only if legally
warranted. Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo
Warranto. He prayed for judgment confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to discharge the duties of his
office, and declaring respondent to have taken her oath as and to be holding the Office of the
President, only in an acting capacity pursuant to the provisions of the Constitution. Acting on GR
Nos. 146710-15, the Court, on the same day, February 6, required the respondents to comment
thereon within a non-extendible period expiring on 12 February 2001. On February 13, the Court
ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the
respondents comments on or before 8:00 a.m. of February 15.
On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.,[51] and Associate Justice Artemio Panganiban[52] recused
themselves on motion of petitioners counsel, former Senator Rene A. Saguisag. They debunked
the charge of counsel Saguisag that they have compromised themselves by indicating that they
have thrown their weight on one side but nonetheless inhibited themselves. Thereafter, the
parties were given the short period of five (5) days to file their memoranda and two (2) days to
submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution and
press statement for Gag Order on respondent Ombudsman filed by counsel for petitioner in G.R.
No. 146738, the Court resolved:

(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue
a press statement justifying the alleged resolution;
(2) to order the parties and especially their counsel who are officers of the Court under
pain of being cited for contempt to refrain from making any comment or discussing in
public the merits of the cases at bar while they are still pending decision by the Court,
and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in
his office against petitioner Joseph E. Estrada and subject of the cases at bar, it
appearing from news reports that the respondent Ombudsman may immediately
resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing
held on February 15, 2001, which action will make the cases at bar moot and
academic.[53]
The parties filed their replies on February 24. On this date, the cases at bar were deemed
submitted for decision.
The bedrock issues for resolution of this Court are:
I

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner

Estrada is a President on leave while respondent Arroyo is an Acting President.
III

Whether conviction in the impeachment proceedings is a condition precedent for the

criminal prosecution of petitioner Estrada. In the negative and on the assumption that
petitioner is still President, whether he is immune from criminal prosecution.
IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of

prejudicial publicity.
We shall discuss the issues in seriatim.
I

Whether or not the cases at bar involve a political question

Private respondents[54] raise the threshold issue that the cases at bar pose a political question,
and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the legitimacy of the Arroyo administration. They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency

and that she has been recognized by foreign governments. They submit that these realities on
ground constitute the political thicket which the Court cannot enter.
We reject private respondents submission. To be sure, courts here and abroad, have tried to
lift the shroud on political question but its exact latitude still splits the best of legal
minds. Developed by the courts in the 20 century, the political question doctrine which rests on
the principle of separation of powers and on prudential considerations, continue to be refined in
the mills constitutional law.[55] In the United States, the most authoritative guidelines to determine
whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case of Baker
v. Carr,[56] viz:
th

x x x Prominent on the surface on any case held to involve a political question is

found a textually demonstrable constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy determination of
a kind clearly for nonjudicial discretions; or the impossibility of a courts undertaking
independent resolution without expressing lack of the respect due coordinate branches
of government; or an unusual need for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements
by various departments on question. Unless one of these formulations is inextricable
from the case at bar, there should be no dismissal for non justiciability on the ground
of a political questions presence. The doctrine of which we treat is one of political
questions, not of political cases.
In the Philippine setting, this Court has been continuously confronted with cases calling for
a firmer delineation of the inner and outer perimeters of a political question. [57] Our leading case
is Tanada v. Cuenco,[58] where this Court, through former Chief Justice Roberto Concepcion,
held that political questions refer to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, notlegality of a particular measure. To a
great degree, the 1987 Constitution has narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this court not only to settle actual
controversies involving rights which are legally demandable and enforceable but also to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of government. [59] Heretofore,
the judiciary has focused on the thou shalt nots of the Constitution directed against the exercise
of its jurisdiction.[60]With the new provision, however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing nothing. In sync and symmetry with
this intent are other provisions of the 1987 Constitution trimming the so called political
thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in
limpid language to x x x review, in an appropriate proceeding filed by any citizen, the sufficiency

of the factual basis of the proclamation of martial law or the suspension of the privilege of the
writ (of habeas corpus) or the extension thereof x x x.
Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver
A. Lozano v. President Corazon C. Aquino, et al.[61] and related cases[62] to support their thesis
that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo,
they present a political question. A more cerebral reading of the cited cases will show that they
are inapplicable. In the cited cases, we held that the government of former President Aquino was
the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution[63] declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people in defiance of the provisions of the 1973
Constitution, as amended. It is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government
automatically orbits out of the constitutional loop. In checkered contrast, the government of
respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA
Shrine is the oath under the 1987 Constitution. [64] In her oath, she categorically swore to
preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the
powers of the presidency under the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I and EDSA People Power II is
clear. EDSA I involves the exercise of the people power of revolution which overthrew the
whole government. EDSA II is an exercise of people power of freedom of speech and
freedom of assembly to petition the government for redress of grievances which only
affected the office of the President. EDSA I is extra constitutional and the legitimacy of the
new government that resulted from it cannot be the subject of judicial review, but EDSA II is
intra constitutional and the resignation of the sitting President that it caused and the succession
of the Vice President as President are subject to judicial review. EDSA I presented political
question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the
freedom of assembly to petition the government for redress of grievance which are the cutting
edge of EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these
rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P.
Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and
included it as among the reforms sine quibus non.[65] The Malolos Constitution, which is the
work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not
be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through
the use of the press or other similar means; (2) of the right of association for purposes of human
life and which are not contrary to public means; and (3) of the right to send petitions to the
authorities, individually or collectively. These fundamental rights were preserved when the
United States acquired jurisdiction over the Philippines. In the instruction to the Second
Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided
that no law shall be passed abridging the freedom of speech or of the press or of the rights of the
people to peaceably assemble and petition the Government for redress of grievances. The
guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the
Jones Law, the Act of Congress of August 29, 1966.[66]

Thence

on,

the guaranty was set in stone in our 1935 Constitution,[67] and

the 1973[68] Constitution. These rights are now safely ensconced in section 4, Article III of the 1987
Constitution, viz:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of

the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.
The indispensability of the peoples freedom of speech and of assembly to democracy is now
self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a
means of assuring individual fulfillment; second, it is an essential process for advancing
knowledge and discovering truth; third, it is essential to provide for participation in decisionmaking by all members of society; and fourth, it is a method of achieving a more adaptable and
hence, a more stable community of maintaining the precarious balance between healthy cleavage
and necessary consensus.[69] In this sense, freedom of speech and of assembly provides a framework in
which the conflict necessary to the progress of a society can take place without destroying the society.
[70]
In Hague v. Committee for Industrial Organization,[71] this function of free speech and assembly was

echoed in the amicus curiae brief filed by the Bill of Rights Committee of the American Bar
Association which emphasized that the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all.[72] In the relatively recent case of Subayco v. Sandiganbayan,[73] this Court similarly stressed
that "... it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers.
Needless to state, the cases at bar pose legal and not political questions. The principal issues
for resolution require the proper interpretation of certain provisions in the 1987 Constitution,
notably section 1 of Article II,[74] and section 8[75]of Article VII, and the allocation of
governmental powers under section 11[76] of Article VII. The issues likewise call for a ruling on
the scope of presidential immunity from suit. They also involve the correct calibration of the
right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v.
Madison,[77] the doctrine has been laid down that it is emphatically the province and duty of
the judicial department to say what the law is . . . Thus, respondents invocation of the doctrine
of political is but a foray in the dark.
II

Whether or not the petitioner resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a
political question. Indeed, it involves a legal question whose factual ingredient is determinable
from the records of the case and by resort to judicial notice. Petitioner denies he resigned as
President or that he suffers from a permanent disability. Hence, he submits that the office of the
President was not vacant when respondent Arroyo took her oath as president.

The issue brings under the microscope of the meaning of section 8, Article VII of the
Constitution which provides:

Sec. 8. In case of death, permanent disability, removal from office or resignation of

the President, the Vice President shall become the President to serve the unexpired
term. In case of death, permanent disability, removal from office, or resignation of
both the President and Vice President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then acts as President
until President or Vice President shall have been elected and qualified.
x x x.
The issue then is whether the petitioner resigned as President or should be considered
resigned as of January 20, 2001 when respondent took her oath as the 14 President of the
Republic. Resignation is not a high level legal abstraction. It is a factual question and
its elements are beyond quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment.[78] The validity of a resignation is not governed by any
formal requirement as to form. It can be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be given legal effect.
th

In the cases at bar, the facts shows that petitioner did not write any formal letter of
resignation before he evacuated Malacaang Palace in the Afternoon of January 20, 2001 after the
oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be
determined from his acts and omissions before, during and after January 20, 2001 or by
the totality of prior, contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the petitioner, it is important
to follow the succession of events after the expos of Governor Singson. The Senate Blue Ribbon
Committee investigated. The more detailed revelations of petitioners alleged misgovernance in
the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in
the House of Representatives which initially was given a near cipher chance of succeeding
snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of
the House of Representatives.Soon, petitioners powerful political allies began deserting
him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and Former
Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic
advisers resigned together with his Secretary of Trade and Industry.
As the political isolation of the petitioner worsened, the peoples call for his resignation
intensified. The call reached a new crescendo when the eleven (11) members of the impeachment
tribunal refused to open the second envelope. It sent the people to paroxysms of outrage. Before
the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress
of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread to
the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of
mind of the petitioner. The window is provided in the Final Days of Joseph Ejercito Estrada, the
diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.[79] The Angara
Diary reveals that in morning of January 19, petitioners loyal advisers were worried about the
swelling of the crowd at EDSA, hence, they decided to crate an ad hoc committee to handle
it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small
office at the presidential residence and exclaimed: Ed, seryoso na ito. Kumalas na si Angelo
(Reyes) (Ed, this is serious. Angelo has defected.)[80] An hour later or at 2:30, p.m., the petitioner
decided to call for a snap presidential election and stressed he would not be a candidate. The
proposal for a snap election for president in May where he would not be a candidate is an
indicium that petitioner had intended to give up the presidency even at that time.At 3:00
p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the
petitioner and dramatically announced the AFPs withdrawal of support from the petitioner and
their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as
a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to
consider the option ofdignified exit or resignation.[81] Petitioner did nor disagree but listened
intently.[82] The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to
the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a
sweetener by saying that petitioner would allowed to go abroad with enough funds to support
him and his family.[83] Significantly, the petitioner expressed no objection to the suggestion
for a graceful and dignified exit but said he would never leave the country.[84] At 10:00 p.m.,
petitioner revealed to Secretary Angara, Ed, Angie (Reyes) guaranteed that I would have five
days to a week in the palace. [85] This is proof that petitioner had reconciled himself to the
reality that he had to resign. His mind was already concerned with the five-day grace
period he could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former President Ramos called up
Secretary Angara and requested, Ed, magtulungan tayo para magkaroon tayo ng (lets cooperate
to ensure a) peaceful and orderly transfer of power.[86] There was no defiance to the
request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was
already about a peaceful and orderly transfer of power. The resignation of the petitioner
was implied.
The first negotiation for a peaceful and orderly transfer of power immediately started at
12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3)
points: (1) the transition period of five days after the petitioners resignation; (2) the guarantee of
the safety of the petitioner and his family, and (3) the agreement to open the second envelope to
vindicate the name of the petitioner.[87]Again, we note that the resignation of petitioner was
not a disputed point. The petitioner cannot feign ignorance of this fact. According to
Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following
entry in the Angara Diary shows the reaction of the petitioner, viz:

xxx
I explain what happened during the first round of
negotiations. The President immediately stresses that he just wants the five-day
period promised by Reyes, as well as to open the second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. Pagod na pagod na ako. Ayoko na masyado nang
masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I dont
want any more of this its too painful. Im tired of the red tape, the bureaucracy,
the intrigue.)
I just want to clear my name, then I will go.[88]
Again, this is high grade evidence that the petitioner has resigned. The intent to resign is
clear when he said x x x Ayoko na masyado nang masakit. Ayoko na are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

Oppositions deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagals spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled Negotiating Points. It reads:
1. The President shall sign a resignation document within the day, 20 January 2001,
that will be effective on Wednesday, 24 January 2001, on which day the Vice
President will assume the Presidency of the Republic of the Philippines.
2. Beginning today, 20 January 2001, the transition process for the assumption of the
new administration shall commence, and persons designated by the Vice president to
various positions and offices of the government shall start their orientation activities
in coordination with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall
function under the Vice President as national military and police effective
immediately.
4. The Armed Forces of the Philippines, through its Chief of Staff, shall guarantee the
security of the president and his family as approved by the national military and police
authority (Vice President).
5. It is to be noted that the Senate will open the second envelope in connection with
the alleged savings account of the President in the Equitable PCI Bank in accordance
with the rules of the Senate, pursuant to the request to the Senate President.

Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective principals, agree and
undertake as follows:
1. A transition will occur and take place on Wednesday, 24 January 2001, at which
time President Joseph Ejercito Estrada will turn over the presidency to Vice President
Gloria Macapagal-Arroyo.
2. In return, President Estrada and his families are guaranteed security and safety of
their person and property throughout their natural lifetimes. Likewise, President
Estrada and his families are guaranteed freedom from persecution or retaliation from
government and the private sector throughout their natural lifetimes.
This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP)
through the Chief of Staff, as approved by the national military and police authorities
Vice President (Macapagal).
3. Both parties shall endeavor to ensure that the Senate siting as an impeachment court
will authorize the opening of the second envelope in the impeachment trial as proof
that the subject savings account does not belong to President Estrada.
4. During the five-day transition period between 20 January 2001 and 24 January
2001 (the Transition Period), the incoming Cabinet members shall receive an
appropriate briefing from the outgoing Cabinet officials as part of the orientation
program.
During the Transition Period, the AFP and the Philippine National Police (PNP) shall
function under Vice President (Macapagal) as national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP director general shall
obtain all the necessary signatures as affixed to this agreement and insure faithful
implementation and observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in Annex A heretofore attached to this agreement.[89]
The second round of negotiation cements the reading that the petitioner has
resigned. It will be noted that during this second round of negotiation, the resignation of
the petitioner was again treated as a given fact. The only unsettled points at that time were
the measures to be undertaken by the parties during and after the transition period.

According to Secretary Angara, the draft agreement which was premised on the resignation
of the petitioner was further refined. It was then signed by their side and he was ready to fax it
to General Reyes and Senator Pimentel to await the signature of the United
Opposition. However, the signing by the party of the respondent Arroyo was aborted by her
oath-taking. The Angara Diary narrates the fateful events, viz:[90]

xxx
11:00 a.m. Between General Reyes and myself, there is a firm agreement on the
five points to effect a peaceful transition. I can hear the general clearing all these
points with a group he is with. I hear voices in the background.
Agreement
The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President
will assume the presidency of the Republic of the Philippines.
xxx
The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall
commence on 20 January 2001, wherein persons designated by the Vice President to
various government positions shall start orientation activities with incumbent officials.
3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the
safety and security of the President and his families throughout their natural lifetimes
as approved by the national military and police authority Vice President.
4. The AFP and the Philippine National Police (PNP) shall function under the Vice
President as national military and police authorities.
5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject
savings account does not belong to the President.
The Vice President shall issue a public statement in the form and tenor provided for in
Annex B heretofore attached to this agreement.
xxx

11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed
by our side and awaiting the signature of the United Opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has
decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.
Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldnt you
wait? What about the agreement)? I asked.
Reyes answered: Wala na, sir (Its over, sir).
I asked him: Di yung transition period, moot and academic na?
And General Reyes answer: Oo nga, i-delete na natin, sir (Yes, were deleting that
part).
Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since
this matter is already moot and academic. Within moments, Macel erases the first
provision and faxes the documents, which have been signed by myself, Dondon and
Macel to Nene Pimentel and General Reyes.
I direct Demaree Ravel to rush the original document to General Reyes for the
signatures of the other side, as it is important that the provision on security, at
least, should be respected.
I then advise the President that the Supreme Court has ruled that Chief Justice Davide
will administer the oath to Gloria at 12 noon.
The president is too stunned for words.
Final meal
12 noon Gloria takes her oath as President of the Republic of the Philippines.
12:20 p.m. The PSG distributes firearms to some people inside the compound.
The President is having his final meal at the Presidential Residence with the few
friends and Cabinet members who have gathered.
By this time, demonstrators have already broken down the first line of defense at
Mendiola. Only the PSG is there to protect the Palace, since the police and military
have already withdrawn their support for the President.

1 p.m. The Presidents personal staff is rushing to pack as many of the Estrada familys
personal possessions as they can.
During lunch, Ronie Puno mentions that the President needs to release a final
statement before leaving Malacaang.
The statement reads: At twelve oclock noon today, Vice President Gloria MacapagalArroyo took her oath as President of the Republic of the Philippines. While along with
many other legal minds of our country, I have strong and serious doubts about the
legality and constitutionality of her proclamation as president, I do not wish to be a
factor that will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to
me for service to our people. I will not shrik from any future challenges that may
come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive
national spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by
his leaving Malacaang. In the press release containing his final statement, (1) he acknowledged
the oath-taking of the respondent as President of the Republic albeit with the reservation
about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the
sake of peace and in order to begin the healing process of our nation. He did not say he was
leaving the Palace due to any kind of inability and that he was going to re-assume the
presidency as soon as the disability disappears;(3) he expressed his gratitude to the people for
the opportunity to serve them. Without doubt, he was referring to the past opportunity given
him to serve the people as President; (4) he assured that he will not shirk from any future
challenge that may come ahead in the same service of our country. Petitioners reference is to
a future challenge after occupying the office of the president which he has given up; and (5)
he called on his supporters to join him in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity
could not be attained if he did not give up the presidency. The press release was petitioners
valedictory, his final act of farewell. His presidency is now in the past tense.
It is, however, urged that the petitioner did not resign but only took a temporary leave
of absence due to his inability to govern. In support of this thesis, the letter dated January 20,

2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again,
we refer to the said letter, viz:

Sir
By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice President shall be the Acting
President.
(Sgd.) Joseph Ejercito Estrada
To say the least, the above letter is wrapped in mystery.[91] The pleadings filed by the
petitioner in the cases at bar did not discuss, nay even intimate, the circumstances that led to its
preparation.Neither did the counsel of the petitioner reveal to the Court these circumstances
during the oral argument. It strikes the Court as strange that the letter, despite its legal value,
was never referred to by the petitioner during the week-long crisis. To be sure, there was not
the slightest hint of its existence when he issued his final press release. It was all too easy for him
to tell the Filipino people in his press release that he was temporarily unable to govern and that
he was leaving the reins of government to respondent Arroyo for the time being. Under any
circumstance, however, the mysterious letter cannot negate the resignation of the
petitioner. If it was prepared before the press release of the petitioner clearly showing his
resignation from the presidency, then the resignation must prevail as a later act. If, however, it
was prepared after the press release, still, it commands scant legal significance. Petitioners
resignation from the presidency cannot be the subject of a changing caprice nor of a
whimsical will especially if the resignation is the result of his repudiation by the
people. There is another reason why this Court cannot give any legal significance to petitioners
letter and this shall be discussed in issue number III of this Decision.
After petitioner contended that as a matter of fact he did not resign, he also argues that
he could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, which allegedly prohibits his
resignation, viz:

Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminal or administrative, or pending a prosecution against him, for any offense
under this Act or under the provisions of the Revised Penal Code on bribery.
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the
petitioner. RA No. 3019 originated from Senate Bill No. 293. The original draft of the bill, when
it was submitted to the Senate, did not contain a provision similar to section 12 of the law as it
now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill,
reserved to propose during the period of amendments the inclusion of a provision to the effect
that no public official who is under prosecution for any act of graft or corruption, or is under
administrative investigation, shall be allowed to voluntarily resign or retire. [92] During the period
of amendments, the following provision was inserted as section 15:

Sec. 15. Termination of office No public official shall be allowed to resign or retire
pending an investigation, criminal or administrative, or pending a prosecution against
him, for any offense under the Act or under the provisions of the Revised Penal Code
on bribery.
The separation or cessation of a public official from office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency.[93]
The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the
second paragraph of the provision and insisted that the Presidents immunity should extend even
after his tenure.
Senate Bill No. 571, which was substantially similar to Senate Bill No. 293, was thereafter
passed. Section 15 above became section 13 under the new bill, but the deliberations on this
particular provision mainly focused on the immunity of the President which was one of the
reasons for the veto of the original bill. There was hardly any debate on the prohibition against
the resignation or retirement of a public official with pending criminal and administrative cases
against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the
act of resignation or retirement from being used by a public official as a protective shield to
stop the investigation of a pending criminal or administrative case against him and to
prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the
Revised Penal Code. To be sure, no person can be compelled to render service for that would be
a violation of his constitutional right.[94] A public official has the right not to serve if he really
wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is
facing administrative or criminal investigation or prosecution, such resignation or retirement will
not cause the dismissal of the criminal or administrative proceedings against him. He cannot use
his resignation or retirement to avoid prosecution.
There is another reason why petitioners contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him
before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and
0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from
conducting the preliminary investigation of the petitioner for the reason that as the sitting
President then, petitioner was immune from suit. Technically, the said cases cannot be considered
as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019
cannot therefore be invoked by the petitioner for it contemplates of cases whose investigation or
prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a
sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation that,
under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of
an impeachment proceeding is debatable. But even assuming arguendo that it is an
administrative proceeding, it can not be considered pending at the time petitioner resigned
because the process already broke down when a majority of the senator-judges voted against the
opening of the second envelope, the public and private prosecutors walked out, the public
prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were

postponed indefinitely. There was, in effect, no impeachment case pending against petitioner
when he resigned.
III

Whether or not the petitioner is only temporarily unable to act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to
perform the powers and duties of the presidency, and hence is a President on leave. As
aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the
same day to Senate President Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the
inability of the petitioner to discharge the powers and duties of the presidency. His significant
submittal is thatCongress has the ultimate authority under the Constitution to determine whether
the President is incapable of performing his functions in the manner provided for in section 11 of
Article VII.[95] This contention is the centerpiece of petitioners stance that he is a President on
leave and respondent Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:

SEC. 11. Whenever the President transmit to the President of the Senate and the
Speaker of the House of Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he transmits to them a written
declaration to the contrary, such powers and duties shall be discharged by the VicePresident as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the President of
the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his
office, the Vice-President shall immediately assume the powers and duties of the
office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the
Speaker of the House of Representatives his written declaration that no inability
exists, he shall reassume the powers and duties of his office. Meanwhile, should a
majority of all the Members of the Cabinet transmit within five days to the President
of the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his
office, the Congress shall decide the issue. For that purpose, the Congress shall
convene, if it is not in session, within forty-eight hours, in accordance with its rules
and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not
in session within twelve days after it is required to assemble, determines by a twothirds vote of both Houses, voting separately, that the President is unable to discharge
the powers and duties of his office, the Vice-President shall act as President;
otherwise, the President shall continue exercising the powers and duties of his office."
That is the law. Now the operative facts:
(1) Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
(2) Unaware of the letter, respondent Arroyo took her oath of office as President on January
20, 2001 at about 12:30 p.m.;
(3) Despite receipt of the letter, the House of Representative passed on January 24,
2001 House Resolution No. 175;[96]
On the same date, the House of the Representatives passed House Resolution No.
176[97]which states:

RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE
NATIONS GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the peoples loss of confidence on the ability of
former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of
the Philippines, the Philippine National Police and majority of his cabinet had
withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice
President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on
20 January 2001 before Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international community had
extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President
of the Republic of the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a
policy of national healing and reconciliation with justice for the purpose of national
unity and development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved

if it is divided, thus by reason of the constitutional duty of the House of
Representatives as an institution and that of the individual members thereof of fealty
to the supreme will of the people, the House of Representatives must ensure to the
people a stable, continuing government and therefore must remove all obstacles to the
attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert all
efforts to unify the nation, to eliminate fractious tension, to heal social and political
wounds, and to be an instrument of national reconciliation and solidarity as it is a
direct representative of the various segments of the whole nation;
WHEREAS, without surrendering its independence, it is vital for the attainment of all
the foregoing, for the House of Representatives to extend its support and collaboration
to the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to
be a constructive partner in nation-building, the national interest demanding no
less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to the assumption
into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of
the Philippines, to extend its congratulations and to express its support for her
administration as a partner in the attainment of the Nations goals under the
Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General
On February 7, 2001, the House of the Representatives passed House Resolution No.
178[98] which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS
NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the
event of such vacancy shall nominate a Vice President from among the members of
the Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated
Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of
the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with
integrity, competence and courage; who has served the Filipino people with dedicated
responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true
statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice, Senator of the Philippines - qualities which
merit his nomination to the position of Vice President of the Republic: Now, therefore,
be it
Resolved as it is hereby resolved by the House of Representatives, That the House of
Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the
Vice President of the Republic of the Philippines.
Adopted,
(Sgd) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General
(4) Also, despite receipt of petitioners letter claiming inability, some twelve (12)
members of the Senate signed the following:

RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the nation
needs unity of purpose and resolute cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital legislative
measures in unity despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of President
Gloria Macapagal-Arroyo and resolve to discharge our duties to attain desired changes
and overcome the nations challenges.[99]
On February 7, the Senate also passed Senate Resolution No. 82[100] which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS
NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is it vacancy in the Office of the Vice-President due to the

assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the
event of such vacancy shall nominate a Vice President from among the members of
the Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated
Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of
the Republic of the Phillippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence, and courage; who has served the Filipino people with dedicated
responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true
statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice. Senator of the land - which qualities merit
his nomination to the position of Vice President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen.
Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate
On the same date, February 7, the Senate likewise passed Senate Resolution No. 83[101] which
states:

RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT

IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment
Court is functus officio and has been terminated.
Resolved, further, That the Journals of the Impeachment Court of Monday, January
15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court including the second
envelope be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval
thereof shall be made only upon written approval of the Senate President.
Resolved, finally. That all parties concerned be furnished copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate

(5) On February 8, the Senate also passed Resolution No. 84 certifying to the existence of a
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to
be held simultaneously with the regular election on May 14, 2001 and the senatorial candidate
garnering the thirteenth (13 ) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.
th

(6) Both houses of Congress started

respondent Arroyo as President.

sending bills

to

be

signed

into

law by

(7) Despite the lapse of time and still without any functioning Cabinet, without any
recognition from any sector of government, and without any support from the Armed Forces of
the Philippines and the Philippine National Police, the petitioner continues to claim that his
inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada is no longer temporary. Congress has
clearly rejected petitioners claim of inability.
The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses
of Congress recognizing respondent Arroyo as President of the Philippines. Following Taada v.
Cuenco,[102] we hold that this Court cannot exercise its judicial power for this is an issue in regard
to which full discretionary authorityhas been delegated to the Legislative x x x branch of the
government. Or to use the language in Baker vs. Carr,[103] there is a textually demonstrable
constitutional commitment of the issue to a coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it. Clearly, the Court cannot pass upon
petitioners claim of inability to discharge the powers and duties of the presidency. The question
is political in nature and addressed solely to Congress by constitutional fiat. It is a
political issue which cannot be decided by this Court without transgressing the principle of
separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed by
this Court.
IV

Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the
respondent Ombudsman should be prohibited because he has not been convicted in the
impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit,
whether criminal or civil.

Before resolving petitioners contentions, a revisit of our legal history on executive immunity
will be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a
case law. In the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield,[104] the respondent
Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine
Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the
City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In
granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

The principle of nonliability, as herein enunciated, does not mean that the judiciary
has no authority to touch the acts of the Governor-General; that he may, under cover
of his office, do what he will, unimpeded and unrestrained. Such a construction would
mean that tyranny, under the guise of the execution of the law, could walk defiantly
abroad, destroying rights of person and of property, wholly free from interference of
courts or legislatures. This does not mean, either, that a person injured by the
executive authority by an act unjustifiable under the law has no remedy, but must
submit in silence. On the contrary, it means, simply, that the Governor-General, like
the judges of the courts and the members of the Legislature, may not be personally
mulcted in civil damages for the consequences of an act executed in the performance
of his official duties. The judiciary has full power to, and will, when the matter is
properly presented to it and the occasion justly warrants it, declare an act of the
Governor-General illegal and void and place as nearly as possible in status quo any
person who has been deprived his liberty or his property by such act. This remedy is
assured to every person, however humble or of whatever country, when his personal
or property rights have been invaded, even by the highest authority of the state. The
thing which the judiciary can not do is mulct the Governor-General personally in
damages which result from the performance of his official duty, any more that it can a
member of the Philippine Commission or the Philippine Assembly. Public policy
forbids it.
Neither does this principle of nonliability mean that the chief executive may not be
personally sued at all in relation to acts which he claims to perform as such
official. On the contrary, it clearly appears from the discussion heretofore had,
particularly that portion which touched the liability of judges and drew an analogy
between such liability and that of the Governor-General, that the latter is liable when
he acts in a case so plainly outside of his power and authority that he can not be said
to have exercise discretion in determining whether or not he had the right to act. What
is held here is that he will be protected from personal liability for damages not only
when he acts within his authority, but also when he is without authority, provided he
actually used discretion and judgment, that is, the judicial faculty, in determining
whether he had authority to act or not. In other words, he is entitled to protection in
determining the question of his authority. If he decide wrongly, he is still protected
provided the question of his authority was one over which two men, reasonably

qualified for that position, might honestly differ; but he is not protected if the lack of
authority to act is so plain that two such men could not honestly differ over its
determination. In such case, he acts, not as Governor-General but as a private
individual, and, as such, must answer for the consequences of his act.
Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted
immunity from suit, viz: x x x. Action upon important matters of state delayed; the time and
substance of the chief executive spent in wrangling litigation; disrespect engendered for the
person of one of the highest officials of the State and for the office he occupies; a tendency to
unrest and disorder; resulting in a way, in a distrust as to the integrity of government itself.[105]
Our 1935 Constitution took effect but it did not contain any specific provision on
executive immunity. Then came the tumult of the martial law years under the late President
Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of
the amendments involved executive immunity. Section 17, Article VII stated:

The President shall be immune from suit during his tenure. Thereafter, no suit
whatsoever shall lie for official acts done by him or by others pursuant to his specific
orders during his tenure.
The immunities herein provided shall apply to the incumbent President referred to in
Article XVII of this Constitution.
In his second Vicente G. Sinco Professional Chair Lecture entitled, Presidential Immunity And
All The Kings Men: The Law Of Privilege As A Defense To Actions For Damages, [106] petitioners
learned counsel, former Dean of the UP college of Law, Atty. Pacifico Agabin, brightlined the
modifications effected by this constitutional amendment on the existing law on executive
privilege. To quote his disquisition:

In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President
not only from civil claims but also from criminal cases and other claims. Second, we
enlarged its scope so that it would cover even acts of the President outside the scope
of official duties. And third, we broadened its coverage so as to include not only the
President but also other persons, be they government officials or private individuals,
who acted upon orders of the President. It can be said that at that point most of us
were suffering from AIDS (or absolute immunity defense syndrome).
The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept
of executive immunity in the 1973 Constitution. The move was led by then Member of
Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency
immunity granted to President Marcos violated the principle that a public office is a public
trust. He denounced the immunity as a return to the anachronism the king can do no wrong.
[107]
The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the
People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not
reenact the
executive
immunity
provision
of
the
1973
Constitution. The
[108]
following explanation was given by delegate J. Bernas, viz:

Mr. Suarez. Thank you.

The last question is with reference to the committees omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the
Committee did very well in striking out this second sentence, at the very least, of the
original provision on immunity from suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of at least the first sentence that the
President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing
litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?
Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only innovation made by the
1973 Constitution was to make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam
President.
I thank the Commissioner for the clarification.
We shall now rule on the contentions of petitioner in the light of this history. We reject his
argument that he cannot be prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the
walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate Resolution No. 83 Recognizing that the
Impeachment Court is Functus Officio.[109] Since the Impeachment Court is now functus officio, it
is untenable for petitioner to demand that he should first be impeached and then convicted before
he can be prosecuted. The plea if granted, would put a perpetual bar against his
prosecution. Such a submission has nothing to commend itself for it will place him in a better
situation than a non-sitting President who has not been subjected to impeachment proceedings
and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings have become moot due to the
resignation of the President, the proper criminal and civil cases may already be filed against
him, viz:[110]

xxx
Mr. Aquino. On another point, if an impeachment proceeding has been filed
against the President, for example, and the President resigns before judgment of
conviction has been rendered by the impeachment court or by the body, how does
it affect the impeachment proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove one from office,
then his resignation would render the case moot and academic. However, as the
provision says, the criminal and civil aspects of it may continue in the ordinary
courts.
This is in accord with our ruling in In re: Saturnino Bermudez[111]that incumbent Presidents
are immune from suit or from being brought to court during the period of their incumbency and
tenure but not beyond. Considering the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada
cannot demand as a conditionsine qua non to his criminal prosecution before the Ombudsman
that he be convicted in the impeachment proceedings. His reliance in the case of Lecaroz vs.
Sandiganbayan[112] and related cases[113]are inapropos for they have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-sitting
President. The cases filed against petitioner Estrada are criminal in character. They involve
plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes,
especially plunder which carries the death penalty, be covered by the allege mantle of immunity
of a non-sitting president.Petitioner cannot cite any decision of this Court licensing the President
to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be
anomalous to hold that immunity is an inoculation from liability for unlawful acts and
omissions. The rule is that unlawful acts of public officials are not acts of the State and the
officer who acts illegally is not acting as such but stands in the same footing as any other
trespasser.[114] Indeed, a critical reading of current literature on executive immunity will reveal
a judicial disinclination to expand the privilege especially when it impedes the search for
truth or impairs the vindication of a right. In the 1974 case of US v. Nixon,[115] US President
Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and
documents relating to his conversations with aids and advisers. Seven advisers of President
Nixons associates were facing charges of conspiracy to obstruct justice and other offenses which
were committed in a burglary of the Democratic National Headquarters in Washingtons
Watergate Hotel during the 1972 presidential campaign. President Nixon himself was named an
unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among
others, that the President was not subject to judicial process and that he should first be
impeached and removed from office before he could be made amenable to judicial
proceedings. The claim was rejected by the US Supreme Court. It concluded that when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is
based only on the generalized interest in confidentiality, it cannot prevail over the fundamental
demands of due process of law in the fair administration of criminal justice. In the 1982 case of
Nixon v. Fitzgerald,[116] the US Supreme Court further held that the immunity of the President
from civil damages covers only official acts. Recently, the US Supreme Court had the occasion

to reiterate this doctrine in the case ofClinton v. Jones[117] where it held that the US Presidents
immunity from suits for money damages arising out of their official acts is inapplicable to
unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of
executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is
that a public office is a public trust.[118] It declared as a state policy that (t)he State shall
maintain honesty and integrity in the public service and take positive and effective measures
against graft and corruption."[119] It ordained that (p)ublic officers and employees must at all times
be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.[120] It set the rule that (t)he right
of the State to recover properties unlawfully acquired by public officials or employees, from
them or from their nominees or transferees, shall not be barred by prescription, laches or
estoppel.[121] It maintained the Sandiganbayan as an anti-graft court. [122] It created the office of the
Ombudsman and endowed it with enormous powers, among which is to "(i)nvestigate on its
own, or on complaint by any person, any act or omission of any public official, employee, office
or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
[123]
The Office of the Ombudsman was also given fiscal autonomy.[124] These constitutional
policies will be devalued if we sustain petitioners claim that a non-sitting president enjoys
immunity from suit for criminal acts committed during his incumbency.
V

Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting
the investigation of the cases filed against him due to the barrage of prejudicial publicity on his
guilt. He submits that the respondent Ombudsman has developed bias and is all set to file the
criminal cases in violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on how to deal with
the rain of unrestrained publicity during the investigation and trial of high profile cases.
[125]
The British approach the problem with the presumption that publicity will prejudice a
jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to
fair trial suffers a threat.[126] TheAmerican approach is different. US courts assume
a skeptical approach about the potential effect of pervasive publicity on the right of an accused
to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial
probability of irreparable harm, strong likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to stop
the trials or annul convictions in high profile criminal cases.[127] In People vs. Teehankee, Jr.,
[128]
later reiterated in the case of Larranaga vs. Court of Appeals, et al., [129] we laid down the
doctrine that:

We cannot sustain appellants claim that he was denied the right to impartial trial due
to prejudicial publicity. It is true that the print and broadcast media gave the case at
bar pervasive publicity, just like all high profile and high stake criminal trials. Then

and now, we now rule that the right of an accused to a fair trial is not incompatible to
a free press. To be sure, responsible reporting enhances an accuseds right to a fair trial
for, as well pointed out, a responsible press has always been regarded as the
handmaiden of effective judicial administration, especially in the criminal field x x
x. The press does not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The
mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated the mind of the trial judge and
impaired his impartiality. For one, it is impossible to seal the minds of members of the
bench from pre-trial and other off-court publicity of sensational criminal cases. The
state of the art of our communication system brings news as they happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, our idea of a fair and impartial
judge is not that of a hermit who is out of touch with the world. We have not installed
the jury system whose members are overly protected from publicity lest they lose their
impartiality. x x x x x x x x x. Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to a
litigation. Their mere exposure to publications and publicity stunts does not per
se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial
judge due to the barrage of publicity that characterized the investigation and trial of
the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of
possibility of prejudice and adopted the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, the records do not show that the trial judge
developed actual bias against appellant as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of circumstances of the
case does not prove that the trial judge acquired a fixed opinion as a result of
prejudicial publicity which is incapable if change even by evidence presented during
the trial. Appellant has the burden to prove this actual bias and he has not discharged
the burden.
We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de
Leon, etc.[130] and its companion cases. viz.:

Again, petitioners raise the effect of prejudicial publicity on their right to due process
while undergoing preliminary investigation. We find no procedural impediment to its

early invocation considering the substantial risk to their liberty while undergoing a
preliminary investigation.
xxx

The democratic settings, media coverage of trials of sensational cases cannot be

avoided and oftentimes, its excessiveness has been aggravated by kinetic
developments in the telecommunications industry. For sure, few cases can match the
high volume and high velocity of publicity that attended the preliminary investigation
of the case at bar. Our daily diet of facts and fiction about the case continues unabated
even today. Commentators still bombard the public with views not too many of which
are sober and sublime. Indeed, even the principal actors in the case the NBI, the
respondents, their lawyers and their sympathizers have participated in this media
blitz. The possibility of media abuses and their threat to a fair trial notwithstanding,
criminal trials cannot be completely closed to the press and public. Inn the seminal
case of Richmond Newspapers, Inc. v. Virginia, it was wisely held:
xxx

(a) The historical evidence of the evolution of the criminal trial in Anglo-American
justice demonstrates conclusively that the time this Nations organic laws were
adopted, criminal trials both here and in England had long been presumptively open,
thus giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret bias
or partiality. In addition, the significant community therapeutic value of public trials
was recognized: when a shocking crime occurs, a community reaction of outrage and
public protest often follows, and thereafter the open processes of justice serve an
important prophylactic purpose, providing an outlet for community concern, hostility,
and emotion. To work effectively, it is important that societys criminal process satisfy
the appearance of justice, Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct
11, which can best be provided by allowing people to observe such process. From this
unbroken, uncontradicted history, supported by reasons as valid today as in centuries
past, it must be concluded that a presumption of openness inheres in the very nature of
a criminal trial under this Nations system of justice, Cf., e.g., Levine v. United States,
362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedoms such as
those of speech and press, the First Amendment can be read as protecting the right of
everyone to attend trials so as give meaning to those explicit guarantees; the First
Amendment right to receive information and ideas means, in the context of trials, that

the guarantees of speech and press, standing alone, prohibit government from
summarily closing courtroom doors which had long been open to the public at the
time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a catalyst
to augment the free exercise of the other First Amendment rights with which it was
deliberately linked by the draftsmen. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and quality
of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees
to the public the right to attend criminal trials, various fundamental rights, not
expressly guaranteed, have been recognized as indispensable to the enjoyment of
enumerated rights. The right to attend criminal trial is implicit in the guarantees of the
First Amendment: without the freedom to attend such trials, which people have
exercised for centuries, important aspects of freedom of speech and of the press could
be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al.,we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the case at
bar, we find nothing in the records that will prove that the tone and content of the
publicity that attended the investigation of petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of
publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown
and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief
State Prosecutor and Senior State Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining whether they can easily be blinded
by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable
indicia of bias for it does not appear that they considered any extra-record evidence
except evidence properly adduced by the parties. The length of time the investigation
was conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member of the DOJ
Panel on the ground of bias resulting from their bombardment of prejudicial publicity.
(emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent
Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of

proof.[131] He needs to show more weighty social science evidence to successfully prove the
impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the
petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the
office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner
that the minds of the members of this special panel have already been infected by bias because of
the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with
its findings and the Court cannot second guess whether its recommendation will be unfavorable
to the petitioner.
The records show that petitioner has instead charged respondent Ombudsman himself with
bias. To quote petitioners submission, the respondent Ombudsman has been influenced by the
barrage of slanted news reports, and he has buckled to the threats and pressures directed at him
by the mobs.[132] News reports have also been quoted to establish that the respondent Ombudsman
has already prejudged the cases of the petitioner [133]and it is postulated that the prosecutors
investigating the petitioner will be influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy
of the news reports referred to by the petitioner cannot be the subject of judicial notice by this
Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice
and the presumption of good faith and regularity in the performance of official duty to which he
is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules
of Criminal Procedure, give investigating prosecutors the independence to make their own
findings and recommendations albeit they are reviewable by their superiors. [134] They can be
reversed but they can not be compelled to change their recommendations nor can they be
compelled to prosecute cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the
finding of probable cause against him is the result of bias, he still has the remedy of assailing it
before the proper court.
VI.

Epilogue

A word of caution to the hooting throng. The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman.
Predictably, the call from the majority for instant justice will hit a higher decibel while the
gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused
to a fair investigation and trial which has been categorized as the most fundamental of all
freedoms.[135] To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His
is the obligation to insure that the preliminary investigation of the petitioner shall have a circusfree atmosphere. He has to provide the restraint against what Lord Bryce calls the impatient
vehemence of the majority. Rights in a democracy are not decided by the mob whose judgment is
dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number

for in a democracy, the dogmatism of the majority is not and should never be the definition of the
rule of law. If democracy has proved to be the best form of government, it is because it has
respected the right of the minority to convince the majority that it is wrong. Tolerance of
multiformity of thoughts, however offensive they may be, is the key to mans progress from the
cave to civilization. Let us not throw away that key just to pander to some peoples prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent
Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.
SO ORDERED.
Bellosillo, Melo, Quisumbing, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., no part in view of expression given in the open court and in the extended
explanation.
Vitug, J., see concurring opinion.
Kapunan, J., concur in the result and reserve the right to write a separate opinion.
Mendoza, J., see concurring opinion.
Panganiban, J., no part per letter of Inhibition dated Feb. 15, 2000 mention in footnote 51 of
ponencia.
Pardo, J., in the result; believes that petitioner was constrained to resign and reserve his vote
in immunity from suit
Buena, J., in the result.
Ynares-Santiago, J., concur in the result and reserve the filing of a separate opinion.
Sandoval-Gutierrez, J., concur in the result and reserve the right to write a separate opinion.

[1]

Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

[2]

PDI, October 6, 2000, pp. A1 and A18.

[3]

Ibid., October 12, 2000, pp. A1 and A17.

[4]

Ibid., October 14, 2000, p. A1.

[5]

Ibid., October 18, 2000, p. A1.

[6]

Ibid., October 13, 2000, pp. A1 and A21.

[7]

Ibid., October 26, 2000, p. A1.

[8]

Ibid., November 2, 2000, p. A1.

[9]

Ibid., November 3, 2000, p. A1.

[10]

Ibid., November 4, 2000, p. A1.

[11]

The complaint for impeachement was based on the following grounds: bribery, graft and corruption, betrayal of
public trust, and culpable violation of the Cnstitution.
[12]

Ibid., November 14, 2000, p. A1.

[13]

Ibid., November 21, 2000, p. A1.

[14]

Ibid., December 8, 2000, p. A1.

[15]

Ibid., December 23, 2000, pp. A1 and A19.

[16]

Ibid., January 12, 2001, p. A1.

[17]

Those who voted yes to open the envelop were: Senators Pimentel, Guingona, Drilon, Cayetano, Roco, Legarda,
Magsaysay, Flavier, Biazon, Osmea III. Those who vote no were Senators Ople, Defensor-Santiago, John Osmea,
Aquino-Oreta, Coseteng, Enrile, Honasan, Jaworski, Revilla, Sotto III and Tatad.
[18]

Philippine Star, January 17, 2001, p. 1.

[19]

Ibid., January 18, 2001, p. 4.

[20]

Ibid., p. 1.

[21]

Ibid., January 19, 2001, pp. 1 and 8.

[22]

Eraps Final Hours Told by Edgardo Angara, (hereinafter referred to as Angara Diary), PDI, February 4, 2001, p.
A16.
[23]

Philippine Star, January 20, 2001, p. 4.

[24]

PDI, February 4, 2001, p. A16.

[25]

Philippine Star, January 20, 2001, pp. 1 and 11.

[26]

Ibid., January 20, 2001, p. 3.

[27]

PDI, February 5, 2001, pp. A1 and A6.

[28]

Philippine Star, January 21, 2001, p. 1.

[29]

PDI, February 6, 2001, p. A12.

[30]

Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

[31]

Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

[32]

Ibid.

[33]

Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

[34]

Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001, p. 3; PDI, January 25,
2001, pp. A1 and A15.
[35]

Philippine Star, January 24, 2001, p. 1.

[36]

PDI, January 25, 2001, p. 1.

[37]

Ibid., p. 2.

[38]

Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15 p. 290.

[39]

Annex D, id; ibid., p. 292.

[40]

PDI, January 27, 2001, p. 1.

[41]

PDI, February 13, 2001, p. A2.

[42]

Philippine Star, February 13, 2001, p. A2.

[43]

Annex E, id.; ibid., p. 295.

[44]

PDI, February 8, 2001, pp. A1 & A19.

[45]

Annex F, id.; ibid., p. 297.

[46]

PDI, February 10, 2001, p. A2.

[47]

Annex G., id.; ibid., p. 299.

[48]

PDI, February 8, 2001, p. A19.

[49]

Philippine Star, February 3, 2001, p. 4.

[50]

Acceptance of Gloria is Nationwide, Mahar Mangahas, Manila Standard, February 16, 2001, p. 14.

[51]

See The Chief Justices Extended Explanation for His Voluntary Inhibition; Rollo, GR Nos. 146710-15, pp. 525527.
[52]

See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp. 120-125.

[53]

Rollo, G.R. No. 146738, p. 134.

[54]

Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos. 146710-15, Vol. III, pp.
809-820.
[55]

Gunther and Sullivan, Constitutional Law, 13th ed., pp. 45-46.

[56]

369 US 186, 82 S.Ct. 691, 7 L ed 2d 663, 686 (1962).

[57]

See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15 August 2000;
Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA 756 (1998); Tatad v. Secretary of the
Department of Energy, 281 SCRA 330 (1997); Marcos v. Manglapus, 177 SCRA 668 (1989);
Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17
(1949); Vera v. Avelino, 77 Phil 192 (1946); Alejandrino v.Quezon, 46 Phil 83 (1942).
[58]

103 Phil 1051, 1068 (1957).

[59]

Section 1, Article VIII, 1987 Constitution.

[60]

Note that the early treatises on Constitutional Law are discourses on limitations of power typical of which is,
Cooleys Constitutional Limitations.
[61]

Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres. Corazon C. Aquino, et
al., GR No. 73748; Peoples Crusade for Supremacy of the Constitution, etc. v. Mrs. Cory Aquino, et al., GR No.
73972; and Councilor Clifton U. Ganay v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.
[62]

Letter of Associate Justice Reynato S. Puno, 210 SCRA 597 [1992].

[63]

Proclamation No. 3. (1986)

[64]

It states:

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will faithfully and
conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution, execute its
laws, do justice to every man, and consecrate myself to the service of the nation.
So help me God.
(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15 Vol. II, p. 332)
[65]

See Filipinas Despues de Cien Aos (The Philippines a Century Hence), p. 62.

[66]

The guaranty was taken from Amendment I of the US Constitution which provides: Congress shall make no law
respecting an establishment of religion or prohibiting the free exercise thereof of abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of
grievance.
[67]

See section 8, Article IV.

[68]

See section 9, Article IV.

[69]

Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

[70]

Ibid., See also concurring opinion of Justice Branders in Whitney v. California (74 US 357, 375-76) where he said
... the greatest menace to freedom is an inert people...
[71]

307 US 496 (1939).

[72]

Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.

[73]

260 SCRA 798 (1996).

[74]

Section 1, Article II of the 1987 Constitution reads:

The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.
[75]

Infra at 26.

[76]

Infra at 41.

[77]

1 Cranch (5 US) 137, 2 L ed 60 (1803).

[78]

Gonzales v. Hernandez,

[79]

See its February 4, 5, and 6, 2001 issues.

[80]

PDI, February 4, 2001, p. A1.

[81]

Ibid.

[82]

Ibid.

[83]

Ibid.

[84]

Ibid.

[85]

Ibid.

[86]

PDI, February 5, 2001, p. A1.

[87]

Ibid., p. A-1.

[88]

Ibid.

[89]

PDI, February 5, 2001, p. A6.

[90]

PDI, February 6, 2001, p. A1.

2 SCRA 228 (1961).

[91]

In the Angara Diary which appeared in the PDI issue of February 5, 2001, Secretary Angara stated that the letter
came from Asst. Secretary Boying Remulla; that he and Political Adviser Banayo opposed it; and that PMS head
Macel Fernandez believed that the petitioner would not sign the letter.
[92]

Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.

[93]

Id., May 9, 1959, p. 1988.

[94]

Section 18 (2), Article III of the 1987 Constitution provides: No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the party shall have been duly convicted.
[95]

Reply Memorandum, p. 3; Rollo, G.R. Nos. 146710-15, Vol. IV.

[96]

House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:

RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE

ADMINISTRATION OF HER EXCELLENCY, GLORIA MACAPAGAL-ARROYO, PRESIDENT OF THE
PHILIPPINES
WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as the 14th President of
the Philippines;

WHEREAS, her ascension to the highest office of the land under the dictum, the voice of the people is the voice of
God establishes the basis of her mandate on integrity and morality in government;
WHEREAS, the House of Representatives joins the church, youth, labor and business sectors in fully supporting the
Presidents strong determination to succeed;
WHEREAS, the House of representative is likewise one with the people in supporting President Gloria MacapagalArroyos call to start the healing and cleansing process for a divided nation in order to build an edifice of peace,
progress and economic stability for the country: Now, therefore, be it Resolved by the House of Representatives, To
express its full support to the administration of Her Excellency, Gloria Macapagal-Arroyo, 14th President of the
Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by House of Representatives on January 24, 2001.
(Sgd.) Roberto P. Nazareno
Secretary General
[97]

11th Congress, 3rd Session (2001).

[98]

11th Congress, 3rd Session (2001).

[99]

Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol. II, p. 231.

[100]

11th Congress, 3rd Session (2001).

[101]

11th Congress, 3rd Session (2001).

[102]

103 Phil 1051, 1067 (1957).

[103]

Baker vs. Carr, supra at 686 headnote 29.

[104]

16 Phil 534 (1910).

[105]

The logical basis for executive immunity from suit was originally founded upon the idea that the King can do no
wrong. [R.J. Gray, Private Wrongs of Public Servants, 47 CAL. L. REV.. 303 (1959)]. The concept thrived at the
time of absolute monarchies in medieval England when it was generally accepted that the seat of sovereignty and
governmental power resides in the throne. During that historical juncture, it was believed that allowing the King to
be sued in his court was a contradiction to the sovereignty of the King.
With the development of democratic thoughts and institutions, this kind of rationalization eventually lost its moral
force. In the United States, for example, the common law maxim regarding the Kings infallibility had limited
reception among the framers of the Constitution. [J. Long, How to Sue the President: A Proposal for Legislation
Establishing the Extent of Presidential Immunity, 30 VAL. U.L. REV. 283 (1995)]. Still, the doctrine of presidential
immunity found its way of surviving in modern political times, retaining both its relevance and vitality. The
privilege, however, is now justified for different reasons. First, the doctrine is rooted in the constitutional tradition of
separation of powers and supported by history. [Nixon v. Fitzgerald, 451 U.S. 731 (1982)]. The separation of powers
principle is viewed as demanding the executives independence from the judiciary, so that the President should not be
subject to the judiciarys whim. Second, by reason of public convenience, the grant is to assure the exercise of
presidential duties and functions free from any hindrance or distraction, considering that the Chief Executive is a job
that, aside from requiring all of the office-holders time, also demands undivided attention. [Soliven v. Makasiar, 167
SCRA 393 (1988)]. Otherwise, the time and substance of the chief executive will be spent on wrangling litigation,
disrespect upon his person will be generated, and distrust in the government will soon follow.[Forbes v. Chouco
Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public policy, it was recognized that the gains from discouraging
official excesses might be more than offset by the losses from diminished zeal [Agabin, op. cit., at 121.]. Without
immunity, the president would de disinclined to exercise decision-making functions in a manner that might

detrimentally affect an individual or group of individuals. [See H. Schnechter, Immunity of Presidential Aides from
Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].1
[106]

62 Phil. L.J. 113 (1987).

[107]

See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

[108]

Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.

[109]

Supra at 47.

[110]

Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

[111]

145 SCRA 160 (1986).

[112]

128 SCRA 324 (1984).

[113]

In Re: Raul Gonzales, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 29 (1988); and Jarque v. Desierto, A.C. No.
4509, 250 SCRA xi-xiv (1995).
[114]

Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).

[115]

418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).

[116]

457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

[117]

520 U.S. 681 (1997).

[118]

See section 1, Art. XI of the 1987 Constitution.

[119]

See section 27, Art. II of the 1987 Constitution.

[120]

See section 1, Art. XI of the 1987 Constitution.

[121]

See section 15, Art. XI of the 1987 Constitution.

[122] See section 4, Art. XI of the 1987 Constitution.

[123]

See section 13 (1), Art. XI of the 1987 Constitution.

[124]

See section 14, Art. XI of the 1987 Constitution.

[125]

See Brandwood, Notes: You Say Fair Trial and I say Free Press: British and American Approaches to Protecting
Defendants Rights in High Profile Trials, NYU Law Rev., Vol. 75, No. 5, pp. 1412-1451 (November 2000).
[126]

Id., p. 1417.

[127]

See e.g., Martelino, et al. V. Alejandro, et al., 32 SCRA 106 (1970); People v. Teehankee, 249 SCRA 54 (1995).

[128]

249 SCRA 54 (1995).

[129]

287 SCRA 581 at pp. 596-597 (1988).

[130]

247 SCRA 652 (1995).

[131]

Extensive publicity did not result in the conviction of well known personalities. E.g., OJ Simpson, John
Mitchell, William Kennedy Smith and Imelda Marcos.
[132]

Memorandum, p. 25; Rollo, GR Nos. 146710-15, Vol. III, p. 647.

[133]

Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.

[134]

See section 4, Rule 112.

[135]

Estes v. Texas, 381 US 532, 540 (1965).

EN BANC

[G.R. No. 133495. September 3, 1998]

BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS

and JOSE T. CAPCO, JR., respondents.
DECISION
MENDOZA, J.:

This case presents for determination the scope of the constitutional provision barring
elective officials, with the exception of barangay officials, from serving more than three
consecutive terms. In particular, the question is whether a vice-mayor who succeeds to the office
of mayor by operation of law and serves the remainder of the term is considered to have served a
term in that office for the purpose of the three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988
for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law,
upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor
for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected
mayor for another term of three years ending June 30, 1998.[1]
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of
Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja, Jr., who was also a
candidate for mayor, sought Capcos disqualification on the theory that the latter would have
already served as mayor for three consecutive terms by June 30, 1998 and would therefore be
ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of
petitioner and declared private respondent Capco disqualified from running for reelection as
mayor of Pateros.[2]However, on motion of private respondent, the COMELEC en banc, voting 52, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998
elections.[3] The majority stated in its decision:

In both the Constitution and the Local

Government Code, the three-term limitation
refers to the term of office for which the
local official was elected. It made no
reference to succession to an office to which
he was not elected. In the case before the
Commission, respondent Capco was not
elected to the position of mayor in the
January 18, 1988 local elections. He
succeeded to such office by operation of law
and served for the unexpired term of his
predecessor. Consequently, such succession

into office is not counted as one (1) term for

purposes of the computation of the threeterm limitation under the Constitution and
the Local Government Code.
Accordingly, private respondent was voted for in the elections. He received 16,558 votes
against petitioners 7,773 votes and was proclaimed elected by the Municipal Board of
Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated May 7, 1998, of he
COMELEC and to seed a declaration that private respondent is disqualified to serve another term
as Mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capcos service as mayor from September 2,
1989 to June 30, 992 should be considered as service for full one term, and since he thereafter
served from 1992 to 1998 two more terms as mayor, he should be considered to have served
three consecutive terms within the contemplation of Art. X, 8 of the Constitution and 43(b) of the
Local Government Code. Petitioner stresses the fact that, upon the death of Mayor Cesar Borja
on September 2, 1989, private respondent became the mayor and thereafter served the remainder
of the term. Petitioner argues that it is irrelevant that private respondent became mayor by
succession because the purpose of the constitutional provision in limiting the number of terms
elective local officials may serve is to prevent a monopolization of political power.
This contention will not bear analysis. Article X, 8 of the Constitution provides:

SEC. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms.Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):

Sec. 43. Term of Office - . . .

(b) No local elective official shall serve for more than three (3) consecutive terms
in the same position. Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected.
First, to prevent the establishment of political dynasties is not the only policy embodied in
the constitutional provision in question. The other policy is that of enhancing the freedom of
choice of the people. To consider, therefore, only stay in office regardless of how the official
concerned came to that office whether by election or by succession by operation of law would be
to disregard one of the purposes of the constitutional provision in question.

Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals

that the members of the Constitutional Commission were as much concerned with preserving the
freedom of choice of the people as they were with preventing the monopolization of political
power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after
serving three consecutive terms or nine years there should be no further reelection for local and
legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian
Monsod that such officials be simply barred from running for the same position in the
succeeding election following the expiration of the third consecutive term. [4] Monsod warned
against prescreening candidates [from] whom the people will choose asa result of the
proposed absolute disqualification, considering that the draft constitution provision recognizing
peoples power.[5]
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a temporary or a
perpetual disqualification on those who have served their terms in accordance with the limits on
consecutive service as decided by the Constitutional Commission. I would be very wary about
this Commission exercising a sort of omnipotent power in order to disqualify those who will
already have served their terms from perpetuating themselves in office. I think the Commission
achieves its purpose in establishing safeguards against the excessive accumulation of power as a
result of consecutive terms. We do put a cap on consecutive service in the case of the President,
six years; in the case of the Vice-President, unlimited; and in the case of the Senators, one
reelection. In the case of the Members of Congress, both from the legislative districts and from
the party list and sectoral representation, this is now under discussion and later on the policy
concerning local officials will be taken up by the Committee on Local Governments.The
principle remains the same. I think we want to prevent future situations where, as a result of
continuous service and frequent reelections, officials from the President down to the municipal
mayor tend to develop a proprietary interest in their position and to accumulate those powers and
perquisites that permit them to stay on indefinitely or to transfer these posts to members of their
families in a subsequent election. I think that is taken care of because we put a gap on the
continuity or the unbroken service of all of these officials. But where we now decide to put these
prospective servants of the people or politicians, if we want to use the coarser term, under a
perpetual disqualification, I have a feeling that we are taking away too much from the people,
whereas we should be giving as much to the people as we can in terms of their own freedom of
choice.[6]
Other commissioners went on record against perpetually disqualifying elective officials who
have served a certain number of terms as this would deny the right of the people to choose. As
Commissioner Yusup R. Abubakar asked, why should we arrogate unto ourselves the right to
decide what the people want?[7]
Commisioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues
to "allow the people to exercise their own sense of proportion and [rely] on their own strength to
curtail power when it overreaches itself.[8]
Commissioner Teodoro C. Bacani stressed: Why should we not leave [perpetual
disqualification after serving a number of terms] to the premise accepted by practically
everybody here that our people are politically mature? Should we use this assumption only when

it is convenient for us, and not when it may also lead to a freedom of choice for the people and
for politicians who may aspire to serve them longer?[9]
Two ideas thus emerge from a consideration of the proceedings of the Constitutional
Commission. The first is the notion of service of term, derived from the concern about the
accumulation of power as a result of a prolonged stay in office. The second is the idea
of election, derived from the concern that the right of the people to choose those whom they wish
to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did
so on the assumption that the officials concerned were serving by reason of reelection. This is
clear from the following exchange in the Constitutional Commission concerning term limits,
now embodied in Art. VI 4 and 7 of the Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will
allow the Senator to rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before if the Gentlemen will rememberwas: How long will that period of rest be? Will it be one election which is three years or one term
which is six years?

MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view
that during the election following the expiration of the first 12 years, whether
such election will be on the third year or on the sixth year thereafter, this particular
member of the Senate can run. So it is not really a period of hibernation for six
years. That was the Committees stand.[10]
Indeed, a fundamental tenet of representative democracy is that the people should be
allowed to choose whom they please to govern them. [11] To bar the election of a local official
because he has already served three terms, although the first as a result of succession by
operation of law rather than election, would therefore be to violate this principle.
Second, not only historical examination but textual analysis as well supports the ruling of
the COMELEC that Art. X, 8 contemplates service by local officials for three consecutive terms
as a result of election. The first sentence speaks of the term of office of elective local officials
and bars such official[s] from serving for more than three consecutive terms. The second
sentence, in explaining when an elective local official may be deemed to have served his full
term of office, states that voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected. The term served must therefore be one for which [the official concerned] was
elected. The purpose of this provision is to prevent a circumvention of the limitation on the
number of terms an elective official may serve. Conversely, if he is not serving a term for which
he was elected because he is simply continuing the service of the official he succeeds, such
official cannot be considered to have fully served the term now withstanding his voluntary
renunciation of office prior to its expiration.
Reference is made to Commissioner Bernas comment on Art. VI, 7, which similarly bars
members of the House of Representatives from serving for more than three terms. Commissioner
Bernas states that if one is elected Representative to serve the unexpired term of another, that

unexpired term, no matter how short, will be considered one term for the purpose of computing
the number of successive terms allowed.[12]
This is actually based on the opinion expressed by Commissioner Davide in answer to a
query of Commissioner Suarez: For example, a special election is called for a Senator, and the
Senator newly elected would have to serve the unexpired portion of the term. Would that mean
that serving the unexpired portion of the term is already considered one term? So, half a term,
which is actually the correct statement, plus one term would disqualify the Senator concerned
from running? Is that the meaning of this provision on disqualification, Madam
President? Commissioner Davide said: Yes, because we speak of term and if there is a special
election, he will serve only for the unexpired portion of that particular term plus one more term
for the Senator and two more terms for the Members of the Lower House.[13]
There is a difference, however, between the case of a vice-mayor and that of a member of
the House of Representatives who succeeds another who dies, resigns, becomes incapacitated, or
is removed from office. The vice-mayor succeeds to the mayorship by operation of law.[14] On the
other hand, the Representative is elected to fill the vacancy.[15] In a real sense, therefore, such
Representative serves a term for which he was elected. As the purpose of the constitutional
provision is to limit the right ot be elected and to serve in Congress, his service of the unexpired
term is rightly counted as his first term.Rather than refute what we believe to be the intendment
of Art. X, 8 with regard to elective local officials, the case of a Representative who succeeds
another confirms the theory.
Petitioner also cites Art. VII, 4 of the Constitution which provides for succession of the
Vice-President to the Presidency in case of vacancy in that office. After stating that The President
shall not be eligible for any reelection, this provision says that No person who has succeeded as
President and has served as such for more than four years shall be qualified for election to the
same office at any time.Petitioner contends that, by analogy, the vice-mayor should likewise be
considered to have served a full term as mayor if he succeeds to the latters office and serves for
the remainder of the term.
The framers of the Constitution included such a provision because, without it, the VicePresident, who simply steps into the Presidency by succession would be qualified to run for
President even if he has occupied that office for more than four years. The absence of a similar
provision in Art. X, 8 on elective local officials throws in bold relief the difference between the
two cases. It underscores the constitutional intent to cover only the terms of office to which one
may have been elected for purpose of the three-term limit on local elective officials, disregarding
for this purpose service by automaticsuccession.
There is another reason why the Vice-President who succeeds to the Presidency and serves
in that office for more than four years is ineligible for election as President. The Vice-President is
elected primarily to succeed the President in the event of the latters death, permanent disability,
removal or resignation. While he may be appointed to the cabinet, his becoming so is entirely
dependent on the good graces of the President. In running for Vice-President, he may thus be
said to also seek the Presidency. For their part, the electors likewise choose as Vice-President the
candidate who they think can fill the Presidency in the event it becomes vacant. Hence, service in
the presidency for more than four years may rightly be considered as service for a full term.

This is not so in the case of the vice-mayor. Under the local Government Code, he is the
presiding officer of the sanggunian and he appoints all officials and employees of such local
assembly. He has distinct powers and functions, succession to mayorship in the event of vacancy
therein being only one of them. [16] It cannot be said of him, as much as of the Vice-President in
the event of a vacancy in the Presidency, that in running for vice-mayor, he also seeks the
mayorship. His assumption of the mayorship in the event of vacancy is more a matter of chance
than of design. Hence, his service in that office should not be counted in the application of any
term limit.
To recapitulate, the term limit for elective local officials must be taken to refer to the right to
be elected as well as the right to serve in the same elective position. Consequently, it is not
enough that an individual has served three consecutive terms in an elective local office, he must
also have been elected to the same position for the same number of times before the
disqualification can apply. This point can be made clearer by considering the following cases or
situations:

Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of
the incumbent. Six months before the next election, he resigns and is twice elected
thereafter. Can he run again for mayor in the next election.
Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not actually
served three full terms in all for the purpose of applying the term limit. Under Art. X,
8, voluntary renunciation of the office is not considered as an interruption in the
continuity of his service for the full term only if the term is one for which he was
elected. Since A is only completing the service of the term for which the deceased and
not he was elected. A cannot be considered to have completed one term. His
resignation constitutes an interruption of the full term.
Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice
suspended for misconduct for a total of 1 year. If he is twice reelected after that, can
he run for one more term in the next election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because the two conditions for the
application of the disqualification provisions have not concurred, namely, that the local official
concerned has been elected three consecutive times and that he has fully served three consecutive
terms. In the first case, even if the local official is considered to have served three full terms
notwithstanding his resignation before the end of the first term, the fact remains that he has not
been elected three times. In the second case, the local official has been elected three consecutive
times, but he has not fully served three consecutive terms.

Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a
total failure of the two conditions to concur for the purpose of applying Art. X

8. Suppose he is twice elected after that term, is he qualified to run again in the next
election?
Yes, because he was not elected to the office of the mayor in the first term but simply
found himself thrust into it by operation of law. Neither had he served the full term
because he only continued the service, interrupted by the death , of the deceased
mayor.
To consider C in the third case to have served the first term in full and therefore ineligible to
run a third time for reelection would be not only to falsify reality but also to unduly restrict the
right of the people to choose whom they wish to govern them. If the vice-mayor turns out to be a
bad mayor, the people can remedy the situation by simply not reelecting him for another
term. But if, on the other hand, he proves to be a good mayor, there will be no way the people
can return him to office (even if it is just the third time he is standing for reelection) if his service
of the first term is counted as one of the purpose of applying the term limit.
To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that a
monopoly of political power may bring about, care should be taken that their freedom of choice
is not unduly curtailed.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban,
Martinez, Quisumbing and Purisima, JJ., concur.
Regalado, J., on official leave.

[1]

Rollo, pp. 5-6, 124-125.

[2]

Id., pp. 63-71.

[3]

Id., pp. 30-32.

[4]

2 RECORD OF THE CONSTITUTIONAL COMMISSION 236-243 (Session of July 25, 1986) (hereafter cited as
RECORD)
[5]

Id., at 236.

[6]

Id., at 239-240.

[7]

Id., at 242.

[8]

Id., at 242.

[9]

Id., at 243.

[10]

Id., 590 (August 7, 1986).

[11]

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 131 L. Ed. 2d 881 (1995)

[12]

JOAQUIN BERNAS,THE 1987 CONSTITUTION 637 (1996).

[13]

2 RECORD 592 (Session of August 7, 1986).

[14]

LOCAL GOVERNMENT CODE of 1991, R.A. No. 7160, 44(a).

[15]

Art. VI, 8.

[16]

R.A. No. 7160, 445 (1991).