EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
TRADITIONAL JUDICIAL REVIEW
REQUIREMENTS FOR INVOKING JUDICIAL REVIEW
ACTUAL CASE OR CONTROVERSY
G.R. No. 169777* April 20, 2006
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his
capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate
President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority
Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader,
SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY
EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE,
RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL,
SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of
President Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf
of the President of the Philippines, Respondents.
x-------------------------x
G.R. No. 169659 April 20, 2006
BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR
OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA,
Rep. TEODORO CASINO, Rep. JOEL VIRADOR, COURAGE represented by
FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL)
represented by ATTY. REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of
President Gloria Macapagal-Arroyo, Respondent.
x-------------------------x
G.R. No. 169660 April 20, 2006
FRANCISCO I. CHAVEZ, Petitioner,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ,
JR., in his capacity as Secretary of Defense, and GENEROSO S. SENGA, in his
capacity as AFP Chief of Staff, Respondents.
x-------------------------x
G.R. No. 169667 April 20, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.
x-------------------------x
G.R. No. 169834 April 20, 2006
PDP- LABAN, Petitioner,
vs.
x-------------------------x
G.R. No. 171246 April 20, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE
AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P.
LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA,
and the INTEGRATED BAR FOR THE PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state. Even in the
early history of republican thought, however, it has been recognized that the head of
government may keep certain information confidential in pursuit of the public interest.
Explaining the reason for vesting executive power in only one magistrate, a
distinguished delegate to the U.S. Constitutional Convention said: "Decision, activity,
secrecy, and dispatch will generally characterize the proceedings of one man, in a much
more eminent degree than the proceedings of any greater number; and in proportion as
the number is increased, these qualities will be diminished."1
History has been witness, however, to the fact that the power to withhold information
lends itself to abuse, hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that the President
has abused such power by issuing Executive Order No. 464 (E.O. 464) last September
28, 2005. They thus pray for its declaration as null and void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that the
issuance under review has come from a co-equal branch of government, which thus
entitles it to a strong presumption of constitutionality. Once the challenged order is found
to be indeed violative of the Constitution, it is duty-bound to declare it so. For the
Constitution, being the highest expression of the sovereign will of the Filipino people,
must prevail over any issuance of the government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through its various
Senate Committees, conducts inquiries or investigations in aid of legislation which call
for, inter alia, the attendance of officials and employees of the executive department,
bureaus, and offices including those employed in Government Owned and Controlled
Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National
Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued
invitations to various officials of the Executive Department for them to appear on
September 29, 2005 as resource speakers in a public hearing on the railway project of
the North Luzon Railways Corporation with the China National Machinery and
Equipment Group (hereinafter North Rail Project). The public hearing was sparked by a
privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the
alleged overpricing and other unlawful provisions of the contract covering the North Rail
Project.
The Senate Committee on National Defense and Security likewise issued invitations2
dated September 22, 2005 to the following officials of the AFP: the Commanding
General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of
the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP
Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen.
Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA)
Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the
PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public
hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of
Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has
Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral
Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy
E. Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping
Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on
August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed
by Senator Maria Ana Consuelo Madrigal – Resolution Directing the Committee on
National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the
National Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and (5)
Senate Resolution No. 295 filed by Senator Biazon – Resolution Directing the
Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation,
on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was the AFP
Chief of Staff, General Generoso S. Senga who, by letter3 dated September 27, 2005,
requested for its postponement "due to a pressing operational situation that demands
[his utmost personal attention" while "some of the invited AFP officers are currently
attending to other urgent operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from Executive
Secretary Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully
request[ing] for the postponement of the hearing [regarding the NorthRail project] to
which various officials of the Executive Department have been invited" in order to "afford
said officials ample time and opportunity to study and prepare for the various issues so
that they may better enlighten the Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators
"are unable to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations
and arrangements as well as notices to all resource persons were completed [the
previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter6 from the
President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that
the hearing on the NorthRail project be postponed or cancelled until a copy of the report
of the UP Law Center on the contract agreements relative to the project had been
secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and
Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of
Legislation Under the Constitution, and For Other Purposes,"7 which, pursuant to
Section 6 thereof, took effect immediately. The salient provisions of the Order are as
follows:
SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance
with Article VI, Section 22 of the Constitution and to implement the Constitutional
provisions on the separation of powers between co-equal branches of the government,
all heads of departments of the Executive Branch of the government shall secure the
consent of the President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so
states in writing, the appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is
fundamental to the operation of government and rooted in the separation of powers
under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further,
Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials
and Employees provides that Public Officials and Employees shall not use or divulge
confidential or classified information officially known to them by reason of their office and
not made available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the
President and the public officers covered by this executive order, including:
Conversations and correspondence between the President and the public official
covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995;
Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters which in the interest of national
security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995;
Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9
December 1998).
Information between inter-government agencies prior to the conclusion of treaties and
executive agreements (Chavez v. Presidential Commission on Good Government, G.R.
No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates Authority,
G.R. No. 133250, 9 July 2002).
(b) Who are covered. – The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department heads
are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such other officers
who in the judgment of the Chief of Staff are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or higher and
such other officers who in the judgment of the Chief of the PNP are covered by the
executive privilege;
Senior national security officials who in the judgment of the National Security Adviser are
covered by the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials
enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to
appearing before either House of Congress to ensure the observance of the principle of
separation of powers, adherence to the rule on executive privilege and respect for the
rights of public officials appearing in inquiries in aid of legislation. (Emphasis and
underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter8 informing him "that officials of
the Executive Department invited to appear at the meeting [regarding the NorthRail
project] will not be able to attend the same without the consent of the President,
pursuant to [E.O. 464]" and that "said officials have not secured the required consent
from the President." On even date which was also the scheduled date of the hearing on
the alleged wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the
Committee on National Defense and Security, informing him "that per instruction of
[President Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is
authorized to appear before any Senate or Congressional hearings without seeking a
written approval from the President" and "that no approval has been granted by the
President to any AFP officer to appear before the public hearing of the Senate
Committee on National Defense and Security scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary Ermita and Gen. Senga,
the investigation scheduled by the Committee on National Defense and Security pushed
through, with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited
attending.
For defying President Arroyo’s order barring military personnel from testifying before
legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were
relieved from their military posts and were made to face court martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005, Executive
Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations
sent to the following government officials: Light Railway Transit Authority Administrator
Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso,
Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential
Legal Counsel Merceditas Gutierrez, Department of Transportation and Communication
(DOTC) Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza,
Philippine National Railways General Manager Jose Serase II, Monetary Board Member
Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets
likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and
169667, for certiorari and prohibition, were filed before this Court challenging the
constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives
Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and
Teodoro Casino, Courage, an organization of government employees, and Counsels for
the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of
justice, democracy and peace, all claiming to have standing to file the suit because of
the transcendental importance of the issues they posed, pray, in their petition that E.O.
464 be declared null and void for being unconstitutional; that respondent Executive
Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President
Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials
who appear before Congress due to congressional summons. Additionally, petitioners
claim that E.O. 464 infringes on their rights and impedes them from fulfilling their
respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as
a political party entitled to participate in governance; Satur Ocampo, et al. allege that
E.O. 464 infringes on their rights and duties as members of Congress to conduct
investigation in aid of legislation and conduct oversight functions in the implementation
of laws; Courage alleges that the tenure of its members in public office is predicated on,
and threatened by, their submission to the requirements of E.O. 464 should they be
summoned by Congress; and CODAL alleges that its members have a sworn duty to
uphold the rule of law, and their rights to information and to transparent governance are
threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights
as a citizen, taxpayer and law practitioner, are affected by the enforcement of E.O. 464,
prays in his petition that E.O. 464 be declared null and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a
coalition of 17 legal resource non-governmental organizations engaged in
developmental lawyering and work with the poor and marginalized sectors in different
parts of the country, and as an organization of citizens of the Philippines and a part of
the general public, it has legal standing to institute the petition to enforce its
constitutional right to information on matters of public concern, a right which was denied
to the public by E.O. 464,13 prays, that said order be declared null and void for being
unconstitutional and that respondent Executive Secretary Ermita be ordered to cease
from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital
interest in the resolution of the issue of the validity of E.O. 464 for it stands to suffer
imminent and material injury, as it has already sustained the same with its continued
enforcement since it directly interferes with and impedes the valid exercise of the
Senate’s powers and functions and conceals information of great public interest and
concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777 and
prays that E.O. 464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members duly elected
into the Philippine Senate and House of Representatives, filed a similar petition for
certiorari and prohibition, docketed as G.R. No. 169834, alleging that it is affected by the
challenged E.O. 464 because it hampers its legislative agenda to be implemented
through its members in Congress, particularly in the conduct of inquiries in aid of
legislation and transcendental issues need to be resolved to avert a constitutional crisis
between the executive and legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to
Gen. Senga for him and other military officers to attend the hearing on the alleged
wiretapping scheduled on February 10, 2005. Gen. Senga replied, however, by letter15
dated February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e] Headquarters
requested for a clearance from the President to allow [them] to appear before the public
hearing" and that "they will attend once [their] request is approved by the President." As
none of those invited appeared, the hearing on February 10, 2006 was cancelled.16
In another investigation conducted jointly by the Senate Committee on Agriculture and
Food and the Blue Ribbon Committee on the alleged mismanagement and use of the
fertilizer fund under the Ginintuang Masaganang Ani program of the Department of
Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on
October 5 and 26, November 24 and December 12, 2005 but most of them failed to
attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose Montes,
Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,17 and those from
the Department of Budget and Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary
and Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20
and Department of Interior and Local Government Undersecretary Marius P. Corpus21
communicated their inability to attend due to lack of appropriate clearance from the
President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however,
Secretary Bunye was allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board
of Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated
Bar of the Philippines as the official organization of all Philippine lawyers, all invoking
their constitutional right to be informed on matters of public interest, filed their petition for
certiorari and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be
declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order enjoining
respondents from implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the following
substantive issues were ventilated: (1) whether respondents committed grave abuse of
discretion in implementing E.O. 464 prior to its publication in the Official Gazette or in a
newspaper of general circulation; and (2) whether E.O. 464 violates the following
provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1,
Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural
issue of whether there is an actual case or controversy that calls for judicial review was
not taken up; instead, the parties were instructed to discuss it in their respective
memoranda.
After the conclusion of the oral arguments, the parties were directed to submit their
respective memoranda, paying particular attention to the following propositions: (1) that
E.O. 464 is, on its face, unconstitutional; and (2) assuming that it is not, it is
unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam; (b)
the NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the
investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March
7, 2006, while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next
day or on March 8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file
memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006
that it would no longer file its memorandum in the interest of having the issues resolved
soonest, prompting this Court to issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in their
consolidated memorandum38 on March 13, 2006 for the dismissal of the petitions for lack
of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the people to information on matters of
public concern; and
3. Whether respondents have committed grave abuse of discretion when they
implemented E.O. 464 prior to its publication in a newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment
of whether the requisites for a valid exercise of the Court’s power of judicial review are
present is in order.
Like almost all powers conferred by the Constitution, the power of judicial review is
subject to limitations, to wit: (1) there must be an actual case or controversy calling for
the exercise of judicial power; (2) the person challenging the act must have standing to
challenge the validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of constitutionality must be the very
lis mota of the case.39
Except with respect to the requisites of standing and existence of an actual case or
controversy where the disagreement between the parties lies, discussion of the rest of
the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R. Nos.
169659, 169660 and 169667 make it clear that they, adverting to the non-appearance of
several officials of the executive department in the investigations called by the different
committees of the Senate, were brought to vindicate the constitutional duty of the
Senate or its different committees to conduct inquiry in aid of legislation or in the
exercise of its oversight functions. They maintain that Representatives Ocampo et al.
have not shown any specific prerogative, power, and privilege of the House of
Representatives which had been effectively impaired by E.O. 464, there being no
mention of any investigation called by the House of Representatives or any of its
committees which was aborted due to the implementation of E.O. 464.
As for Bayan Muna’s alleged interest as a party-list representing the marginalized and
underrepresented, and that of the other petitioner groups and individuals who profess to
have standing as advocates and defenders of the Constitution, respondents contend
that such interest falls short of that required to confer standing on them as parties
"injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim an
interest as a taxpayer for the implementation of E.O. 464 does not involve the exercise
of taxing or spending power.41
With regard to the petition filed by the Senate, respondents argue that in the absence of
a personal or direct injury by reason of the issuance of E.O. 464, the Senate and its
individual members are not the proper parties to assail the constitutionality of E.O. 464.
Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin42
and Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert that to be
considered a proper party, one must have a personal and substantial interest in the case,
such that he has sustained or will sustain direct injury due to the enforcement of E.O.
464.44
That the Senate of the Philippines has a fundamental right essential not only for
intelligent public decision-making in a democratic system, but more especially for sound
legislation45 is not disputed. E.O. 464, however, allegedly stifles the ability of the
members of Congress to access information that is crucial to law-making.46 Verily, the
Senate, including its individual members, has a substantial and direct interest over the
outcome of the controversy and is the proper party to assail the constitutionality of E.O.
464. Indeed, legislators have standing to maintain inviolate the prerogative, powers and
privileges vested by the Constitution in their office and are allowed to sue to question the
validity of any official action which they claim infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro
Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael
Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the
constitutionality of E.O. 464, the absence of any claim that an investigation called by the
House of Representatives or any of its committees was aborted due to the
implementation of E.O. 464 notwithstanding, it being sufficient that a claim is made that
E.O. 464 infringes on their constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the
implementation of laws.
The national political party, Bayan Muna, likewise meets the standing requirement as it
obtained three seats in the House of Representatives in the 2004 elections and is,
therefore, entitled to participate in the legislative process consonant with the declared
policy underlying the party list system of affording citizens belonging to marginalized and
underrepresented sectors, organizations and parties who lack well-defined political
constituencies to contribute to the formulation and enactment of legislation that will
benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their
petitions, passing on the standing of their co-petitioners Courage and Codal is rendered
unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an organization of
citizens, and the incumbent members of the IBP Board of Governors and the IBP in
behalf of its lawyer members,50 invoke their constitutional right to information on matters
of public concern, asserting that the right to information, curtailed and violated by E.O.
464, is essential to the effective exercise of other constitutional rights51 and to the
maintenance of the balance of power among the three branches of the government
through the principle of checks and balances.52
It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders, and other regulations, must be
direct and personal. In Franciso v. House of Representatives,53 this Court held that when
the proceeding involves the assertion of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view
of the transcendental issues raised in its petition which this Court needs to resolve in
order to avert a constitutional crisis. For it to be accorded standing on the ground of
transcendental importance, however, it must establish (1) the character of the funds (that
it is public) or other assets involved in the case, (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government, and (3) the lack of any party with a more direct and
specific interest in raising the questions being raised.54 The first and last determinants
not being present as no public funds or assets are involved and petitioners in G.R. Nos.
169777 and 169659 have direct and specific interests in the resolution of the controversy,
petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464
hampers its legislative agenda is vague and uncertain, and at best is only a "generalized
interest" which it shares with the rest of the political parties. Concrete injury, whether
actual or threatened, is that indispensable element of a dispute which serves in part to
cast it in a form traditionally capable of judicial resolution.55 In fine, PDP-Laban’s alleged
interest as a political party does not suffice to clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the executive
officials invited by the Senate to its hearings after the issuance of E.O. 464, particularly
those on the NorthRail project and the wiretapping controversy.
Respondents counter that there is no case or controversy, there being no showing that
President Arroyo has actually withheld her consent or prohibited the appearance of the
invited officials.56 These officials, they claim, merely communicated to the Senate that
they have not yet secured the consent of the President, not that the President prohibited
their attendance.57 Specifically with regard to the AFP officers who did not attend the
hearing on September 28, 2005, respondents claim that the instruction not to attend
without the President’s consent was based on its role as Commander-in-Chief of the
Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded
apprehension that the President will abuse its power of preventing the appearance of
officials before Congress, and that such apprehension is not sufficient for challenging
the validity of E.O. 464.
The Court finds respondents’ assertion that the President has not withheld her consent
or prohibited the appearance of the officials concerned immaterial in determining the
existence of an actual case or controversy insofar as E.O. 464 is concerned. For E.O.
464 does not require either a deliberate withholding of consent or an express prohibition
issuing from the President in order to bar officials from appearing before Congress.
As the implementation of the challenged order has already resulted in the absence of
officials invited to the hearings of petitioner Senate of the Philippines, it would make no
sense to wait for any further event before considering the present case ripe for
adjudication. Indeed, it would be sheer abandonment of duty if this Court would now
refrain from passing on the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before Congress,
deprives Congress of the information in the possession of these officials. To resolve the
question of whether such withholding of information violates the Constitution,
consideration of the general power of Congress to obtain information, otherwise known
as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the
Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in or affected by such
inquiries shall be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution
except that, in the latter, it vests the power of inquiry in the unicameral legislature
established therein – the Batasang Pambansa – and its committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v.
Nazareno,58 a case decided in 1950 under that Constitution, the Court already
recognized that the power of inquiry is inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase of the
Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who
was considered a leading witness in the controversy, was called to testify thereon by the
Senate. On account of his refusal to answer the questions of the senators on an
important point, he was, by resolution of the Senate, detained for contempt. Upholding
the Senate’s power to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing either House of
Congress with power to make investigations and exact testimony to the end that it may
exercise its legislative functions advisedly and effectively, such power is so far incidental
to the legislative function as to be implied. In other words, the power of inquiry – with
process to enforce it – is an essential and appropriate auxiliary to the legislative function.
A legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change; and where
the legislative body does not itself possess the requisite information – which is not
infrequently true – recourse must be had to others who do possess it. Experience has
shown that mere requests for such information are often unavailing, and also that
information which is volunteered is not always accurate or complete; so some means of
compulsion is essential to obtain what is needed.59 . . . (Emphasis and underscoring
supplied)
That this power of inquiry is broad enough to cover officials of the executive branch may
be deduced from the same case. The power of inquiry, the Court therein ruled, is
co-extensive with the power to legislate.60 The matters which may be a proper subject of
legislation and those which may be a proper subject of investigation are one. It follows
that the operation of government, being a legitimate subject for legislation, is a proper
subject for investigation.
Thus, the Court found that the Senate investigation of the government transaction
involved in Arnault was a proper exercise of the power of inquiry. Besides being related
to the expenditure of public funds of which Congress is the guardian, the transaction, the
Court held, "also involved government agencies created by Congress and officers
whose positions it is within the power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive branch, it
would be incongruous to hold that the power of inquiry does not extend to executive
officials who are the most familiar with and informed on executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on
the necessity of information in the legislative process. If the information possessed by
executive officials on the operation of their offices is necessary for wise legislation on
that subject, by parity of reasoning, Congress has the right to that information and the
power to compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy era," however,
the right of Congress to conduct inquiries in aid of legislation is, in theory, no less
susceptible to abuse than executive or judicial power. It may thus be subjected to judicial
review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the
Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself
might not properly be in aid of legislation, and thus beyond the constitutional power of
Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible
way for Congress to avoid such a result as occurred in Bengzon is to indicate in its
invitations to the public officials concerned, or to any person for that matter, the possible
needed statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room for speculation on the
part of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the
legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or House’s duly published rules of procedure, necessarily
implying the constitutional infirmity of an inquiry conducted without duly published rules
of procedure. Section 21 also mandates that the rights of persons appearing in or
affected by such inquiries be respected, an imposition that obligates Congress to adhere
to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by
the persons affected, even if they belong to the executive branch. Nonetheless, there
may be exceptional circumstances, none appearing to obtain at present, wherein a clear
pattern of abuse of the legislative power of inquiry might be established, resulting in
palpable violations of the rights guaranteed to members of the executive department
under the Bill of Rights. In such instances, depending on the particulars of each case,
attempts by the Executive Branch to forestall these abuses may be accorded judicial
sanction.
Even where the inquiry is in aid of legislation, there are still recognized exemptions to
the power of inquiry, which exemptions fall under the rubric of "executive privilege."
Since this term figures prominently in the challenged order, it being mentioned in its
provisions, its preambular clauses,62 and in its very title, a discussion of executive
privilege is crucial for determining the constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even
prior to the promulgation of the 1986 Constitution.63 Being of American origin, it is best
understood in light of how it has been defined and used in the legal literature of the
United States.
Schwartz defines executive privilege as "the power of the Government to withhold
information from the public, the courts, and the Congress."64 Similarly, Rozell defines it
as "the right of the President and high-level executive branch officers to withhold
information from Congress, the courts, and ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has
encompassed claims of varying kinds.67Tribe, in fact, comments that while it is
customary to employ the phrase "executive privilege," it may be more accurate to speak
of executive privileges "since presidential refusals to furnish information may be
actuated by any of at least three distinct kinds of considerations, and may be asserted,
with differing degrees of success, in the context of either judicial or legislative
investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S.
Presidents, beginning with Washington, on the ground that the information is of such
nature that its disclosure would subvert crucial military or diplomatic objectives. Another
variety is the informer’s privilege, or the privilege of the Government not to disclose the
identity of persons who furnish information of violations of law to officers charged with
the enforcement of that law. Finally, a generic privilege for internal deliberations has
been said to attach to intragovernmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. 68
Tribe’s comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information the confidentiality of which they felt was
crucial to fulfillment of the unique role and responsibilities of the executive branch of our
government. Courts ruled early that the executive had a right to withhold documents that
might reveal military or state secrets. The courts have also granted the executive a right
to withhold the identity of government informers in some circumstances and a qualified
right to withhold information related to pending investigations. x x x"69 (Emphasis and
underscoring supplied)
The entry in Black’s Law Dictionary on "executive privilege" is similarly instructive
regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers, exempts the
executive from disclosure requirements applicable to the ordinary citizen or organization
where such exemption is necessary to the discharge of highly important executive
responsibilities involved in maintaining governmental operations, and extends not only
to military and diplomatic secrets but also to documents integral to an appropriate
exercise of the executive’ domestic decisional and policy making functions, that is, those
documents reflecting the frank expression necessary in intra-governmental advisory and
deliberative communications.70 (Emphasis and underscoring supplied)
That a type of information is recognized as privileged does not, however, necessarily
mean that it would be considered privileged in all instances. For in determining the
validity of a claim of privilege, the question that must be asked is not only whether the
requested information falls within one of the traditional privileges, but also whether that
privilege should be honored in a given procedural setting.71
The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided
in 1974. In issue in that case was the validity of President Nixon’s claim of executive
privilege against a subpoena issued by a district court requiring the production of certain
tapes and documents relating to the Watergate investigations. The claim of privilege was
based on the President’s general interest in the confidentiality of his conversations and
correspondence. The U.S. Court held that while there is no explicit reference to a
privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the
extent that it relates to the effective discharge of a President’s powers. The Court,
nonetheless, rejected the President’s claim of privilege, ruling that the privilege must be
balanced against the public interest in the fair administration of criminal justice. Notably,
the Court was careful to clarify that it was not there addressing the issue of claims of
privilege in a civil litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress are
rare.73 Despite frequent assertion of the privilege to deny information to Congress,
beginning with President Washington’s refusal to turn over treaty negotiation records to
the House of Representatives, the U.S. Supreme Court has never adjudicated the
issue.74 However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case
decided earlier in the same year as Nixon, recognized the President’s privilege over his
conversations against a congressional subpoena.75 Anticipating the balancing approach
adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public
interest protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the Court
declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court in
Almonte v. Vasquez.77Almonte used the term in reference to the same privilege subject
of Nixon. It quoted the following portion of the Nixon decision which explains the basis
for the privilege:
"The expectation of a President to the confidentiality of his conversations and
correspondences, like the claim of confidentiality of judicial deliberations, for example,
has all the values to which we accord deference for the privacy of all citizens and, added
to those values, is the necessity for protection of the public interest in candid, objective,
and even blunt or harsh opinions in Presidential decision-making. A President and those
who assist him must be free to explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis
and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against the
therein petitioners. It did not involve, as expressly stated in the decision, the right of the
people to information.78 Nonetheless, the Court recognized that there are certain types
of information which the government may withhold from the public, thus acknowledging,
in substance if not in name, that executive privilege may be claimed against citizens’
demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law
holding that there is a "governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other national security matters."80 The
same case held that closed-door Cabinet meetings are also a recognized limitation on
the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to
information does not extend to matters recognized as "privileged information under the
separation of powers,"82 by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings. It also held that
information on military and diplomatic secrets and those affecting national security, and
information on investigations of crimes by law enforcement agencies before the
prosecution of the accused were exempted from the right to information.
From the above discussion on the meaning and scope of executive privilege, both in the
United States and in this jurisdiction, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is recognized only in
relation to certain types of information of a sensitive character. While executive privilege
is a constitutional concept, a claim thereof may be valid or not depending on the ground
invoked to justify it and the context in which it is made. Noticeably absent is any
recognition that executive officials are exempt from the duty to disclose information by
the mere fact of being executive officials. Indeed, the extraordinary character of the
exemptions indicates that the presumption inclines heavily against executive secrecy
and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by them to
secure the consent of the President prior to appearing before Congress. There are
significant differences between the two provisions, however, which constrain this Court
to discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3, require
a prior determination by any official whether they are covered by E.O. 464. The
President herself has, through the challenged order, made the determination that they
are. Further, unlike also Section 3, the coverage of department heads under Section 1 is
not made to depend on the department heads’ possession of any information which
might be covered by executive privilege. In fact, in marked contrast to Section 3 vis-à-vis
Section 2, there is no reference to executive privilege at all. Rather, the required prior
consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on
what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with the consent
of the President, or upon the request of either House, as the rules of each House shall
provide, appear before and be heard by such House on any matter pertaining to their
departments. Written questions shall be submitted to the President of the Senate or the
Speaker of the House of Representatives at least three days before their scheduled
appearance. Interpellations shall not be limited to written questions, but may cover
matters related thereto. When the security of the State or the public interest so requires
and the President so states in writing, the appearance shall be conducted in executive
session.
Determining the validity of Section 1 thus requires an examination of the meaning of
Section 22 of Article VI. Section 22 which provides for the question hour must be
interpreted vis-à-vis Section 21 which provides for the power of either House of
Congress to "conduct inquiries in aid of legislation." As the following excerpt of the
deliberations of the Constitutional Commission shows, the framers were aware that
these two provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the
Question Hour] yesterday, I noticed that members of the Cabinet cannot be compelled
anymore to appear before the House of Representatives or before the Senate. I have a
particular problem in this regard, Madam President, because in our experience in the
Regular Batasang Pambansa – as the Gentleman himself has experienced in the interim
Batasang Pambansa – one of the most competent inputs that we can put in our
committee deliberations, either in aid of legislation or in congressional investigations, is
the testimonies of Cabinet ministers. We usually invite them, but if they do not come and
it is a congressional investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he said that
the fact that the Cabinet ministers may refuse to come to the House of Representatives
or the Senate [when requested under Section 22] does not mean that they need not
come when they are invited or subpoenaed by the committee of either House when it
comes to inquiries in aid of legislation or congressional investigation. According to
Commissioner Suarez, that is allowed and their presence can be had under Section 21.
Does the gentleman confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to
what was originally the Question Hour, whereas, Section 21 would refer specifically to
inquiries in aid of legislation, under which anybody for that matter, may be summoned
and if he refuses, he can be held in contempt of the House.83 (Emphasis and
underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the question hour.
While attendance was meant to be discretionary in the question hour, it was compulsory
in inquiries in aid of legislation. The reference to Commissioner Suarez bears noting, he
being one of the proponents of the amendment to make the appearance of department
heads discretionary in the question hour.
So clearly was this distinction conveyed to the members of the Commission that the
Committee on Style, precisely in recognition of this distinction, later moved the provision
on question hour from its original position as Section 20 in the original draft down to
Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the
following exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We
now go, Mr. Presiding Officer, to the Article on Legislative and may I request the
chairperson of the Legislative Department, Commissioner Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question
Hour. I propose that instead of putting it as Section 31, it should follow Legislative
Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when we sequenced this but
we reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of
Congress in terms of its own lawmaking; whereas, a Question Hour is not actually a
power in terms of its own lawmaking power because in Legislative Inquiry, it is in aid of
legislation. And so we put Question Hour as Section 31. I hope Commissioner Davide
will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is
precisely as a complement to or a supplement of the Legislative Inquiry. The appearance
of the members of Cabinet would be very, very essential not only in the application of
check and balance but also, in effect, in aid of legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of
Commissioner Davide. In other words, we are accepting that and so this Section 31
would now become Section 22. Would it be, Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations, Commissioners Davide and
Maambong proceeded from the same assumption that these provisions pertained to two
different functions of the legislature. Both Commissioners understood that the power to
conduct inquiries in aid of legislation is different from the power to conduct inquiries
during the question hour. Commissioner Davide’s only concern was that the two
provisions on these distinct powers be placed closely together, they being
complementary to each other. Neither Commissioner considered them as identical
functions of Congress.
The foregoing opinion was not the two Commissioners’ alone. From the above-quoted
exchange, Commissioner Maambong’s committee – the Committee on Style – shared
the view that the two provisions reflected distinct functions of Congress. Commissioner
Davide, on the other hand, was speaking in his capacity as Chairman of the Committee
on the Legislative Department. His views may thus be presumed as representing that of
his Committee.
In the context of a parliamentary system of government, the "question hour" has a
definite meaning. It is a period of confrontation initiated by Parliament to hold the Prime
Minister and the other ministers accountable for their acts and the operation of the
government,85 corresponding to what is known in Britain as the question period. There
was a specific provision for a question hour in the 1973 Constitution86 which made the
appearance of ministers mandatory. The same perfectly conformed to the parliamentary
system established by that Constitution, where the ministers are also members of the
legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is the immediate
accountability of the Prime Minister and the Cabinet to the National Assembly. They shall
be responsible to the National Assembly for the program of government and shall
determine the guidelines of national policy. Unlike in the presidential system where the
tenure of office of all elected officials cannot be terminated before their term expired, the
Prime Minister and the Cabinet remain in office only as long as they enjoy the
confidence of the National Assembly. The moment this confidence is lost the Prime
Minister and the Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to conform more
fully to a system of separation of powers.88 To that extent, the question hour, as it is
presently understood in this jurisdiction, departs from the question period of the
parliamentary system. That department heads may not be required to appear in a
question hour does not, however, mean that the legislature is rendered powerless to
elicit information from them in all circumstances. In fact, in light of the absence of a
mandatory question period, the need to enforce Congress’ right to executive information
in the performance of its legislative function becomes more imperative. As Schwartz
observes:
Indeed, if the separation of powers has anything to tell us on the subject under
discussion, it is that the Congress has the right to obtain information from any source –
even from officials of departments and agencies in the executive branch. In the United
States there is, unlike the situation which prevails in a parliamentary system such as that
in Britain, a clear separation between the legislative and executive branches. It is this
very separation that makes the congressional right to obtain information from the
executive so essential, if the functions of the Congress as the elected representatives of
the people are adequately to be carried out. The absence of close rapport between the
legislative and executive branches in this country, comparable to those which exist
under a parliamentary system, and the nonexistence in the Congress of an institution
such as the British question period have perforce made reliance by the Congress upon
its right to obtain information from the executive essential, if it is intelligently to perform
its legislative tasks. Unless the Congress possesses the right to obtain executive
information, its power of oversight of administration in a system such as ours becomes a
power devoid of most of its practical content, since it depends for its effectiveness solely
upon information parceled out ex gratia by the executive.89 (Emphasis and underscoring
supplied)
Sections 21 and 22, therefore, while closely related and complementary to each other,
should not be considered as pertaining to the same power of Congress. One specifically
relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit
information that may be used for legislation, while the other pertains to the power to
conduct a question hour, the objective of which is to obtain information in pursuit of
Congress’ oversight function.
When Congress merely seeks to be informed on how department heads are
implementing the statutes which it has issued, its right to such information is not as
imperative as that of the President to whom, as Chief Executive, such department heads
must give a report of their performance as a matter of duty. In such instances, Section 22,
in keeping with the separation of powers, states that Congress may only request their
appearance. Nonetheless, when the inquiry in which Congress requires their
appearance is "in aid of legislation" under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory process only
to the extent that it is performed in pursuit of legislation. This is consistent with the intent
discerned from the deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive officials under
Section 21 and the lack of it under Section 22 find their basis in the principle of
separation of powers. While the executive branch is a co-equal branch of the legislature,
it cannot frustrate the power of Congress to legislate by refusing to comply with its
demands for information.
When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the
mere fact that they are department heads. Only one executive official may be exempted
from this power — the President on whom executive power is vested, hence, beyond the
reach of Congress except through the power of impeachment. It is based on her being
the highest official of the executive branch, and the due respect accorded to a co-equal
branch of government which is sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also exempt from this power of
inquiry. Unlike the Presidency, judicial power is vested in a collegial body; hence, each
member thereof is exempt on the basis not only of separation of powers but also on the
fiscal autonomy and the constitutional independence of the judiciary. This point is not in
dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral
argument upon interpellation of the Chief Justice.
Having established the proper interpretation of Section 22, Article VI of the Constitution,
the Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution
and the absence of any reference to inquiries in aid of legislation, must be construed as
limited in its application to appearances of department heads in the question hour
contemplated in the provision of said Section 22 of Article VI. The reading is dictated by
the basic rule of construction that issuances must be interpreted, as much as possible, in
a way that will render it constitutional.
The requirement then to secure presidential consent under Section 1, limited as it is only
to appearances in the question hour, is valid on its face. For under Section 22, Article VI
of the Constitution, the appearance of department heads in the question hour is
discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in inquiries
in aid of legislation. Congress is not bound in such instances to respect the refusal of the
department head to appear in such inquiry, unless a valid claim of privilege is
subsequently made, either by the President herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to
secure the consent of the President prior to appearing before either house of Congress.
The enumeration is broad. It covers all senior officials of executive departments, all
officers of the AFP and the PNP, and all senior national security officials who, in the
judgment of the heads of offices designated in the same section (i.e. department heads,
Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are
"covered by the executive privilege."
The enumeration also includes such other officers as may be determined by the
President. Given the title of Section 2 — "Nature, Scope and Coverage of Executive
Privilege" —, it is evident that under the rule of ejusdem generis, the determination by
the President under this provision is intended to be based on a similar finding of
coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive
privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege,
as discussed above, is properly invoked in relation to specific categories of information
and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and
coverage of executive privilege, the reference to persons being "covered by the
executive privilege" may be read as an abbreviated way of saying that the person is in
possession of information which is, in the judgment of the head of office concerned,
privileged as defined in Section 2(a). The Court shall thus proceed on the assumption
that this is the intention of the challenged order.
Upon a determination by the designated head of office or by the President that an official
is "covered by the executive privilege," such official is subjected to the requirement that
he first secure the consent of the President prior to appearing before Congress. This
requirement effectively bars the appearance of the official concerned unless the same is
permitted by the President. The proviso allowing the President to give its consent means
nothing more than that the President may reverse a prohibition which already exists by
virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head of
office, authorized by the President under E.O. 464, or by the President herself, that such
official is in possession of information that is covered by executive privilege. This
determination then becomes the basis for the official’s not showing up in the legislative
investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present,
such invocation must be construed as a declaration to Congress that the President, or a
head of office authorized by the President, has determined that the requested
information is privileged, and that the President has not reversed such determination.
Such declaration, however, even without mentioning the term "executive privilege,"
amounts to an implied claim that the information is being withheld by the executive
branch, by authority of the President, on the basis of executive privilege. Verily, there is
an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to
Senate President Drilon illustrates the implied nature of the claim of privilege authorized
by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole regarding
the Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at
10:00 a.m., please be informed that officials of the Executive Department invited to
appear at the meeting will not be able to attend the same without the consent of the
President, pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring
Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On
Executive Privilege And Respect For The Rights Of Public Officials Appearing In
Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other
Purposes". Said officials have not secured the required consent from the President.
(Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on which these
officials are being requested to be resource persons falls under the recognized grounds
of the privilege to justify their absence. Nor does it expressly state that in view of the lack
of consent from the President under E.O. 464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or not. The
letter assumes that the invited officials are covered by E.O. 464. As explained earlier,
however, to be covered by the order means that a determination has been made, by the
designated head of office or the President, that the invited official possesses information
that is covered by executive privilege. Thus, although it is not stated in the letter that
such determination has been made, the same must be deemed implied. Respecting the
statement that the invited officials have not secured the consent of the President, it only
means that the President has not reversed the standing prohibition against their
appearance before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive
branch, either through the President or the heads of offices authorized under E.O. 464,
has made a determination that the information required by the Senate is privileged, and
that, at the time of writing, there has been no contrary pronouncement from the
President. In fine, an implied claim of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of whether executive
privilege may be invoked against Congress, it is gathered from Chavez v. PEA that
certain information in the possession of the executive may validly be claimed as
privileged even against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is privileged
information rooted in the separation of powers. The information does not cover
Presidential conversations, correspondences, or discussions during closed-door
Cabinet meetings which, like internal-deliberations of the Supreme Court and other
collegiate courts, or executive sessions of either house of Congress, are recognized as
confidential. This kind of information cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential, Legislative
and Judicial power. This is not the situation in the instant case.91 (Emphasis and
underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact
that it sanctions claims of executive privilege. This Court must look further and assess
the claim of privilege authorized by the Order to determine whether it is valid.
While the validity of claims of privilege must be assessed on a case to case basis,
examining the ground invoked therefor and the particular circumstances surrounding it,
there is, in an implied claim of privilege, a defect that renders it invalid per se. By its very
nature, and as demonstrated by the letter of respondent Executive Secretary quoted
above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any
specific allegation of the basis thereof (e.g., whether the information demanded involves
military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a)
enumerates the types of information that are covered by the privilege under the
challenged order, Congress is left to speculate as to which among them is being referred
to by the executive. The enumeration is not even intended to be comprehensive, but a
mere statement of what is included in the phrase "confidential or classified information
between the President and the public officers covered by this executive order."
Certainly, Congress has the right to know why the executive considers the requested
information privileged. It does not suffice to merely declare that the President, or an
authorized head of office, has determined that it is so, and that the President has not
overturned that determination. Such declaration leaves Congress in the dark on how the
requested information could be classified as privileged. That the message is couched in
terms that, on first impression, do not seem like a claim of privilege only makes it more
pernicious. It threatens to make Congress doubly blind to the question of why the
executive branch is not providing it with the information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose information,
must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can neither be
claimed nor waived by a private party. It is not to be lightly invoked. There must be a
formal claim of privilege, lodged by the head of the department which has control over
the matter, after actual personal consideration by that officer. The court itself must
determine whether the circumstances are appropriate for the claim of privilege, and yet
do so without forcing a disclosure of the very thing the privilege is designed to protect.92
(Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege, there is no
way of determining whether it falls under one of the traditional privileges, or whether,
given the circumstances in which it is made, it should be respected.93 These, in
substance, were the same criteria in assessing the claim of privilege asserted against
the Ombudsman in Almonte v. Vasquez94 and, more in point, against a committee of the
Senate in Senate Select Committee on Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting from
disclosure impossible, thereby preventing the Court from balancing such harm against
plaintiffs’ needs to determine whether to override any claims of privilege.96
(Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this balancing
operation. In stating its objection to claimant’s interrogatories, government asserts, and
nothing more, that the disclosures sought by claimant would inhibit the free expression
of opinion that non-disclosure is designed to protect. The government has not shown –
nor even alleged – that those who evaluated claimant’s product were involved in internal
policymaking, generally, or in this particular instance. Privilege cannot be set up by an
unsupported claim. The facts upon which the privilege is based must be established. To
find these interrogatories objectionable, this Court would have to assume that the
evaluation and classification of claimant’s products was a matter of internal policy
formulation, an assumption in which this Court is unwilling to indulge sua sponte.98
(Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must
provide ‘precise and certain’ reasons for preserving the confidentiality of requested
information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation and
description of the documents within its scope as well as precise and certain reasons for
preserving their confidentiality. Without this specificity, it is impossible for a court to
analyze the claim short of disclosure of the very thing sought to be protected. As the
affidavit now stands, the Court has little more than its sua sponte speculation with which
to weigh the applicability of the claim. An improperly asserted claim of privilege is no
claim of privilege. Therefore, despite the fact that a claim was made by the proper
executive as Reynolds requires, the Court can not recognize the claim in the instant
case because it is legally insufficient to allow the Court to make a just and reasonable
determination as to its applicability. To recognize such a broad claim in which the
Defendant has given no precise or compelling reasons to shield these documents from
outside scrutiny, would make a farce of the whole procedure.101 (Emphasis and
underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less than a
claim of privilege clearly stating the grounds therefor. Apropos is the following ruling in
McPhaul v. U.S:102
We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is
highly relevant to these questions. For it is as true here as it was there, that ‘if (petitioner)
had legitimate reasons for failing to produce the records of the association, a decent
respect for the House of Representatives, by whose authority the subpoenas issued,
would have required that (he) state (his) reasons for noncompliance upon the return of
the writ. Such a statement would have given the Subcommittee an opportunity to avoid
the blocking of its inquiry by taking other appropriate steps to obtain the records. ‘To
deny the Committee the opportunity to consider the objection or remedy is in itself a
contempt of its authority and an obstruction of its processes. His failure to make any
such statement was "a patent evasion of the duty of one summoned to produce papers
before a congressional committee[, and] cannot be condoned." (Emphasis and
underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons for
the claim with such particularity as to compel disclosure of the information which the
privilege is meant to protect.103 A useful analogy in determining the requisite degree of
particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S.104
declares:
The witness is not exonerated from answering merely because he declares that in so
doing he would incriminate himself – his say-so does not of itself establish the hazard of
incrimination. It is for the court to say whether his silence is justified, and to require him
to answer if ‘it clearly appears to the court that he is mistaken.’ However, if the witness,
upon interposing his claim, were required to prove the hazard in the sense in which a
claim is usually required to be established in court, he would be compelled to surrender
the very protection which the privilege is designed to guarantee. To sustain the privilege,
it need only be evident from the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result." x x x
(Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus
invalid per se. It is not asserted. It is merely implied. Instead of providing precise and
certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement
that the President has not given her consent. It is woefully insufficient for Congress to
determine whether the withholding of information is justified under the circumstances of
each case. It severely frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines,
binding only on the heads of office mentioned in Section 2(b), on what is covered by
executive privilege. It does not purport to be conclusive on the other branches of
government. It may thus be construed as a mere expression of opinion by the President
regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged order the
alleged unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner
Senate of the Philippines, in particular, cites the case of the United States where, so it
claims, only the President can assert executive privilege to withhold information from
Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office
determines that a certain information is privileged, such determination is presumed to
bear the President’s authority and has the effect of prohibiting the official from appearing
before Congress, subject only to the express pronouncement of the President that it is
allowing the appearance of such official. These provisions thus allow the President to
authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the
privilege. Executive privilege, as already discussed, is recognized with respect to
information the confidential nature of which is crucial to the fulfillment of the unique role
and responsibilities of the executive branch,105 or in those instances where exemption
from disclosure is necessary to the discharge of highly important executive
responsibilities.106 The doctrine of executive privilege is thus premised on the fact that
certain informations must, as a matter of necessity, be kept confidential in pursuit of the
public interest. The privilege being, by definition, an exemption from the obligation to
disclose information, in this case to Congress, the necessity must be of such high
degree as to outweigh the public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit
to the President the power to invoke the privilege. She may of course authorize the
Executive Secretary to invoke the privilege on her behalf, in which case the Executive
Secretary must state that the authority is "By order of the President," which means that
he personally consulted with her. The privilege being an extraordinary power, it must be
wielded only by the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power. There is even
less reason to uphold such authorization in the instant case where the authorization is
not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on
this score.
It follows, therefore, that when an official is being summoned by Congress on a matter
which, in his own judgment, might be covered by executive privilege, he must be
afforded reasonable time to inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is necessary in order to provide the
President or the Executive Secretary with fair opportunity to consider whether the matter
indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time,
neither the President nor the Executive Secretary invokes the privilege, Congress is no
longer bound to respect the failure of the official to appear before Congress and may
then opt to avail of the necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to secure the
consent of the President under Section 3 of E.O. 464 is to ensure "respect for the rights
of public officials appearing in inquiries in aid of legislation." That such rights must
indeed be respected by Congress is an echo from Article VI Section 21 of the
Constitution mandating that "[t]he rights of persons appearing in or affected by such
inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is essentially an
authorization for implied claims of executive privilege, for which reason it must be
invalidated. That such authorization is partly motivated by the need to ensure respect for
such officials does not change the infirm nature of the authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance of
executive officials in the hearings conducted by it, and not with the demands of citizens
for information pursuant to their right to information on matters of public concern.
Petitioners are not amiss in claiming, however, that what is involved in the present
controversy is not merely the legislative power of inquiry, but the right of the people to
information.
There are, it bears noting, clear distinctions between the right of Congress to information
which underlies the power of inquiry and the right of the people to information on matters
of public concern. For one, the demand of a citizen for the production of documents
pursuant to his right to information does not have the same obligatory force as a
subpoena duces tecum issued by Congress. Neither does the right to information grant
a citizen the power to exact testimony from government officials. These powers belong
only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people, it does not
follow, except in a highly qualified sense, that in every exercise of its power of inquiry,
the people are exercising their right to information.
To the extent that investigations in aid of legislation are generally conducted in public,
however, any executive issuance tending to unduly limit disclosures of information in
such investigations necessarily deprives the people of information which, being
presumed to be in aid of legislation, is presumed to be a matter of public concern. The
citizens are thereby denied access to information which they can use in formulating their
own opinions on the matter before Congress — opinions which they can then
communicate to their representatives and other government officials through the various
legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to the
people’s will. Yet, this open dialogue can be effective only to the extent that the citizenry
is informed and thus able to formulate its will intelligently. Only when the participants in
the discussion are aware of the issues and have access to information relating thereto
can such bear fruit.107(Emphasis and underscoring supplied)
The impairment of the right of the people to information as a consequence of E.O. 464 is,
therefore, in the sense explained above, just as direct as its violation of the legislature’s
power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not follow that the
same is exempt from the need for publication. On the need for publishing even those
statutes that do not directly apply to people in general, Tañada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of general application, for
strictly speaking all laws relate to the people in general albeit there are some that do not
apply to them directly. An example is a law granting citizenship to a particular individual,
like a relative of President Marcos who was decreed instant naturalization. It surely
cannot be said that such a law does not affect the public although it unquestionably does
not apply directly to all the people. The subject of such law is a matter of public interest
which any member of the body politic may question in the political forums or, if he is a
proper party, even in courts of justice.108 (Emphasis and underscoring supplied)
Although the above statement was made in reference to statutes, logic dictates that the
challenged order must be covered by the publication requirement. As explained above,
E.O. 464 has a direct effect on the right of the people to information on matters of public
concern. It is, therefore, a matter of public interest which members of the body politic
may question before this Court. Due process thus requires that the people should have
been apprised of this issuance before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch whenever it
is sought in aid of legislation. If the executive branch withholds such information on the
ground that it is privileged, it must so assert it and state the reason therefor and why it
must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right to do so
and/or proffering its reasons therefor. By the mere expedient of invoking said provisions,
the power of Congress to conduct inquiries in aid of legislation is frustrated. That is
impermissible. For
[w]hat republican theory did accomplish…was to reverse the old presumption in favor of
secrecy, based on the divine right of kings and nobles, and replace it with a presumption
in favor of publicity, based on the doctrine of popular sovereignty. (Underscoring
supplied)109
Resort to any means then by which officials of the executive branch could refuse to
divulge information cannot be presumed valid. Otherwise, we shall not have merely
nullified the power of our legislature to inquire into the operations of government, but we
shall have given up something of much greater value – our right as a people to take part
in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive
Order No. 464 (series of 2005), "Ensuring Observance of the Principle of Separation of
Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries
in Aid of Legislation Under the Constitution, and For Other Purposes," are declared
VOID. Sections 1 and 2(a) are, however, VALID.
SO ORDERED.
G.R. No. 132988 July 19, 2000
AQUILINO Q. PIMENTEL JR., petitioner,
vs.
Hon. ALEXANDER AGUIRRE in his capacity as Executive Secretary, Hon. EMILIA
BONCODIN in her capacity as Secretary of the Department of Budget and
Management, respondents.
ROBERTO PAGDANGANAN, intervenor.
DECISION
PANGANIBAN, J.:
The Constitution vests the President with the power of supervision, not control, over
local government units (LGUs). Such power enables him to see to it that LGUs and their
officials execute their tasks in accordance with law. While he may issue advisories and
seek their cooperation in solving economic difficulties, he cannot prevent them from
performing their tasks and using available resources to achieve their goals. He may not
withhold or alter any authority or power given them by the law. Thus, the withholding of a
portion of internal revenue allotments legally due them cannot be directed by
administrative fiat.
The Case
Before us is an original Petition for Certiorari and Prohibition seeking (1) to annul Section
1 of Administrative Order (AO) No. 372, insofar as it requires local government units to
reduce their expenditures by 25 percent of their authorized regular appropriations for
non-personal services; and (2) to enjoin respondents from implementing Section 4 of the
Order, which withholds a portion of their internal revenue allotments.
On November 17, 1998, Roberto Pagdanganan, through Counsel Alberto C. Agra, filed a
Motion for Intervention/Motion to Admit Petition for Intervention,1 attaching thereto his
Petition in Intervention2 joining petitioner in the reliefs sought. At the time, intervenor was
the provincial governor of Bulacan, national president of the League of Provinces of the
Philippines and chairman of the League of Leagues of Local Governments. In a
Resolution dated December 15, 1998, the Court noted said Motion and Petition.
The Facts and the Arguments
On December 27, 1997, the President of the Philippines issued AO 372. Its full text, with
emphasis on the assailed provisions, is as follows:
"ADMINISTRATIVE ORDER NO. 372
ADOPTION OF ECONOMY MEASURES IN GOVERNMENT FOR FY 1998
WHEREAS, the current economic difficulties brought about by the peso depreciation
requires continued prudence in government fiscal management to maintain economic
stability and sustain the country's growth momentum;
WHEREAS, it is imperative that all government agencies adopt cash management
measures to match expenditures with available resources;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines,
by virtue of the powers vested in me by the Constitution, do hereby order and direct:
SECTION 1. All government departments and agencies, including state
universities and colleges, government-owned and controlled corporations and
local governments units will identify and implement measures in FY 1998 that will
reduce total expenditures for the year by at least 25% of authorized regular
appropriations for non-personal services items, along the following suggested
areas:
1. Continued implementation of the streamlining policy on organization and staffing
by deferring action on the following:
a. Operationalization of new agencies;
b. Expansion of organizational units and/or creation of positions;
c. Filling of positions; and
d. Hiring of additional/new consultants, contractual and casual personnel,
regardless of funding source.
2. Suspension of the following activities:
a. Implementation of new capital/infrastructure projects, except those which
have already been contracted out;
b. Acquisition of new equipment and motor vehicles;
c. All foreign travels of government personnel, except those associated with
scholarships and trainings funded by grants;
d. Attendance in conferences abroad where the cost is charged to the
government except those clearly essential to Philippine commitments in the
international field as may be determined by the Cabinet;
e. Conduct of trainings/workshops/seminars, except those conducted by
government training institutions and agencies in the performance of their
regular functions and those that are funded by grants;
f. Conduct of cultural and social celebrations and sports activities, except
those associated with the Philippine Centennial celebration and those
involving regular competitions/events;
g. Grant of honoraria, except in cases where it constitutes the only source of
compensation from government received by the person concerned;
h. Publications, media advertisements and related items, except those
required by law or those already being undertaken on a regular basis;
i. Grant of new/additional benefits to employees, except those expressly and
specifically authorized by law; and
j. Donations, contributions, grants and gifts, except those given by institutions
to victims of calamities.
3. Suspension of all tax expenditure subsidies to all GOCCs and LGUs
4. Reduction in the volume of consumption of fuel, water, office supplies, electricity
and other utilities
5. Deferment of projects that are encountering significant implementation problems
6. Suspension of all realignment of funds and the use of savings and reserves
SECTION 2. Agencies are given the flexibility to identify the specific sources of
cost-savings, provided the 25% minimum savings under Section 1 is complied with.
SECTION 3. A report on the estimated savings generated from these measures shall be
submitted to the Office of the President, through the Department of Budget and
Management, on a quarterly basis using the attached format.
SECTION 4. Pending the assessment and evaluation by the Development Budget
Coordinating Committee of the emerging fiscal situation, the amount equivalent to
10% of the internal revenue allotment to local government units shall be withheld.
SECTION 5. The Development Budget Coordination Committee shall conduct a monthly
review of the fiscal position of the National Government and if necessary, shall
recommend to the President the imposition of additional reserves or the lifting of
previously imposed reserves.
SECTION 6. This Administrative Order shall take effect January 1, 1998 and shall
remain valid for the entire year unless otherwise lifted.
DONE in the City of Manila, this 27th day of December, in the year of our Lord, nineteen
hundred and ninety-seven."
Subsequently, on December 10, 1998, President Joseph E. Estrada issued AO 43,
amending Section 4 of AO 372, by reducing to five percent (5%) the amount of internal
revenue allotment (IRA) to be withheld from the LGUs.
Petitioner contends that the President, in issuing AO 372, was in effect exercising the
power of control over LGUs. The Constitution vests in the President, however, only the
power of general supervision over LGUs, consistent with the principle of local autonomy.
Petitioner further argues that the directive to withhold ten percent (10%) of their IRA is in
contravention of Section 286 of the Local Government Code and of Section 6, Article X
of the Constitution, providing for the automatic release to each of these units its share in
the national internal revenue.
The solicitor general, on behalf of the respondents, claims on the other hand that AO
372 was issued to alleviate the "economic difficulties brought about by the peso
devaluation" and constituted merely an exercise of the President's power of supervision
over LGUs. It allegedly does not violate local fiscal autonomy, because it merely directs
local governments to identify measures that will reduce their total expenditures for
non-personal services by at least 25 percent. Likewise, the withholding of 10 percent of
the LGUs’ IRA does not violate the statutory prohibition on the imposition of any lien or
holdback on their revenue shares, because such withholding is "temporary in nature
pending the assessment and evaluation by the Development Coordination Committee of
the emerging fiscal situation."
The Issues
The Petition3 submits the following issues for the Court's resolution:
"A. Whether or not the president committed grave abuse of discretion [in] ordering all
LGUS to adopt a 25% cost reduction program in violation of the LGU[']S fiscal autonomy
"B. Whether or not the president committed grave abuse of discretion in ordering the
withholding of 10% of the LGU[']S IRA"
In sum, the main issue is whether (a) Section 1 of AO 372, insofar as it "directs" LGUs to
reduce their expenditures by 25 percent; and (b) Section 4 of the same issuance, which
withholds 10 percent of their internal revenue allotments, are valid exercises of the
President's power of general supervision over local governments.
Additionally, the Court deliberated on the question whether petitioner had the locus
standi to bring this suit, despite respondents' failure to raise the issue.4 However, the
intervention of Roberto Pagdanganan has rendered academic any further discussion on
this matter.
The Court's Ruling
The Petition is partly meritorious.
Main Issue:
Validity of AO 372
Insofar as LGUs Are Concerned
Before resolving the main issue, we deem it important and appropriate to define certain
crucial concepts: (1) the scope of the President's power of general supervision over local
governments and (2) the extent of the local governments' autonomy.
Scope of President's Power of Supervision Over LGUs
Section 4 of Article X of the Constitution confines the President's power over local
governments to one of general supervision. It reads as follows:
"Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. x x x"
This provision has been interpreted to exclude the power of control. In Mondano v.
Silvosa,5 the Court contrasted the President's power of supervision over local
government officials with that of his power of control over executive officials of the
national government. It was emphasized that the two terms -- supervision and control --
differed in meaning and extent. The Court distinguished them as follows:
"x x x In administrative law, supervision means overseeing or the power or authority of
an officer to see that subordinate officers perform their duties. If the latter fail or neglect
to fulfill them, the former may take such action or step as prescribed by law to make
them perform their duties. Control, on the other hand, means the power of an officer to
alter or modify or nullify or set aside what a subordinate officer ha[s] done in the
performance of his duties and to substitute the judgment of the former for that of the
latter."6
In Taule v. Santos,7 we further stated that the Chief Executive wielded no more authority
than that of checking whether local governments or their officials were performing their
duties as provided by the fundamental law and by statutes. He cannot interfere with local
governments, so long as they act within the scope of their authority. "Supervisory power,
when contrasted with control, is the power of mere oversight over an inferior body; it
does not include any restraining authority over such body,"8 we said.
In a more recent case, Drilon v. Lim,9 the difference between control and supervision
was further delineated. Officers in control lay down the rules in the performance or
accomplishment of an act. If these rules are not followed, they may, in their discretion,
order the act undone or redone by their subordinates or even decide to do it themselves.
On the other hand, supervision does not cover such authority. Supervising officials
merely see to it that the rules are followed, but they themselves do not lay down such
rules, nor do they have the discretion to modify or replace them. If the rules are not
observed, they may order the work done or redone, but only to conform to such rules.
They may not prescribe their own manner of execution of the act. They have no
discretion on this matter except to see to it that the rules are followed.
Under our present system of government, executive power is vested in the President.10
The members of the Cabinet and other executive officials are merely alter egos. As such,
they are subject to the power of control of the President, at whose will and behest they
can be removed from office; or their actions and decisions changed, suspended or
reversed.11 In contrast, the heads of political subdivisions are elected by the people.
Their sovereign powers emanate from the electorate, to whom they are directly
accountable. By constitutional fiat, they are subject to the President’s supervision only,
not control, so long as their acts are exercised within the sphere of their legitimate
powers. By the same token, the President may not withhold or alter any authority or
power given them by the Constitution and the law.
Extent of Local Autonomy
Hand in hand with the constitutional restraint on the President's power over local
governments is the state policy of ensuring local autonomy.12
In Ganzon v. Court of Appeals,13 we said that local autonomy signified "a more
responsive and accountable local government structure instituted through a system of
decentralization." The grant of autonomy is intended to "break up the monopoly of the
national government over the affairs of local governments, x x x not x x x to end the
relation of partnership and interdependence between the central administration and
local government units x x x." Paradoxically, local governments are still subject to
regulation, however limited, for the purpose of enhancing self-government.14
Decentralization simply means the devolution of national administration, not power, to
local governments. Local officials remain accountable to the central government as the
law may provide.15 The difference between decentralization of administration and that of
power was explained in detail in Limbona v. Mangelin16 as follows:
"Now, autonomy is either decentralization of administration or decentralization of power.
There is decentralization of administration when the central government delegates
administrative powers to political subdivisions in order to broaden the base of
government power and in the process to make local governments 'more responsive and
accountable,'17 and 'ensure their fullest development as self-reliant communities and
make them more effective partners in the pursuit of national development and social
progress.'18 At the same time, it relieves the central government of the burden of
managing local affairs and enables it to concentrate on national concerns. The President
exercises 'general supervision'19 over them, but only to 'ensure that local affairs are
administered according to law.'20 He has no control over their acts in the sense that he
can substitute their judgments with his own.21
Decentralization of power, on the other hand, involves an abdication of political power in
the favor of local government units declared to be autonomous. In that case, the
autonomous government is free to chart its own destiny and shape its future with
minimum intervention from central authorities. According to a constitutional author,
decentralization of power amounts to 'self-immolation,' since in that event, the
autonomous government becomes accountable not to the central authorities but to its
constituency."22
Under the Philippine concept of local autonomy, the national government has not
completely relinquished all its powers over local governments, including autonomous
regions. Only administrative powers over local affairs are delegated to political
subdivisions. The purpose of the delegation is to make governance more directly
responsive and effective at the local levels. In turn, economic, political and social
development at the smaller political units are expected to propel social and economic
growth and development. But to enable the country to develop as a whole, the programs
and policies effected locally must be integrated and coordinated towards a common
national goal. Thus, policy-setting for the entire country still lies in the President and
Congress. As we stated in Magtajas v. Pryce Properties Corp., Inc., municipal
governments are still agents of the national government.23
The Nature of AO 372
Consistent with the foregoing jurisprudential precepts, let us now look into the nature of
AO 372. As its preambular clauses declare, the Order was a "cash management
measure" adopted by the government "to match expenditures with available resources,"
which were presumably depleted at the time due to "economic difficulties brought about
by the peso depreciation." Because of a looming financial crisis, the President deemed it
necessary to "direct all government agencies, state universities and colleges,
government-owned and controlled corporations as well as local governments to reduce
their total expenditures by at least 25 percent along suggested areas mentioned in AO
372.
Under existing law, local government units, in addition to having administrative
autonomy in the exercise of their functions, enjoy fiscal autonomy as well. Fiscal
autonomy means that local governments have the power to create their own sources of
revenue in addition to their equitable share in the national taxes released by the national
government, as well as the power to allocate their resources in accordance with their
own priorities. It extends to the preparation of their budgets, and local officials in turn
have to work within the constraints thereof. They are not formulated at the national level
and imposed on local governments, whether they are relevant to local needs and
resources or not. Hence, the necessity of a balancing of viewpoints and the
harmonization of proposals from both local and national officials,24 who in any case are
partners in the attainment of national goals.
Local fiscal autonomy does not however rule out any manner of national government
intervention by way of supervision, in order to ensure that local programs, fiscal and
otherwise, are consistent with national goals. Significantly, the President, by
constitutional fiat, is the head of the economic and planning agency of the government,25
primarily responsible for formulating and implementing continuing, coordinated and
integrated social and economic policies, plans and programs26 for the entire country.
However, under the Constitution, the formulation and the implementation of such
policies and programs are subject to "consultations with the appropriate public agencies,
various private sectors, and local government units." The President cannot do so
unilaterally.
Consequently, the Local Government Code provides:27
"x x x [I]n the event the national government incurs an unmanaged public sector deficit,
the President of the Philippines is hereby authorized, upon the recommendation of [the]
Secretary of Finance, Secretary of the Interior and Local Government and Secretary of
Budget and Management, and subject to consultation with the presiding officers of both
Houses of Congress and the presidents of the liga, to make the necessary adjustments
in the internal revenue allotment of local government units but in no case shall the
allotment be less than thirty percent (30%) of the collection of national internal revenue
taxes of the third fiscal year preceding the current fiscal year x x x."
There are therefore several requisites before the President may interfere in local fiscal
matters: (1) an unmanaged public sector deficit of the national government; (2)
consultations with the presiding officers of the Senate and the House of Representatives
and the presidents of the various local leagues; and (3) the corresponding
recommendation of the secretaries of the Department of Finance, Interior and Local
Government, and Budget and Management. Furthermore, any adjustment in the
allotment shall in no case be less than thirty percent (30%) of the collection of national
internal revenue taxes of the third fiscal year preceding the current one.
Petitioner points out that respondents failed to comply with these requisites before the
issuance and the implementation of AO 372. At the very least, they did not even try to
show that the national government was suffering from an unmanageable public sector
deficit. Neither did they claim having conducted consultations with the different leagues
of local governments. Without these requisites, the President has no authority to adjust,
much less to reduce, unilaterally the LGU's internal revenue allotment.
The solicitor general insists, however, that AO 372 is merely directory and has been
issued by the President consistent with his power of supervision over local governments.
It is intended only to advise all government agencies and instrumentalities to undertake
cost-reduction measures that will help maintain economic stability in the country, which
is facing economic difficulties. Besides, it does not contain any sanction in case of
noncompliance. Being merely an advisory, therefore, Section 1 of AO 372 is well within
the powers of the President. Since it is not a mandatory imposition, the directive cannot
be characterized as an exercise of the power of control.
While the wordings of Section 1 of AO 372 have a rather commanding tone, and while
we agree with petitioner that the requirements of Section 284 of the Local Government
Code have not been satisfied, we are prepared to accept the solicitor general's
assurance that the directive to "identify and implement measures x x x that will reduce
total expenditures x x x by at least 25% of authorized regular appropriation" is merely
advisory in character, and does not constitute a mandatory or binding order that
interferes with local autonomy. The language used, while authoritative, does not amount
to a command that emanates from a boss to a subaltern.
Rather, the provision is merely an advisory to prevail upon local executives to recognize
the need for fiscal restraint in a period of economic difficulty. Indeed, all concerned would
do well to heed the President's call to unity, solidarity and teamwork to help alleviate the
crisis. It is understood, however, that no legal sanction may be imposed upon LGUs and
their officials who do not follow such advice. It is in this light that we sustain the solicitor
general's contention in regard to Section 1.
Withholding a Part of LGUs' IRA
Section 4 of AO 372 cannot, however, be upheld. A basic feature of local fiscal autonomy
is the automatic release of the shares of LGUs in the national internal revenue. This is
mandated by no less than the Constitution.28 The Local Government Code29 specifies
further that the release shall be made directly to the LGU concerned within five (5) days
after every quarter of the year and "shall not be subject to any lien or holdback that may
be imposed by the national government for whatever purpose."30 As a rule, the term
"shall" is a word of command that must be given a compulsory meaning.31 The provision
is, therefore, imperative.
Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10
percent of the LGUs' IRA "pending the assessment and evaluation by the Development
Budget Coordinating Committee of the emerging fiscal situation" in the country. Such
withholding clearly contravenes the Constitution and the law. Although temporary, it is
equivalent to a holdback, which means "something held back or withheld, often
temporarily."32Hence, the "temporary" nature of the retention by the national government
does not matter. Any retention is prohibited.
In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of
national crisis, Section 4 thereof has no color of validity at all. The latter provision
effectively encroaches on the fiscal autonomy of local governments. Concededly, the
President was well-intentioned in issuing his Order to withhold the LGUs’ IRA, but the
rule of law requires that even the best intentions must be carried out within the
parameters of the Constitution and the law. Verily, laudable purposes must be carried
out by legal methods.
Refutation of Justice Kapunan's Dissent
Mr. Justice Santiago M. Kapunan dissents from our Decision on the grounds that,
allegedly, (1) the Petition is premature; (2) AO 372 falls within the powers of the
President as chief fiscal officer; and (3) the withholding of the LGUs’ IRA is implied in the
President's authority to adjust it in case of an unmanageable public sector deficit.
First, on prematurity. According to the Dissent, when "the conduct has not yet occurred
and the challenged construction has not yet been adopted by the agency charged with
administering the administrative order, the determination of the scope and
constitutionality of the executive action in advance of its immediate adverse effect
involves too remote and abstract an inquiry for the proper exercise of judicial function."
This is a rather novel theory -- that people should await the implementing evil to befall on
them before they can question acts that are illegal or unconstitutional. Be it remembered
that the real issue here is whether the Constitution and the law are contravened by
Section 4 of AO 372, not whether they are violated by the acts implementing it. In the
unanimous en banc case Tañada v. Angara,33 this Court held that when an act of the
legislative department is seriously alleged to have infringed the Constitution, settling the
controversy becomes the duty of this Court. By the mere enactment of the questioned
law or the approval of the challenged action, the dispute is said to have ripened into a
judicial controversy even without any other overt act. Indeed, even a singular violation of
the Constitution and/or the law is enough to awaken judicial duty. Said the Court:
"In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of
the legislative branch is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the dispute. 'The question
thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that
the supremacy of the Constitution is upheld.'34 Once a 'controversy as to the application
or interpretation of a constitutional provision is raised before this Court x x x , it becomes
a legal issue which the Court is bound by constitutional mandate to decide.'35
xxx xxx xxx
"As this Court has repeatedly and firmly emphasized in many cases,36 it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in
matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government."
In the same vein, the Court also held in Tatad v. Secretary of the Department of
Energy:37
"x x x Judicial power includes not only the duty of the courts to settle actual
controversies involving rights which are legally demandable and enforceable, but also
the duty to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. The courts, as guardians of the Constitution, have the inherent authority to
determine whether a statute enacted by the legislature transcends the limit imposed by
the fundamental law. Where the statute violates the Constitution, it is not only the right
but the duty of the judiciary to declare such act unconstitutional and void."
By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws,
as in the present case, settling the dispute becomes the duty and the responsibility of
the courts.
Besides, the issue that the Petition is premature has not been raised by the parties;
hence it is deemed waived. Considerations of due process really prevents its use
against a party that has not been given sufficient notice of its presentation, and thus has
not been given the opportunity to refute it.38
Second, on the President's power as chief fiscal officer of the country. Justice Kapunan
posits that Section 4 of AO 372 conforms with the President's role as chief fiscal officer,
who allegedly "is clothed by law with certain powers to ensure the observance of
safeguards and auditing requirements, as well as the legal prerequisites in the release
and use of IRAs, taking into account the constitutional and statutory mandates."39 He
cites instances when the President may lawfully intervene in the fiscal affairs of LGUs.
Precisely, such powers referred to in the Dissent have specifically been authorized by
law and have not been challenged as violative of the Constitution. On the other hand,
Section 4 of AO 372, as explained earlier, contravenes explicit provisions of the Local
Government Code (LGC) and the Constitution. In other words, the acts alluded to in the
Dissent are indeed authorized by law; but, quite the opposite, Section 4 of AO 372 is
bereft of any legal or constitutional basis.
Third, on the President's authority to adjust the IRA of LGUs in case of an
unmanageable public sector deficit. It must be emphasized that in striking down Section
4 of AO 372, this Court is not ruling out any form of reduction in the IRAs of LGUs.
Indeed, as the President may make necessary adjustments in case of an unmanageable
public sector deficit, as stated in the main part of this Decision, and in line with Section
284 of the LGC, which Justice Kapunan cites. He, however, merely glances over a
specific requirement in the same provision -- that such reduction is subject to
consultation with the presiding officers of both Houses of Congress and, more
importantly, with the presidents of the leagues of local governments.
Notably, Justice Kapunan recognizes the need for "interaction between the national
government and the LGUs at the planning level," in order to ensure that "local
development plans x x x hew to national policies and standards." The problem is that no
such interaction or consultation was ever held prior to the issuance of AO 372. This is
why the petitioner and the intervenor (who was a provincial governor and at the same
time president of the League of Provinces of the Philippines and chairman of the League
of Leagues of Local Governments) have protested and instituted this action. Significantly,
respondents do not deny the lack of consultation.
In addition, Justice Kapunan cites Section 28740 of the LGC as impliedly authorizing the
President to withhold the IRA of an LGU, pending its compliance with certain
requirements. Even a cursory reading of the provision reveals that it is totally
inapplicable to the issue at bar. It directs LGUs to appropriate in their annual budgets 20
percent of their respective IRAs for development projects. It speaks of no positive power
granted the President to priorly withhold any amount. Not at all.
WHEREFORE, the Petition is GRANTED. Respondents and their successors are
hereby permanently PROHIBITEDfrom implementing Administrative Order Nos. 372 and
43, respectively dated December 27, 1997 and December 10, 1998, insofar as local
government units are concerned.
SO ORDERED.
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS
SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own
behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY.
LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN
and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the
present and duly-appointed Presidential Adviser on the Peace Process (OPAPP)
or the so-called Office of the Presidential Adviser on the Peace Process,
respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L.
LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as resident of
the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep.
ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH
ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and
HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace
Process,respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ,
petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY.
LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN;
GEN. HERMOGENES ESPERON, JR., in his capacity as the present and duly
appointed Presidential Adviser on the Peace Process; and/or SEC. EDUARDO
ERMITA, in his capacity as Executive Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented
by HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON.
FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of the
Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON,
Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS,
Congressman, 3rd Congressional District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH
FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO
M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO
C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and
HON. HERMOGENES ESPERON, in his capacity as the Presidential Adviser of
Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III,
petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, and
the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL,
represented by its Chairman MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N.
DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR
CHERRYLYN P. SANTOS-AKBAR,petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T.
MANGUDADATU, in his capacity as Provincial Governor and a resident of the
Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples
in Mindanao Not Belonging to the MILF, petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C.
ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of Palawan,
petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF),
respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD),
respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process.While the facts surrounding this controversy center on the
armed conflict in Mindanao between the government and the Moro Islamic Liberation
Front (MILF), the legal issue involved has a bearing on all areas in the country where
there has been a long-standing armed conflict. Yet again, the Court is tasked to perform
a delicate balancing act. It must uncompromisingly delineate the bounds within which
the President may lawfully exercise her discretion, but it must do so in strict adherence
to the Constitution, lest its ruling unduly restricts the freedom of action vested by that
same Constitution in the Chief Executive precisely to enable her to pursue the peace
process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the
MILF, through the Chairpersons of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur,
Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National Liberation
Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away from an Islamic basis
towards Marxist-Maoist orientations.1
The signing of the MOA-AD between the GRP and the MILF was not to materialize,
however, for upon motion of petitioners, specifically those who filed their cases before
the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order
enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of
several prior agreements between the two parties beginning in 1996, when the
GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace
Panels signed the Agreement on General Cessation of Hostilities. The following year,
they signed the General Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by stating
that the same contained, among others, the commitment of the parties to pursue peace
negotiations, protect and respect human rights, negotiate with sincerity in the resolution
and pacific settlement of the conflict, and refrain from the use of threat or force to attain
undue advantage while the peace negotiations on the substantive agenda are
on-going.2
Early on, however, it was evident that there was not going to be any smooth sailing in the
GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked
a number of municipalities in Central Mindanao and, in March 2000, it took control of the
town hall of Kauswagan, Lanao del Norte.3 In response, then President Joseph Estrada
declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive against
the MILF was suspended and the government sought a resumption of the peace talks.
The MILF, according to a leading MILF member, initially responded with deep
reservation, but when President Arroyo asked the Government of Malaysia through
Prime Minister Mahathir Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee to seriously discuss the
matter and, eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by
the Malaysian government, the parties signing on the same date the Agreement on the
General Framework for the Resumption of Peace Talks Between the GRP and the MILF.
The MILF thereafter suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22,
2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) containing the basic principles and agenda on the following aspects of
the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect.
With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001
simply agreed "that the same be discussed further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001
which ended with the signing of the Implementing Guidelines on the Security Aspect of
the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was
followed by the Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002
at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he
was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF.
Murad's position as chief peace negotiator was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as
mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever embodied in
an instrument - the MOA-AD which is assailed principally by the present petitions
bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7
and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol
filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer
for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.9
Invoking the right to information on matters of public concern, petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the
MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the MOA-AD and the holding of a public
consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat,
Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar
injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be
excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in
the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order
commanding and directing public respondents and their agents to cease and desist from
formally signing the MOA-AD.13 The Court also required the Solicitor General to submit
to the Court and petitioners the official copy of the final draft of the MOA-AD,14 to which
she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief,
docketed as G.R. No. 183893, praying that respondents be enjoined from signing the
MOA-AD or, if the same had already been signed, from implementing the same, and that
the MOA-AD be declared unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor
Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18
of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a
petition for Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They
pray, inter alia, that the MOA-AD be declared null and void and without operative effect,
and that respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a
petition for Prohibition,20docketed as G.R. No. 183962, praying for a judgment
prohibiting and permanently enjoining respondents from formally signing and executing
the MOA-AD and or any other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal. Petitioners herein
additionally implead as respondent the MILF Peace Negotiating Panel represented by its
Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel
A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of
Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22 and Gov.
Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,23 Ruy Elias
Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino
Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez,
Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The
Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their respective
Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions.
Respondents filed Comments on the petitions, while some of petitioners submitted their
respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to
address the issues hurled against it, and thus moved to dismiss the cases. In the
succeeding exchange of pleadings, respondents' motion was met with vigorous
opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the
following principal issues:
 1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the disclosure of
official copies of the final draft of the Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units is
concerned, if it is considered that consultation has become fait accompli with
the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace Panel
committed grave abuse of discretion amounting to lack or excess of jurisdiction
when it negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on matters of
public concern (1987 Constitution, Article III, Sec. 7) under a state policy of full
disclosure of all its transactions involving public interest (1987 Constitution, Article
II, Sec. 28) including public consultation under Republic Act No. 7160 (LOCAL
GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines
would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not recognized
by law;
b) to revise or amend the Constitution and existing laws to conform to the
MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front
for ancestral domain in violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) &
Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte
in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any prior valid
commitments of the Government of the Republic of the Philippines.24
The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of
the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five
petitions and six petitions-in-intervention against the MOA-AD, as well as the two
comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the
MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four
earlier agreements between the GRP and MILF, but also two agreements between the
GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the
Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights
Act (IPRA),26 and several international law instruments - the ILO Convention No. 169
Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the
UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among
others.
The MOA-AD includes as a final TOR the generic category of "compact rights
entrenchment emanating from the regime of dar-ul-mua'hada (or territory under compact)
and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty
device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world
through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and
dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held
sway, while the second denoted those lands where Muslims were persecuted or where
Muslim laws were outlawed or ineffective.27 This way of viewing the world, however,
became more complex through the centuries as the Islamic world became part of the
international community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and
inter-governmental organizations, the classical division of the world into dar-ul-Islam and
dar-ul-harb eventually lost its meaning. New terms were drawn up to describe novel
ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land
of compact) and dar-ul-sulh (land of treaty) referred to countries which, though under a
secular regime, maintained peaceful and cooperative relations with Muslim States,
having been bound to each other by treaty or agreement. Dar-ul-aman (land of order),
on the other hand, referred to countries which, though not bound by treaty with Muslim
States, maintained freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating from the regime of
dar-ul-mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF
and the Philippine government - the Philippines being the land of compact and peace
agreement - that partake of the nature of a treaty device, "treaty" being broadly defined
as "any solemn agreement in writing that sets out understandings, obligations, and
benefits for both parties which provides for a framework that elaborates the principles
declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS
FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and
Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
‘Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants
of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the
time of conquest or colonization, and their descendants whether mixed or of full blood,
including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes
not only "Moros" as traditionally understood even by Muslims,31 but all indigenous
peoples of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of
choice of indigenous peoples shall be respected. What this freedom of choice consists in
has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of
which is vested exclusively in the Bangsamoro people by virtue of their prior rights of
occupation.32 Both parties to the MOA-AD acknowledge that ancestral domain does not
form part of the public domain.33
The Bangsamoro people are acknowledged as having the right to self-governance,
which right is said to be rooted on ancestral territoriality exercised originally under the
suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The
sultanates were described as states or "karajaan/kadatuan" resembling a body politic
endowed with all the elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on
the past suzerain authority of the sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and, specifically in the case of
the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of whom was
supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with
defined territory and with a system of government having entered into treaties of amity
and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that
territory, particularly those known as Indians. In Canada, each of these indigenous
peoples is equally entitled to be called "First Nation," hence, all of them are usually
described collectively by the plural "First Nations."36 To that extent, the MOA-AD, by
identifying the Bangsamoro people as "the First Nation" - suggesting its exclusive
entitlement to that designation - departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE)
to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral
Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region.38
More specifically, the core of the BJE is defined as the present geographic area of the
ARMM - thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu,
Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001
plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B. Each of
these areas is to be subjected to a plebiscite to be held on different dates, years apart
from each other. Thus, Category A areas are to be subjected to a plebiscite not later than
twelve (12) months following the signing of the MOA-AD.40 Category B areas, also called
"Special Intervention Areas," on the other hand, are to be subjected to a plebiscite
twenty-five (25) years from the signing of a separate agreement - the Comprehensive
Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural
resources within its "internalwaters," defined as extending fifteen (15) kilometers from
the coastline of the BJE area;42 that the BJE shall also have "territorial waters," which
shall stretch beyond the BJE internal waters up to the baselines of the Republic of the
Philippines (RP) south east and south west of mainland Mindanao; and that within these
territorial waters, the BJE and the "Central Government" (used interchangeably with RP)
shall exercise joint jurisdiction, authority and management over all natural resources.43
Notably, the jurisdiction over the internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the latter, through production
sharing and economic cooperation agreement.44 The activities which the Parties are
allowed to conduct on the territorial waters are enumerated, among which are the
exploration and utilization of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety measures.45 There is no similar
provision on the sharing of minerals and allowed activities with respect to the internal
waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and
trade relations with foreign countries and shall have the option to establish trade
missions in those countries. Such relationships and understandings, however, are not to
include aggression against the GRP. The BJE may also enter into environmental
cooperation agreements.46
The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to "take necessary steps to ensure
the BJE's participation in international meetings and events" like those of the ASEAN
and the specialized agencies of the UN. The BJE is to be entitled to participate in
Philippine official missions and delegations for the negotiation of border agreements or
protocols for environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part of the
ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all potential sources of
energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control
thereon is to be vested in the BJE "as the party having control within its territorial
jurisdiction." This right carries the proviso that, "in times of national emergency, when
public interest so requires," the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or direct the
operation of such resources.48
The sharing between the Central Government and the BJE of total production pertaining
to natural resources is to be 75:25 in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising
from any unjust dispossession of their territorial and proprietary rights, customary land
tenures, or their marginalization shall be acknowledged. Whenever restoration is no
longer possible, reparation is to be in such form as mutually determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure instruments
granted by the Philippine Government, including those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to
embody the "details for the effective enforcement" and "the mechanisms and modalities
for the actual implementation" of the MOA-AD. The MOA-AD explicitly provides that the
participation of the third party shall not in any way affect the status of the relationship
between the Central Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as
"associative," characterized by shared authority and responsibility. And it states that the
structure of governance is to be based on executive, legislative, judicial, and
administrative institutions with defined powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal
framework" shall take effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present controversy hangs on
the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive
of civil service, electoral, financial and banking, education, legislation, legal, economic,
police and internal security force, judicial system and correctional institutions, the details
of which shall be discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo
Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP
and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies
the signatories as "the representatives of the Parties," meaning the GRP and MILF
themselves, and not merely of the negotiating panels.53 In addition, the signature page
of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak,
Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed
Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General and
Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE
PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri
Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were
scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps of
the provinces, municipalities, and barangays under Categories A and B earlier
mentioned in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies.54 Courts decline
to issue advisory opinions or to resolve hypothetical or feigned problems, or mere
academic questions.55 The limitation of the power of judicial review to actual cases and
controversies defines the role assigned to the judiciary in a tripartite allocation of power,
to assure that the courts will not intrude into areas committed to the other branches of
government.56
An actual case or controversy involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a hypothetical or
abstract difference or dispute. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence.57 The Court can
decide the constitutionality of an act or treaty only when a proper case between
opposing parties is submitted for judicial determination.58
Related to the requirement of an actual case or controversy is the requirement of
ripeness. A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it.59 For a case to be considered ripe
for adjudication, it is a prerequisite that something had then been accomplished or
performed by either branch before a court may come into the picture,60 and the petitioner
must allege the existence of an immediate or threatened injury to itself as a result of the
challenged action.61 He must show that he has sustained or is immediately in danger of
sustaining some direct injury as a result of the act complained of.62
The Solicitor General argues that there is no justiciable controversy that is ripe for
judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to further
negotiations and legislative enactments as well as constitutional processes aimed
at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a
proposal that does not automatically create legally demandable rights and
obligations until the list of operative acts required have been duly complied with. x x
x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court has no
authority to pass upon issues based on hypothetical or feigned constitutional
problems or interests with no concrete bases. Considering the preliminary
character of the MOA-AD, there are no concrete acts that could possibly violate
petitioners' and intervenors' rights since the acts complained of are mere
contemplated steps toward the formulation of a final peace agreement. Plainly,
petitioners and intervenors' perceived injury, if at all, is merely imaginary and
illusory apart from being unfounded and based on mere conjectures. (Underscoring
supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
 TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the Government
stipulates to conduct and deliver, using all possible legal measures, within twelve
(12) months following the signing of the MOA-AD, a plebiscite covering the areas
as enumerated in the list and depicted in the map as Category A attached herein
(the "Annex"). The Annex constitutes an integral part of this framework agreement.
Toward this end, the Parties shall endeavor to complete the negotiations and
resolve all outstanding issues on the Comprehensive Compact within fifteen (15)
months from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual implementation
of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take
such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon the signing of a Comprehensive Compact
and upon effecting the necessary changes to the legal framework with due regard
to non-derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy
ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the
challenged action, the dispute is said to have ripened into a judicial controversy
even without any other overt act. Indeed, even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our constitutional scheme
is a coequal of Congress, is seriously alleged to have infringed the Constitution and
the laws x x x settling the dispute becomes the duty and the responsibility of the
courts.66
In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held
that the challenge to the constitutionality of the school's policy allowing student-led
prayers and speeches before games was ripe for adjudication, even if no public prayer
had yet been led under the policy, because the policy was being challenged as
unconstitutional on its face.68
That the law or act in question is not yet effective does not negate ripeness. For example,
in New York v. United States,69 decided in 1992, the United States Supreme Court held
that the action by the State of New York challenging the provisions of the Low-Level
Radioactive Waste Policy Act was ripe for adjudication even if the questioned provision
was not to take effect until January 1, 1996, because the parties agreed that New York
had to take immediate action to avoid the provision's consequences.70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted, in
the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of
its jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.72 Mandamus is a remedy granted by law when any tribunal, corporation,
board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use or enjoyment of a right or office to which such other is
entitled.73 Certiorari, Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative
and executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O.
No. 3), issued on February 28, 2001.75 The said executive order requires that "[t]he
government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order."76
The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the
terms of the MOA-AD without consulting the local government units or communities
affected, nor informing them of the proceedings. As will be discussed in greater detail
later, such omission, by itself, constitutes a departure by respondents from their
mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that "any provisions of the MOA-AD requiring
amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal
framework," implying an amendment of the Constitution to accommodate the MOA-AD.
This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution.
Such act constitutes another violation of its authority. Again, these points will be
discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the
Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition,
and Mandamus, and an actual case or controversy ripe for adjudication exists. When an
act of a branch of government is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."78
Because constitutional cases are often public actions in which the relief sought is likely
to affect other persons, a preliminary question frequently arises as to this interest in the
constitutional question raised.79
When suing as a citizen, the person complaining must allege that he has been or is
about to be denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute or act
complained of.80 When the issue concerns a public right, it is sufficient that the petitioner
is a citizen and has an interest in the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that public funds are
illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law.82 The Court retains
discretion whether or not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive that injures
the institution of Congress causes a derivative but nonetheless substantial injury that
can be questioned by legislators. A member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and privileges vested by the
Constitution in his office.84
An organization may be granted standing to assert the rights of its members,85 but the
mere invocation by the Integrated Bar of the Philippines or any member of the legal
profession of the duty to preserve the rule of law does not suffice to clothe it with
standing.86
As regards a local government unit (LGU), it can seek relief in order to protect or
vindicate an interest of its own, and of the other LGUs.87
Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy
the requirements of the law authorizing intervention,88 such as a legal interest in the
matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi,
given the liberal attitude it has exercised, highlighted in the case of David v.
Macapagal-Arroyo,89 where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of transcendental
importance deserving the attention of the Court in view of their seriousness, novelty and
weight as precedents.90 The Court's forbearing stance on locus standi on issues
involving constitutional issues has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to determine
whether the other branches of government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion given them, has brushed
aside technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591)
Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893)
and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of
Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in
view of the direct and substantial injury that they, as LGUs, would suffer as their
territories, whether in whole or in part, are to be included in the intended domain of the
BJE. These petitioners allege that they did not vote for their inclusion in the ARMM which
would be expanded to form the BJE territory. Petitioners' legal standing is thus beyond
doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino
Pimentel III would have no standing as citizens and taxpayers for their failure to specify
that they would be denied some right or privilege or there would be wastage of public
funds. The fact that they are a former Senator, an incumbent mayor of Makati City, and a
resident of Cagayan de Oro, respectively, is of no consequence. Considering their
invocation of the transcendental importance of the issues at hand, however, the Court
grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers,
assert that government funds would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can
be given legal standing. Their allegation that the issues involved in these petitions are of
"undeniable transcendental importance" clothes them with added basis for their
personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member
of the Senate and a citizen to enforce compliance by respondents of the public's
constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest
in the matter in litigation, or in the success or failure of either of the parties. He thus
possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district
of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as
members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as
taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City; and
Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the present
petitions. Just the same, the Court exercises its discretion to relax the procedural
technicality on locus standi given the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace and prosperity
in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a
non-government organization of Muslim lawyers, allege that they stand to be benefited
or prejudiced, as the case may be, in the resolution of the petitions concerning the
MOA-AD, and prays for the denial of the petitions on the grounds therein stated. Such
legal interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the
satisfaction of all the reliefs prayed for by petitioners and the subsequent
pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA."92
In lending credence to this policy decision, the Solicitor General points out that the
President had already disbanded the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle
not being a magical formula that automatically dissuades courts in resolving a case, it
will decide cases, otherwise moot and academic, if it finds that (a) there is a grave
violation of the Constitution;95 (b) the situation is of exceptional character and paramount
public interest is involved;96 (c) the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public;97 and (d) the case is
capable of repetition yet evading review.98
Another exclusionary circumstance that may be considered is where there is a voluntary
cessation of the activity complained of by the defendant or doer. Thus, once a suit is filed
and the doer voluntarily ceases the challenged conduct, it does not automatically
deprive the tribunal of power to hear and determine the case and does not render the
case moot especially when the plaintiff seeks damages or prays for injunctive relief
against the possible recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust them into the
domain of judicial review. The grounds cited above in David are just as applicable in the
present cases as they were, not only in David, but also in Province of Batangas v.
Romulo100 and Manalo v. Calderon101 where the Court similarly decided them on the
merits, supervening events that would ordinarily have rendered the same moot
notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It
bears emphasis that the signing of the MOA-AD did not push through due to the Court's
issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of
consensus points," especially given its nomenclature, the need to have it signed or
initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these "consensus points," foremost of which is the
creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal
framework for certain provisions of the MOA-AD to take effect. Consequently, the
present petitions are not confined to the terms and provisions of the MOA-AD, but to
other on-going and future negotiations and agreements necessary for its realization.
The petitions have not, therefore, been rendered moot and academic simply by the
public disclosure of the MOA-AD,102 the manifestation that it will not be signed as well as
the disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest,
involving a significant part of the country's territory and the wide-ranging political
modifications of affected LGUs. The assertion that the MOA-AD is subject to further
legal enactments including possible Constitutional amendments more than ever
provides impetus for the Court to formulate controlling principles to guide the
bench, the bar, the public and, in this case, the government and its negotiating
entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on
issues which no longer legitimately constitute an actual case or controversy [as this] will
do more harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was
assailed and eventually cancelled was a stand-alone government procurement contract
for a national broadband network involving a one-time contractual relation between two
parties-the government and a private foreign corporation. As the issues therein involved
specific government procurement policies and standard principles on contracts, the
majority opinion in Suplico found nothing exceptional therein, the factual circumstances
being peculiar only to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of
agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD which
dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such
component to be undertaken following the implementation of the Security Aspect in
August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May
2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to
the Solicitor General, has stated that "no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-AD]," mootness will not set in in light of
the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to
carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or
in any form, which could contain similar or significantly drastic provisions. While the
Court notes the word of the Executive Secretary that the government "is committed to
securing an agreement that is both constitutional and equitable because that is the only
way that long-lasting peace can be assured," it is minded to render a decision on the
merits in the present petitions to formulate controlling principles to guide the bench,
the bar, the public and, most especially, the government in negotiating with the
MILF regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice
Artemio Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of
"capable of repetition yet evading review" can override mootness, "provided the party
raising it in a proper case has been and/or continue to be prejudiced or damaged as a
direct result of their issuance." They contend that the Court must have jurisdiction over
the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises
original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for
Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far
reaching implications and raises questions that need to be resolved.105 At all events, the
Court has jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark cases.106
There is a reasonable expectation that petitioners, particularly the Provinces of North
Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan
and Isabela, and the Municipality of Linamon, will again be subjected to the same
problem in the future as respondents' actions are capable of repetition, in another or any
form.
It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD and its annexes. Too,
intervenors have been furnished, or have procured for themselves, copies of the
MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD
was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public consultation
and the right to information when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public
concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.107
108
As early as 1948, in Subido v. Ozaeta, the Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded
constitutional status.
The right of access to public documents, as enshrined in both the 1973 Constitution and
the 1987 Constitution, has been recognized as a self-executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to
public records is predicated on the right of the people to acquire information on matters
of public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest
in matters of social and political significance.
x x x The incorporation of this right in the Constitution is a recognition of the fundamental
role of free exchange of information in a democracy. There can be no realistic perception
by the public of the nation's problems, nor a meaningful democratic decision-making if
they are denied access to information of general interest. Information is needed to
enable the members of society to cope with the exigencies of the times. As has been
aptly observed: "Maintaining the flow of such information depends on protection for both
its acquisition and its dissemination since, if either process is interrupted, the flow
inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation112 so that they may be able to criticize and participate in the affairs
of the government in a responsible, reasonable and effective manner. It is by ensuring
an unfettered and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of public
concern114 faces no serious challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.115 In previous cases, the Court found that the regularity of real
estate transactions entered in the Register of Deeds,116 the need for adequate notice to
the public of the various laws,117 the civil service eligibility of a public employee,118 the
proper management of GSIS funds allegedly used to grant loans to public officials,119 the
recovery of the Marcoses' alleged ill-gotten wealth,120 and the identity of party-list
nominees,121 among others, are matters of public concern. Undoubtedly, the MOA-AD
subject of the present cases is of public concern, involving as it does the
sovereignty and territorial integrity of the State, which directly affects the lives of the
public at large.
Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as to the
executory nature or commercial character of agreements, the Court has categorically
ruled:
x x x [T]he right to information "contemplates inclusion of negotiations leading
to the consummation of the transaction." Certainly, a consummated contract is
not a requirement for the exercise of the right to information. Otherwise, the people
can never exercise the right if no contract is consummated, and if one is
consummated, it may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes
fait accompli. This negates the State policy of full transparency on matters of public
concern, a situation which the framers of the Constitution could not have intended.
Such a requirement will prevent the citizenry from participating in the public
discussion of any proposed contract, effectively truncating a basic right enshrined
in the Bill of Rights. We can allow neither an emasculation of a constitutional right,
nor a retreat by the State of its avowed "policy of full disclosure of all its
transactions involving public interest."122 (Emphasis and italics in the original)
Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is
the policy of public disclosure under Section 28, Article II of the Constitution reading:
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.124
The policy of full public disclosure enunciated in above-quoted Section 28 complements
the right of access to information on matters of public concern found in the Bill of Rights.
The right to information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if nobody
demands.125
The policy of public disclosure establishes a concrete ethical principle for the conduct of
public affairs in a genuinely open democracy, with the people's right to know as the
centerpiece. It is a mandate of the State to be accountable by following such policy.126
These provisions are vital to the exercise of the freedom of expression and essential to
hold public officials at all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated
or will not be in force and effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of
course, the implementing law will have to be enacted by Congress, Mr. Presiding
Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on
the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer,
did I get the Gentleman correctly as having said that this is not a self-executing
provision? It would require a legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an
amendment from Commissioner Regalado, so that the safeguards on national
interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take
effect and Congress may provide for reasonable safeguards on the sole
ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of
course, Congress here may no longer pass a law revoking it, or if this is approved,
revoking this principle, which is inconsistent with this policy.129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the
passing of a statute. As Congress cannot revoke this principle, it is merely directed to
provide for "reasonable safeguards." The complete and effective exercise of the right to
information necessitates that its complementary provision on public disclosure derive the
same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say
that the broader130 right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its transactions involving
public interest is not enforceable until there is an enabling law. Respondents cannot thus
point to the absence of an implementing legislation as an excuse in not effecting such
policy.
An essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the interest
of the State that the channels for free political discussion be maintained to the end that
the government may perceive and be responsive to the people's will.131Envisioned to be
corollary to the twin rights to information and disclosure is the design for feedback
mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be
able to participate? Will the government provide feedback mechanisms so
that the people can participate and can react where the existing media
facilities are not able to provide full feedback mechanisms to the government?
I suppose this will be part of the government implementing operational
mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these
courses take place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about
public officials but also network of private business o[r] community-based
organizations that will be reacting. As a matter of fact, we will put more credence
or credibility on the private network of volunteers and voluntary community-based
organizations. So I do not think we are afraid that there will be another OMA in the
making.132(Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is
evident in the "marching orders" to respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding the peace agenda and process
is manifestly provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares
that there is a need to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it
"should be community-based, reflecting the sentiments, values and principles important
to all Filipinos" and "shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community."134 Included as a
component of the comprehensive peace process is consensus-building and
empowerment for peace, which includes "continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the mobilization
and facilitation of people's participation in the peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is
"more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of
which is to "[c]onduct regular dialogues with the National Peace Forum (NPF) and other
peace partners to seek relevant information, comments, recommendations as well as to
render appropriate and timely reports on the progress of the comprehensive peace
process."137 E.O. No. 3 mandates the establishment of the NPF to be "the principal
forum for the PAPP to consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local levels, on the
implementation of the comprehensive peace process, as well as for government[-]civil
society dialogue and consensus-building on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace
agenda, as a corollary to the constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the
pertinent consultation. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to a
whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the law and
discharge the functions within the authority granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to respondents'
retort in justifying the denial of petitioners' right to be consulted. Respondents' stance
manifests the manner by which they treat the salient provisions of E.O. No. 3 on people's
participation. Such disregard of the express mandate of the President is not much
different from superficial conduct toward token provisos that border on classic lip
service.140 It illustrates a gross evasion of positive duty and a virtual refusal to perform
the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable
under the premises. The argument defies sound reason when contrasted with E.O. No.
3's explicit provisions on continuing consultation and dialogue on both national and local
levels. The executive order even recognizes the exercise of the public's right even
before the GRP makes its official recommendations or before the government proffers its
definite propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant advice,
information, comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in
view of their unqualified disclosure of the official copies of the final draft of the MOA-AD.
By unconditionally complying with the Court's August 4, 2008 Resolution, without a
prayer for the document's disclosure in camera, or without a manifestation that it was
complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State
policy to "require all national agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and people's organizations, and
other concerned sectors of the community before any project or program is implemented
in their respective jurisdictions"142 is well-taken. The LGC chapter on intergovernmental
relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by
government authorities unlessthe consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.143 (Italics and
underscoring supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and
above-quoted provision of the LGU apply only to national programs or projects which are
to be implemented in a particular local community. Among the programs and projects
covered are those that are critical to the environment and human ecology including
those that may call for the eviction of a particular group of people residing in the locality
where these will be implemented.145 The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,146 which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs),
whose interests are represented herein by petitioner Lopez and are adversely affected
by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights, lives and destinies.147
The MOA-AD, an instrument recognizing ancestral domain, failed to justify its
non-compliance with the clear-cut mechanisms ordained in said Act,148 which entails,
among other things, the observance of the free and prior informed consent of the
ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency
the power to delineate and recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is the raison d'etre of the MOA-AD,
without which all other stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without complying with
the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the
MOA-AD is still subject to necessary changes to the legal framework. While paragraph 7
on Governance suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if the country is to
remain democratic, with sovereignty residing in the people and all government authority
emanating from them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot
all be accommodated under the present Constitution and laws. Respondents have
admitted as much in the oral arguments before this Court, and the MOA-AD itself
recognizes the need to amend the existing legal framework to render effective at least
some of its provisions. Respondents, nonetheless, counter that the MOA-AD is free of
any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that
framework are made. The validity of this argument will be considered later. For now, the
Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers
conceded therein to the BJE. Petitioners assert that the powers granted to the BJE
exceed those granted to any local government under present laws, and even go beyond
those of the present ARMM. Before assessing some of the specific powers that would
have been vested in the BJE, however, it would be useful to turn first to a general idea
that serves as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly alludes to
this concept, indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision,
however, that the MOA-AD most clearly uses it to describe the envisioned relationship
between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro
juridical entity shall be associative characterized by shared authority and
responsibility with a structure of governance based on executive, legislative,
judicial and administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established in a
comprehensive peace compact specifying the relationship between the Central
Government and the BJE. (Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined
more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that
there is a concept of "association" in international law, and the MOA-AD - by its inclusion
of international law instruments in its TOR- placed itself in an international legal context,
that concept of association may be brought to bear in understanding the use of the term
"associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish
durable links. In the basic model, one state, the associate, delegates certain
 responsibilities to the other, the principal, while maintaining its international
status as a state. Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated
States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the
Pacific Islands,151 are associated states of the U.S. pursuant to a Compact of Free
Association. The currency in these countries is the U.S. dollar, indicating their very close
ties with the U.S., yet they issue their own travel documents, which is a mark of their
statehood. Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM
generally have the capacity to conduct foreign affairs in their own name and right, such
capacity extending to matters such as the law of the sea, marine resources, trade,
banking, postal, civil aviation, and cultural relations. The U.S. government, when
conducting its foreign affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to
or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.
government has the authority and obligation to defend them as if they were part of U.S.
territory. The U.S. government, moreover, has the option of establishing and using
military areas and facilities within these associated states and has the right to bar the
military personnel of any third country from having access to these territories for military
purposes.
It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national
constitution, and each party may terminate the association consistent with the right of
independence. It has been said that, with the admission of the U.S.-associated states to
the UN in 1990, the UN recognized that the American model of free association is
actually based on an underlying status of independence.152
In international practice, the "associated state" arrangement has usually been used as a
transitional device of former colonies on their way to full independence. Examples of
states that have passed through the status of associated states as a transitional phase
are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All
have since become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJE's capacity to
enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings and events in the
ASEAN and the specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. Moreover, the BJE's right to participate in
Philippine official missions bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies of water adjacent to or
between the islands forming part of the ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be consulted by the U.S. government
on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to
vest in the BJE the status of an associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as
having an "associative" relationship with the national government. Indeed, the concept
implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state.
The Constitution, however, does not contemplate any state in this jurisdiction other than
the Philippine State, much less does it provide for a transitory status that aims to prepare
any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore, already
requires for its validity the amendment of constitutional provisions, specifically the
following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There shall
be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and
in the Cordilleras consisting of provinces, cities, municipalities, and geographical
areas sharing common and distinctive historical and cultural heritage, economic
and social structures, and other relevant characteristics within the framework of
this Constitution and the national sovereignty as well as territorial integrity
of the Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM. Indeed, BJE
is a state in all but name as it meets the criteria of a state laid down in the
Montevideo Convention,154 namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it - which has betrayed itself by its use of the
concept of association - runs counter to the national sovereignty and territorial
integrity of the Republic.
The defining concept underlying the relationship between the national
government and the BJE being itself contrary to the present Constitution, it is not
surprising that many of the specific provisions of the MOA-AD on the formation
and powers of the BJE are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous
region shall be effective when approved by a majority of the votes cast by the constituent
units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the
autonomous region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term "autonomous region" in the constitutional
provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c)
on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM
and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the
ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and
Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast
to the areas under Categories A and B mentioned earlier in the overview. That the
present components of the ARMM and the above-mentioned municipalities voted for
inclusion therein in 2001, however, does not render another plebiscite unnecessary
under the Constitution, precisely because what these areas voted for then was their
inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the
general welfare of the people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the
MOA-AD would require an amendment that would expand the above-quoted provision.
The mere passage of new legislation pursuant to sub-paragraph No. 9 of said
constitutional provision would not suffice, since any new law that might vest in the BJE
the powers found in the MOA-AD must, itself, comply with other provisions of the
Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with
treaty-making power in order to accommodate paragraph 4 of the strand on
RESOURCES which states: "The BJE is free to enter into any economic cooperation
and trade relations with foreign countries: provided, however, that such relationships and
understandings do not include aggression against the Government of the Republic of
the Philippines x x x." Under our constitutional system, it is only the President who has
that power. Pimentel v. Executive Secretary155 instructs:
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. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme
envisioned in the MOA-AD is to be effected. That constitutional provision states: "The
State recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development." (Underscoring supplied) An associative
arrangement does not uphold national unity. While there may be a semblance of unity
because of the associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international practice, has
generally been a preparation for independence, is certainly not conducive to national
unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent
with prevailing statutory law, among which are R.A. No. 9054156 or the Organic Act
of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts
and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as "Bangsamoros". The Bangsamoro
people refers to those who are natives or original inhabitants of Mindanao and
its adjacent islands including Palawan and the Sulu archipelago at the time of
conquest or colonization of its descendants whether mixed or of full blood.
Spouses and their descendants are classified as Bangsamoro. The freedom of
choice of the Indigenous people shall be respected. (Emphasis and underscoring
supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X,
Section 3 of the Organic Act, which, rather than lumping together the identities of the
Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes
between Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community" refers to
Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic
conditions distinguish them from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and who
have retained some or all of their own social, economic, cultural, and political
institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-AD's manner of delineating the ancestral
domain of the Bangsamoro people is a clear departure from that procedure. By
paragraph 1 of Territory, the Parties simply agree that, subject to the delimitations in the
agreed Schedules, "[t]he Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial
domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as
illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and delineation of ancestral
domains shall be done in accordance with the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific perimeter may be
initiated by the NCIP with the consent of the ICC/IP concerned, or through a
Petition for Delineation filed with the NCIP, by a majority of the members of the
ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries
including census of all community members therein, shall be immediately
undertaken by the Ancestral Domains Office upon filing of the application by the
ICCs/IPs concerned. Delineation will be done in coordination with the community
concerned and shall at all times include genuine involvement and participation by
the members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony
of elders or community under oath, and other documents directly or indirectly
attesting to the possession or occupation of the area since time immemorial by
such ICCs/IPs in the concept of owners which shall be any one (1) of the following
authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old improvements,
burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and
hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as
mountains, rivers, creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the
community.
e) Preparation of Maps. - On the basis of such investigation and the findings of fact
based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter
map, complete with technical descriptions, and a description of the natural features
and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of the
preliminary census and a report of investigation, shall be prepared by the Ancestral
Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a translation in the
native language of the ICCs/IPs concerned shall be posted in a prominent place
therein for at least fifteen (15) days. A copy of the document shall also be posted at
the local, provincial and regional offices of the NCIP, and shall be published in a
newspaper of general circulation once a week for two (2) consecutive weeks to
allow other claimants to file opposition thereto within fifteen (15) days from date of
such publication: Provided, That in areas where no such newspaper exists,
broadcasting in a radio station will be a valid substitute: Provided, further, That
mere posting shall be deemed sufficient if both newspaper and radio station are not
available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the
inspection process, the Ancestral Domains Office shall prepare a report to the
NCIP endorsing a favorable action upon a claim that is deemed to have sufficient
proof. However, if the proof is deemed insufficient, the Ancestral Domains Office
shall require the submission of additional evidence: Provided, That the Ancestral
Domains Office shall reject any claim that is deemed patently false or fraudulent
after inspection and verification: Provided, further, That in case of rejection, the
Ancestral Domains Office shall give the applicant due notice, copy furnished all
concerned, containing the grounds for denial. The denial shall be appealable to the
NCIP: Provided, furthermore, That in cases where there are conflicting claims
among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral
Domains Office shall cause the contending parties to meet and assist them in
coming up with a preliminary resolution of the conflict, without prejudice to its full
adjudication according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the present legal
system, a discussion of not only the Constitution and domestic statutes, but also of
international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the
generally accepted principles of international law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158
held that the Universal Declaration of Human Rights is part of the law of the land on
account of which it ordered the release on bail of a detained alien of Russian descent
whose deportation order had not been executed even after two years. Similarly, the
Court in Agustin v. Edu159 applied the aforesaid constitutional provision to the 1968
Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of "peoples,"
understood not merely as the entire population of a State but also a portion thereof. In
considering the question of whether the people of Quebec had a right to unilaterally
secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION
OF QUEBEC160 had occasion to acknowledge that "the right of a people to
self-determination is now so widely recognized in international conventions that the
principle has acquired a status beyond ‘convention' and is considered a general principle
of international law."
Among the conventions referred to are the International Covenant on Civil and Political
Rights161 and the International Covenant on Economic, Social and Cultural Rights162
which state, in Article 1 of both covenants, that all peoples, by virtue of the right of
self-determination, "freely determine their political status and freely pursue their
economic, social, and cultural development."
The people's right to self-determination should not, however, be understood as
extending to a unilateral right of secession. A distinction should be made between the
right of internal and external self-determination. REFERENCE RE SECESSION OF
QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to
self-determination of a people is normally fulfilled through internal
self-determination - a people's pursuit of its political, economic, social and
cultural development within the framework of an existing state. A right to
external self-determination (which in this case potentially takes the form of
the assertion of a right to unilateral secession) arises in only the most
extreme of cases and, even then, under carefully defined circumstances. x x x
External self-determination can be defined as in the following statement from
the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free association
or integration with an independent State or the emergence into any other
political status freely determined by a peopleconstitute modes of implementing
the right of self-determination by that people. (Emphasis added)
127. The international law principle of self-determination has evolved within a
framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a people's right to
self-determination also contain parallel statements supportive of the conclusion
that the exercise of such a right must be sufficiently limited to prevent threats to an
existing state's territorial integrity or the stability of relations between sovereign
states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right to
external self-determination can arise, namely, where a people is under colonial rule, is
subject to foreign domination or exploitation outside a colonial context, and - less
definitely but asserted by a number of commentators - is blocked from the meaningful
exercise of its right to internal self-determination. The Court ultimately held that the
population of Quebec had no right to secession, as the same is not under colonial rule or
foreign domination, nor is it being deprived of the freedom to make political choices and
pursue economic, social and cultural development, citing that Quebec is equitably
represented in legislative, executive and judicial institutions within Canada, even
occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the REPORT
OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF
THE AALAND ISLANDS QUESTION.163 There, Sweden presented to the Council of the
League of Nations the question of whether the inhabitants of the Aaland Islands should
be authorized to determine by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving
the question, appointed an International Committee composed of three jurists to submit
an opinion on the preliminary issue of whether the dispute should, based on international
law, be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule
as follows:
x x x [I]n the absence of express provisions in international treaties, the right of
disposing of national territory is essentially an attribute of the sovereignty of
every State. Positive International Law does not recognize the right of
national groups, as such, to separate themselves from the State of which
they form part by the simple expression of a wish, any more than it recognizes
the right of other States to claim such a separation. Generally speaking, the grant
or refusal of the right to a portion of its population of determining its own
political fate by plebiscite or by some other method, is, exclusively, an
attribute of the sovereignty of every State which is definitively constituted. A
dispute between two States concerning such a question, under normal conditions
therefore, bears upon a question which International Law leaves entirely to the
domestic jurisdiction of one of the States concerned. Any other solution would
amount to an infringement of sovereign rights of a State and would involve the risk
of creating difficulties and a lack of stability which would not only be contrary to the
very idea embodied in term "State," but would also endanger the interests of the
international community. If this right is not possessed by a large or small section of
a nation, neither can it be held by the State to which the national group wishes to
be attached, nor by any other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a
question which is left by international law to the domestic jurisdiction of Finland, thereby
applying the exception rather than the rule elucidated above. Its ground for departing
from the general rule, however, was a very narrow one, namely, the Aaland Islands
agitation originated at a time when Finland was undergoing drastic political
transformation. The internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the
legitimacy of the Finnish national government was disputed by a large section of the
people, and it had, in fact, been chased from the capital and forcibly prevented from
carrying out its duties. The armed camps and the police were divided into two opposing
forces. In light of these circumstances, Finland was not, during the relevant time period,
a "definitively constituted" sovereign state. The Committee, therefore, found that Finland
did not possess the right to withhold from a portion of its population the option to
separate itself - a right which sovereign nations generally have with respect to their own
populations.
Turning now to the more specific category of indigenous peoples, this term has been
used, in scholarship as well as international, regional, and state practices, to refer to
groups with distinct cultures, histories, and connections to land (spiritual and otherwise)
that have been forcibly incorporated into a larger governing society. These groups are
regarded as "indigenous" since they are the living descendants of pre-invasion
inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples,
nations, or communities are culturally distinctive groups that find themselves engulfed by
settler societies born of the forces of empire and conquest.164 Examples of groups who
have been regarded as indigenous peoples are the Maori of New Zealand and the
aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated within states do
not have a general right to independence or secession from those states under
international law,165 but they do have rights amounting to what was discussed above as
the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted
the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through
General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being
included among those in favor, and the four voting against being Australia, Canada, New
Zealand, and the U.S. The Declaration clearly recognized the right of indigenous
peoples to self-determination, encompassing the right to autonomy or
self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right
they freely determine their political status and freely pursue their economic, social
and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right to
autonomy or self-government in matters relating to their internal and local
affairs, as well as ways and means for financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political,
legal, economic, social and cultural institutions, while retaining their right to
participate fully, if they so choose, in the political, economic, social and cultural life
of the State.
Self-government, as used in international legal discourse pertaining to indigenous
peoples, has been understood as equivalent to "internal self-determination."166 The
extent of self-determination provided for in the UN DRIP is more particularly defined in
its subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress
for:
(a) Any action which has the aim or effect of depriving them of their integrity
as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their
lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of
violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic
discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of
their economic and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and
social security.
2. States shall take effective measures and, where appropriate, special measures
to ensure continuing improvement of their economic and social conditions.
Particular attention shall be paid to the rights and special needs of indigenous
elders, women, youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or
acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or
other traditional occupation or use, as well as those which they have otherwise
acquired.
3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous
peoples, unless justified by a relevant public interest or otherwise freely agreed
with or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples
concerned, through appropriate procedures and in particular through their
representative institutions, prior to using their lands or territories for military
activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other
resources.
2. States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their free
and informed consent prior to the approval of any project affecting their lands or
territories and other resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive arrangements
concluded with States or their successors and to have States honour and respect
such treaties, agreements and other constructive arrangements.
 2. Nothing in this Declaration may be interpreted as diminishing or eliminating the
rights of indigenous peoples contained in treaties, agreements and other
constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the
appropriate measures, including legislative measures, to achieve the ends of this
Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now
be regarded as embodying customary international law - a question which the Court
need not definitively resolve here - the obligations enumerated therein do not strictly
require the Republic to grant the Bangsamoro people, through the instrumentality of the
BJE, the particular rights and powers provided for in the MOA-AD. Even the more
specific provisions of the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed, Article 8
presupposes that it is the State which will provide protection for indigenous peoples
against acts like the forced dispossession of their lands - a function that is normally
performed by police officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of the State, then surely the
protection of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous
peoples to the aerial domain and atmospheric space. What it upholds, in Article 26
thereof, is the right of indigenous peoples to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy,
does not obligate States to grant indigenous peoples the near-independent status of an
associated state. All the rights recognized in that document are qualified in Article 46 as
follows:
1. Nothing in this Declaration may be interpreted as implying for any State,
people, group or person any right to engage in any activity or to perform any act
contrary to the Charter of the United Nations or construed as authorizing or
encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II,
Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so
as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot
be reconciled with the Constitution and the laws as presently worded.
Respondents proffer, however, that the signing of the MOA-AD alone would not have
entailed any violation of law or grave abuse of discretion on their part, precisely because
it stipulates that the provisions thereof inconsistent with the laws shall not take effect
until these laws are amended. They cite paragraph 7 of the MOA-AD strand on
GOVERNANCE quoted earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive Compact
to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon signing of a Comprehensive Compact and
upon effecting the necessary changes to the legal framework with due regard to
non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD
from coming into force until the necessary changes to the legal framework are effected.
While the word "Constitution" is not mentioned in the provision now under
consideration or anywhere else in the MOA-AD, the term "legal framework" is
certainly broad enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of
incorporating in the MOA-AD the provisions thereof regarding the associative
relationship between the BJE and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1, 2001, which states
that the "negotiations shall be conducted in accordance with x x x the principles of the
sovereignty and territorial integrityof the Republic of the Philippines." (Emphasis
supplied) Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for independence, or
worse, an implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective
because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded
on E.O. No. 3, Section 5(c), which states that there shall be established Government
Peace Negotiating Panels for negotiations with different rebel groups to be "appointed
by the President as her official emissaries to conduct negotiations, dialogues, and
face-to-face discussions with rebel groups." These negotiating panels are to report to
the President, through the PAPP on the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro
Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only to
those options available under the laws as they presently stand. One of the components
of a comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths
to Peace," is the pursuit of social, economic, and political reforms which may require
new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which
reiterates Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the comprehensive
peace process comprise the processes known as the "Paths to Peace". These
component processes are interrelated and not mutually exclusive, and must
therefore be pursued simultaneously in a coordinated and integrated fashion. They
shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This
component involves the vigorous implementation of various policies, reforms,
programs and projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require administrative action,
new legislation or even constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to
address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence, they
negotiated and were set on signing the MOA-AD that included various social, economic,
and political reforms which cannot, however, all be accommodated within the present
legal framework, and which thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here,
because it must be asked whether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the
President, in the course of peace negotiations, agree to pursue reforms that would
require new legislation and constitutional amendments, or should the reforms be
restricted only to those solutions which the present laws allow? The answer to this
question requires a discussion of the extent of the President's power to conduct
peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not
explicitly mentioned in the Constitution does not mean that she has no such authority. In
Sanlakas v. Executive Secretary,168 in issue was the authority of the President to declare
a state of rebellion - an authority which is not expressly provided for in the Constitution.
The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power
to forbid the return of her exiled predecessor. The rationale for the majority's ruling
rested on the President's
. . . unstated residual powers which are implied from the grant of
executive power and which are necessary for her to comply with her
duties under the Constitution. The powers of the President are not
limited to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of
executive power.
Thus, the President's authority to declare a state of rebellion springs in the
main from her powers as chief executive and, at the same time, draws
strength from her Commander-in-Chief powers. x x x (Emphasis and
underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly included in
her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the
President has the general responsibility to promote public peace, and as
Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion
and lawless violence.169
As the experience of nations which have similarly gone through internal armed conflict
will show, however, peace is rarely attained by simply pursuing a military solution.
Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's
constitutional structure is required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition must
form the core of any post-conflict peace-building mission. As we have observed in
Liberia and Haiti over the last ten years, conflict cessation without modification of
the political environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building, is unlikely to
succeed. On average, more than 50 percent of states emerging from conflict return
to conflict. Moreover, a substantial proportion of transitions have resulted in weak
or limited democracies.
The design of a constitution and its constitution-making process can play an
important role in the political and governance transition. Constitution-making after
conflict is an opportunity to create a common vision of the future of a state and a
road map on how to get there. The constitution can be partly a peace agreement
and partly a framework setting up the rules by which the new democracy will
operate.170
In the same vein, Professor Christine Bell, in her article on the nature and legal status of
peace agreements, observed that the typical way that peace agreements establish or
confirm mechanisms for demilitarization and demobilization is by linking them to new
constitutional structures addressing governance, elections, and legal and human
rights institutions.171
In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of the Constitution.
Behind the provisions of the Constitution on autonomous regions172 is the framers'
intention to implement a particular peace agreement, namely, the Tripoli Agreement of
1976 between the GRP and the MNLF, signed by then Undersecretary of National
Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more
questions, I will reserve my right to ask them if they are not covered by the other
speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in
the Muslim region; it is working very well; it has, in fact, diminished a great deal of
the problems. So, my question is: since that already exists, why do we have to
go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner
Yusup Abubakar is right that certain definite steps have been taken to
implement the provisions of the Tripoli Agreement with respect to an
autonomous region in Mindanao. This is a good first step, but there is no
question that this is merely a partial response to the Tripoli Agreement itself
and to the fuller standard of regional autonomy contemplated in that
agreement, and now by state policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them
have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino
people are still faced with the reality of an on-going conflict between the Government
and the MILF. If the President is to be expected to find means for bringing this conflict to
an end and to achieve lasting peace in Mindanao, then she must be given the leeway to
explore, in the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power to conduct
peace negotiations with rebel groups, the President is in a singular position to know the
precise nature of their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she
considers viable, but she may not be prevented from submitting them as
recommendations to Congress, which could then, if it is minded, act upon them pursuant
to the legal procedures for constitutional amendment and revision. In particular,
Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the
Constitution, to propose the recommended amendments or revision to the people, call a
constitutional convention, or submit to the electorate the question of calling such a
convention.
While the President does not possess constituent powers - as those powers may be
exercised only by Congress, a Constitutional Convention, or the people through initiative
and referendum - she may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of
directly submitting proposals for constitutional amendments to a referendum, bypassing
the interim National Assembly which was the body vested by the 1973 Constitution with
the power to propose such amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld the President's act,
holding that "the urges of absolute necessity" compelled the President as the agent of
the people to act as he did, there being no interim National Assembly to propose
constitutional amendments. Against this ruling, Justices Teehankee and Muñoz Palma
vigorously dissented. The Court's concern at present, however, is not with regard to the
point on which it was then divided in that controversial case, but on that which was not
disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the
President may directly submit proposed constitutional amendments to a referendum,
implicit in his opinion is a recognition that he would have upheld the President's action
along with the majority had the President convened the interim National Assembly and
coursed his proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential departments
of government, defines and delimits the powers of each and prescribes the manner
of the exercise of such powers, and the constituent power has not been granted to
but has been withheld from the President or Prime Minister, it follows that the
President's questioned decrees proposing and submitting constitutional
amendments directly to the people (without the intervention of the interim
National Assembly in whom the power is expressly vested) are devoid of
constitutional and legal basis."176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President - in the
course of conducting peace negotiations - may validly consider implementing even
those policies that require changes to the Constitution, but she may not unilaterally
implement them without the intervention of Congress, or act in any way as if the
assent of that body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly
propose amendments through initiative and referendum, the President may also submit
her recommendations to the people, not as a formal proposal to be voted on in a
plebiscite similar to what President Marcos did in Sanidad, but for their independent
consideration of whether these recommendations merit being formally proposed through
initiative.
These recommendations, however, may amount to nothing more than the President's
suggestions to the people, for any further involvement in the process of initiative by the
Chief Executive may vitiate its character as a genuine "people's initiative." The only
initiative recognized by the Constitution is that which truly proceeds from the people. As
the Court stated in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the ‘people's voice.' However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the
verification of their petition with the COMELEC, that ‘ULAP maintains its
unqualified support to the agenda of Her Excellency President Gloria
Macapagal-Arroyo for constitutional reforms.' The Lambino Group thus admits that
their ‘people's' initiative is an ‘unqualified support to the agenda' of the
incumbent President to change the Constitution. This forewarns the Court to be
wary of incantations of ‘people's voice' or ‘sovereign will' in the present initiative."
It will be observed that the President has authority, as stated in her oath of office,178 only
to preserve and defend the Constitution. Such presidential power does not, however,
extend to allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these changes
and submits to the proper procedure for constitutional amendments and revision, her
mere recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to propose constitutional
amendments, since her authority to propose new legislation is not in controversy. It has
been an accepted practice for Presidents in this jurisdiction to propose new legislation.
One of the more prominent instances the practice is usually done is in the yearly State of
the Nation Address of the President to Congress. Moreover, the annual general
appropriations bill has always been based on the budget prepared by the President,
which - for all intents and purposes - is a proposal for new legislation coming from the
President.179
The "suspensive clause" in the MOA-AD viewed in light of the above-discussed
standards
Given the limited nature of the President's authority to propose constitutional
amendments, she cannot guaranteeto any third party that the required amendments
will eventually be put in place, nor even be submitted to a plebiscite. The most she could
do is submit these proposals as recommendations either to Congress or the people, in
whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof
which cannot be reconciled with the present Constitution and laws "shall come into force
upon signing of a Comprehensive Compact and upon effecting the necessary changes
to the legal framework." This stipulation does not bear the marks of a suspensive
condition - defined in civil law as a future and uncertain event - but of a term. It is not a
question of whether the necessary changes to the legal framework will be effected, but
when. That there is no uncertainty being contemplated is plain from what follows, for the
paragraph goes on to state that the contemplated changes shall be "with due regard to
non derogation of prior agreements and within the stipulated timeframe to be contained
in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes
to the legal framework contemplated in the MOA-AD - which changes would include
constitutional amendments, as discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted
among the "prior agreements" from which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these "consensus points" and, notably, the deadline for effecting
the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of
the President's authority to propose constitutional amendments, it being a virtual
guarantee that the Constitution and the laws of the Republic of the Philippines will
certainly be adjusted to conform to all the "consensus points" found in the MOA-AD.
Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision
appearing in the 1996 final peace agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase Icovered a three-year transitional period involving
the putting up of new administrative structures through Executive Order, such as the
Special Zone of Peace and Development (SZOPAD) and the Southern Philippines
Council for Peace and Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous government through amendment or
repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the
expanded autonomous region envisioned by the parties. To that extent, they are similar
to the provisions of the MOA-AD. There is, however, a crucial difference between the
two agreements. While the MOA-AD virtually guarantees that the "necessary
changes to the legal framework" will be put in place, the GRP-MNLF final peace
agreement states thus: "Accordingly, these provisions [on Phase II] shall be
recommended by the GRP to Congress for incorporation in the amendatory or
repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution in
conformity thereto, on the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of the Philippine
government to the international community that it would grant to the Bangsamoro people
all the concessions therein stated. Neither ground finds sufficient support in international
law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign
dignitaries as signatories. In addition, representatives of other nations were invited to
witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise
that the MOA-AD would have had the status of a binding international agreement had it
been signed. An examination of the prevailing principles in international law, however,
leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the Lomé Accord
case) of the Special Court of Sierra Leone is enlightening. The Lomé Accord was a
peace agreement signed on July 7, 1999 between the Government of Sierra Leone and
the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone
Government had been in armed conflict for around eight years at the time of signing.
There were non-contracting signatories to the agreement, among which were the
Government of the Togolese Republic, the Economic Community of West African States,
and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-General
and the Sierra Leone Government, another agreement was entered into by the UN and
that Government whereby the Special Court of Sierra Leone was established. The sole
purpose of the Special Court, an international court, was to try persons who bore the
greatest responsibility for serious violations of international humanitarian law and Sierra
Leonean law committed in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lomé Accord was a provision for the full pardon of the
members of the RUF with respect to anything done by them in pursuit of their objectives
as members of that organization since the conflict began.
In the Lomé Accord case, the Defence argued that the Accord created an
internationally binding obligation not to prosecute the beneficiaries of the amnesty
provided therein, citing, among other things, the participation of foreign dignitaries and
international organizations in the finalization of that agreement. The Special Court,
however, rejected this argument, ruling that the Lome Accord is not a treaty and that it
can only create binding obligations and rights between the parties in municipal law, not
in international law. Hence, the Special Court held, it is ineffective in depriving an
international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed conflict
it is easy to assume and to argue with some degree of plausibility, as
Defence counsel for the defendants seem to have done, that the mere fact
that in addition to the parties to the conflict, the document formalizing the
settlement is signed by foreign heads of state or their representatives and
representatives of international organizations, means the agreement of the
parties is internationalized so as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict and the
mediator or facilitator of the settlement, or persons or bodies under whose
auspices the settlement took place but who are not at all parties to the conflict, are
not contracting parties and who do not claim any obligation from the contracting
parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the State
and the RUF which has no status of statehood and is to all intents and
purposes a faction within the state. The non-contracting signatories of the
Lomé Agreement were moral guarantors of the principle that, in the terms of
Article XXXIV of the Agreement, "this peace agreement is implemented with
integrity and in good faith by both parties". The moral guarantors assumed
no legal obligation. It is recalled that the UN by its representative appended,
presumably for avoidance of doubt, an understanding of the extent of the
agreement to be implemented as not including certain international crimes.
42. An international agreement in the nature of a treaty must create rights and
obligations regulated by international law so that a breach of its terms will be a
 breach determined under international law which will also provide principle means
of enforcement. The Lomé Agreement created neither rights nor obligations
capable of being regulated by international law. An agreement such as the
Lomé Agreement which brings to an end an internal armed conflict no doubt
creates a factual situation of restoration of peace that the international
community acting through the Security Council may take note of. That,
however, will not convert it to an international agreement which creates an
obligation enforceable in international, as distinguished from municipal, law.
A breach of the terms of such a peace agreement resulting in resumption of internal
armed conflict or creating a threat to peace in the determination of the Security
Council may indicate a reversal of the factual situation of peace to be visited with
possible legal consequences arising from the new situation of conflict created.
Such consequences such as action by the Security Council pursuant to Chapter VII
arise from the situation and not from the agreement, nor from the obligation
imposed by it. Such action cannot be regarded as a remedy for the breach. A
peace agreement which settles an internal armed conflict cannot be ascribed
the same status as one which settles an international armed conflict which,
essentially, must be between two or more warring States. The Lomé
Agreement cannot be characterised as an international instrument. x x x"
(Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest
in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding under international law, that it would comply
with all the stipulations stated therein, with the result that it would have to amend its
Constitution accordingly regardless of the true will of the people. Cited as authority for
this view is Australia v. France,181 also known as the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's
nuclear tests in the South Pacific. France refused to appear in the case, but public
statements from its President, and similar statements from other French officials
including its Minister of Defence, that its 1974 series of atmospheric tests would be its
last, persuaded the ICJ to dismiss the case.182 Those statements, the ICJ held,
amounted to a legal undertaking addressed to the international community, which
required no acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended to be bound
to the international community in issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and often are, very specific. When it
is the intention of the State making the declaration that it should become
bound according to its terms, that intention confers on the declaration the
character of a legal undertaking, the State being thenceforth legally required
to follow a course of conduct consistent with the declaration. An undertaking
of this kind, if given publicly, and with an intent to be bound, even though not made
within the context of international negotiations, is binding. In these circumstances,
nothing in the nature of a quid pro quo nor any subsequent acceptance of the
declaration, nor even any reply or reaction from other States, is required for the
declaration to take effect, since such a requirement would be inconsistent with the
strictly unilateral nature of the juridical act by which the pronouncement by the
State was made.
44. Of course, not all unilateral acts imply obligation; but a State may choose
to take up a certain position in relation to a particular matter with the
intention of being bound-the intention is to be ascertained by interpretation
of the act. When States make statements by which their freedom of action is to be
limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be the last,
the French Government conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests. It was bound to
assume that other States might take note of these statements and rely on
their being effective. The validity of these statements and their legal
consequences must be considered within the general framework of the
security of international intercourse, and the confidence and trust which are so
essential in the relations among States. It is from the actual substance of these
statements, and from the circumstances attending their making, that the
legal implications of the unilateral act must be deduced. The objects of these
statements are clear and they were addressed to the international community
as a whole, and the Court holds that they constitute an undertaking
possessing legal effect. The Court considers *270 that the President of the
Republic, in deciding upon the effective cessation of atmospheric tests, gave an
undertaking to the international community to which his words were addressed. x x
x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the following
conditions are present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its statements, and that
not to give legal effect to those statements would be detrimental to the security of
international intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case
decided by the ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning
the Frontier Dispute. The public declaration subject of that case was a statement made
by the President of Mali, in an interview by a foreign press agency, that Mali would abide
by the decision to be issued by a commission of the Organization of African Unity on a
frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was
not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests
case rested on the peculiar circumstances surrounding the French declaration subject
thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account must
be taken of all the factual circumstances in which the act occurred. For example, in
the Nuclear Tests cases, the Court took the view that since the applicant
States were not the only ones concerned at the possible continuance of
atmospheric testing by the French Government, that Government's unilateral
declarations had ‘conveyed to the world at large, including the Applicant, its
 intention effectively to terminate these tests‘ (I.C.J. Reports 1974, p. 269, para.
51; p. 474, para. 53). In the particular circumstances of those cases, the
French Government could not express an intention to be bound otherwise
than by unilateral declarations. It is difficult to see how it could have
accepted the terms of a negotiated solution with each of the applicants
without thereby jeopardizing its contention that its conduct was lawful. The
circumstances of the present case are radically different. Here, there was
nothing to hinder the Parties from manifesting an intention to accept the
binding character of the conclusions of the Organization of African Unity
Mediation Commission by the normal method: a formal agreement on the
basis of reciprocity. Since no agreement of this kind was concluded between the
Parties, the Chamber finds that there are no grounds to interpret the declaration
made by Mali's head of State on 11 April 1975 as a unilateral act with legal
implications in regard to the present case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a
unilateral declaration on the part of the Philippine State to the international community.
The Philippine panel did not draft the same with the clear intention of being bound
thereby to the international community as a whole or to any State, but only to the MILF.
While there were States and international organizations involved, one way or another, in
the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case, the
mere fact that in addition to the parties to the conflict, the peace settlement is signed by
representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal
effect to such commitments would not be detrimental to the security of international
intercourse - to the trust and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer to that
of Burkina Faso wherein, as already discussed, the Mali President's statement was not
held to be a binding unilateral declaration by the ICJ. As in that case, there was also
nothing to hinder the Philippine panel, had it really been its intention to be bound to other
States, to manifest that intention by formal agreement. Here, that formal agreement
would have come about by the inclusion in the MOA-AD of a clear commitment to be
legally bound to the international community, not just the MILF, and by an equally clear
indication that the signatures of the participating states-representatives would constitute
an acceptance of that commitment. Entering into such a formal agreement would not
have resulted in a loss of face for the Philippine government before the international
community, which was one of the difficulties that prevented the French Government from
entering into a formal agreement with other countries. That the Philippine panel did not
enter into such a formal agreement suggests that it had no intention to be bound to the
international community. On that ground, the MOA-AD may not be considered a
unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents' almost consummated act of guaranteeing amendments
to the legal framework is, by itself, sufficient to constitute grave abuse of
discretion. The grave abuse lies not in the fact that they considered, as a solution to the
Moro Problem, the creation of a state within a state, but in their brazen willingness to
guarantee that Congress and the sovereign Filipino people would give their
imprimatur to their solution. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way
that the Executive can ensure the outcome of the amendment process is through an
undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its
own territory to the Moros for the sake of peace, for it can change the Constitution in any
it wants, so long as the change is not inconsistent with what, in international law, is
known as Jus Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local
government units or communities affected constitutes a departure by respondents from
their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the
mere act of guaranteeing amendments to the Constitution. Any alleged violation of the
Constitution by any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention
and intervening respondents the requisite locus standi in keeping with the liberal stance
adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court
finds that the present petitions provide an exception to the "moot and academic"
principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional
character of the situation and paramount public interest; (c) the need to formulate
controlling principles to guide the bench, the bar, and the public; and (d) the fact that the
case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the
GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in
June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up
that could contain similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in
view of the respondents' action in providing the Court and the petitioners with the official
copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7, Article III of
the Constitution is in splendid symmetry with the state policy of full public disclosure of
all its transactions involving public interest under Sec. 28, Article II of the Constitution.
The right to information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if nobody
demands. The complete and effective exercise of the right to information necessitates
that its complementary provision on public disclosure derive the same self-executory
nature, subject only to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public
interest in the highest order. In declaring that the right to information contemplates steps
and negotiations leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process
of communication between the government and the people. Corollary to these twin rights
is the design for feedback mechanisms. The right to public consultation was envisioned
to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the
exercise of the people's right to be consulted on relevant matters relating to the peace
agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both
national and local levels and for a principal forum for consensus-building. In fact, it is the
duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to
seek relevant information, comments, advice, and recommendations from peace
partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national
offices to conduct consultations before any project or program critical to the environment
and human ecology including those that may call for the eviction of a particular group of
people residing in such locality, is implemented therein. The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people, which could pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for
clear-cut procedure for the recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free and prior informed consent of the
Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not
grant the Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to
information or the specific right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event, respondents effectively
waived such defense after it unconditionally disclosed the official copies of the final draft
of the MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as mandated by
E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by
which the MOA-AD was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its
specific provisions but the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are unconstitutional, for the
concept presupposes that the associated entity is a state and implies that the same is on
its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent
with the present legal framework will not be effective until that framework is amended,
the same does not cure its defect. The inclusion of provisions in the MOA-AD
establishing an associative relationship between the BJE and the Central Government is,
itself, a violation of the Memorandum of Instructions From The President dated March 1,
2001, addressed to the government peace panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a constitutional violation that renders the
MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening
petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF
Tripoli Agreement on Peace of 2001 is declared contrary to law and the Constitution.
SO ORDERED.
CF POLITICAL QUESTION
G.R. No. 157584 April 2, 2009
CONGRESSMAN ENRIQUE T. GARCIA of the 2nd District of Bataan, Petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF THE DEPARTMENT OF
ENERGY, CALTEX PHILIPPINES, INC., PETRON CORPORATION, and PILIPINAS
SHELL CORPORATION Respondents.
DECISION
BRION, J.:
For the second time, petitioner Enrique T. Garcia, Jr. (petitioner Garcia) asks this Court
to examine the constitutionality of Section 19 of Republic Act No. 8479 (R.A. No. 8479),
otherwise known as the Oil Deregulation Law of 1998) through this petition for certiorari.1
He raises once again before us the propriety of implementing full deregulation by
removing the system of price controls in the local downstream oil industry – a matter that
we have ruled upon in the past.
THE FACTS
After years of imposing significant controls over the downstream oil industry in the
Philippines, the government decided in March 1996 to pursue a policy of deregulation by
enacting Republic Act No. 8180 (R.A. No. 8180) or the "Downstream Oil Industry
Deregulation Act of 1996."
R.A. No. 8180, however, met strong opposition, and rightly so, as this Court concluded in
its November 5, 1997 decision in Tatad v. Secretary of Department of Energy.2 We struck
down the law as invalid because the three key provisions intended to promote free
competition were shown to achieve the opposite result; contrary to its intent, R.A. No.
8180’s provisions on tariff differential, inventory requirements, and predatory pricing
inhibited fair competition, encouraged monopolistic power, and interfered with the free
interaction of market forces. We declared:
R.A. No. 8180 needs provisions to vouchsafe free and fair competition. The need for
these vouchsafing provisions cannot be overstated. Before deregulation, PETRON,
SHELL and CALTEX had no real competitors but did not have a free run of the market
because government controls both the pricing and non-pricing aspects of the oil industry.
After deregulation, PETRON, SHELL and CALTEX remain unthreatened by real
competition yet are no longer subject to control by government with respect to their
pricing and non-pricing decisions. The aftermath of R.A. No. 8180 is a deregulated
market where competition can be corrupted and where market forces can be
manipulated by oligopolies.3
Notwithstanding the existence of a separability clause among its provisions, we struck
down R.A. No. 8180 in its entirety because its offensive provisions permeated the whole
law and were the principal tools to carry deregulation into effect.
Congress responded to our Decision in Tatad by enacting on February 10, 1998 a new
oil deregulation law, R.A. No. 8479. This time, Congress excluded the offensive
provisions found in the invalidated law. Nonetheless, petitioner Garcia again sought to
declare the new oil deregulation law unconstitutional on the ground that it violated Article
XII, Section 19 of the Constitution.4 He specifically objected to Section 19 of R.A. No.
8479 which, in essence, prescribed the period for removal of price control on gasoline
and other finished petroleum products and set the time for the full deregulation of the
local downstream oil industry. The assailed provision reads:
SEC. 19. Start of Full Deregulation. – Full deregulation of the Industry shall start five (5)
months following the effectivity of this Act: Provided, however, That when the public
interest so requires, the President may accelerate the start of full deregulation upon the
recommendation of the DOE and the Department of Finance (DOF) when the prices of
crude oil and petroleum products in the world market are declining and the value of the
peso in relation to the US dollar is stable, taking into account relevant trends and
prospects; Provided, further, That the foregoing provision notwithstanding, the five
(5)-month Transition Phase shall continue to apply to LPG, regular gasoline and
kerosene as socially-sensitive petroleum products and said petroleum products shall be
covered by the automatic pricing mechanism during the said period.
Upon the implementation of full deregulation as provided herein, the Transition Phase is
deemed terminated and the following laws are repealed:
a) Republic Act No. 6173, as amended;
b) Section 5 of Executive Order No. 172, as amended;
c) Letter of Instruction No. 1431, dated October 15, 1984;
d) Letter of Instruction No. 1441, dated November 20, 1984, as amended;
e) Letter of Instruction No. 1460, dated May 9, 1985;
f) Presidential Decree No. 1889; and
g) Presidential Decree No. 1956, as amended by Executive Order No. 137:
Provided, however, That in case full deregulation is started by the President in the
exercise of the authority provided in this Section, the foregoing laws shall continue to be
in force and effect with respect to LPG, regular gasoline and kerosene for the rest of the
five (5)-month period.
Petitioner Garcia contended that implementing full deregulation and removing price
control at a time when the market is still dominated and controlled by an oligopoly5 would
be contrary to public interest, as it would only provide an opportunity for the Big 3 to
engage in price-fixing and overpricing. He averred that Section 19 of R.A. No. 8479 is
"glaringly pro-oligopoly, anti-competition, and anti-people," and thus asked the Court to
declare the provision unconstitutional.
On December 17, 1999, in Garcia v. Corona (1999 Garcia case),6 we denied petitioner
Garcia’s plea for nullity. We declined to rule on the constitutionality of Section 19 of R.A.
No. 8479 as we found the question replete with policy considerations; in the words of
Justice Ynares-Santiago, the ponente of the 1999 Garcia case:
It bears reiterating at the outset that the deregulation of the oil industry is a policy
determination of the highest order. It is unquestionably a priority program of Government.
The Department of Energy Act of 1992 expressly mandates that the development and
updating of the existing Philippine energy program "shall include a policy direction
towards deregulation of the power and energy industry."
Be that as it may, we are not concerned with whether or not there should be deregulation.
This is outside our jurisdiction. The judgment on the issue is a settled matter and only
Congress can reverse it.
xxx xxx xxx
Reduced to its basic arguments, it can be seen that the challenge in this petition is not
against the legality of deregulation. Petitioner does not expressly challenge deregulation.
The issue, quite simply, is the timeliness or the wisdom of the date when full
deregulation should be effective.
In this regard, what constitutes reasonable time is not for judicial determination.
Reasonable time involves the appraisal of a great variety of relevant conditions, political,
social and economic. They are not within the appropriate range of evidence in a court of
justice. It would be an extravagant extension of judicial authority to assert judicial notice
as the basis for the determination. [Emphasis supplied.]
Undaunted, petitioner Garcia is again before us in the present petition for certiorari
seeking a categorical declaration from this Court of the unconstitutionality of Section 19
of R.A. No. 8479.
THE PETITION
Petitioner Garcia does not deny that the present petition for certiorari raises the same
issue of the constitutionality of Section 19 of R.A. No. 8479, which was already the
subject of the 1999 Garcia case. He disagrees, however, with the allegation that the prior
rulings of the Court in the two oil deregulation cases7 amount to res judicata that would
effectively bar the resolution of the present petition. He reasons that res judicata will not
apply, as the earlier cases did not completely resolve the controversy and were not
decided on the merits. Moreover, he maintains that the present case involves a matter of
overarching and overriding importance to the national economy and to the public and
cannot be sacrificed for technicalities like res judicata.8
To further support the present petition, petitioner Garcia invokes the following additional
grounds to nullify Section 19 of R.A. No. 8479:
1. Subsequent events after the lifting of price control in 1997 have confirmed the
continued existence of the Big 3 oligopoly and its overpricing of finished petroleum
products;
2. The unabated overpricing of finished petroleum products by the Big 3 oligopoly
is gravely and undeniably detrimental to the public interest;
 3. No longer may the bare and blatant constitutionality of the lifting of price control
be glossed over through the expediency of legislative wisdom or judgment call in
the face of the Big 3 oligopoly’s characteristic, definitive, and continued overpricing;
4. To avoid declaring the lifting of price control on finished petroleum products as
unconstitutional is to consign to the dead letter dustbin the solemn and explicit
constitutional command for the regulation of monopolies/oligopolies.9
THE COURT’S RULING
We resolve to dismiss the petition.
In asking the Court to declare Section 19 of R.A. No. 8479 as unconstitutional for
contravening Section 19, Article XII of the Constitution, petitioner Garcia invokes the
exercise by this Court of its power of judicial review, which power is expressly
recognized under Section 4(2), Article VIII of the Constitution.10 The power of judicial
review is the power of the courts to test the validity of executive and legislative acts for
their conformity with the Constitution.11 Through such power, the judiciary enforces and
upholds the supremacy of the Constitution.12 For a court to exercise this power, certain
requirements must first be met, namely:
(1) an actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have "standing" to challenge; he must have
a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest possible
opportunity; and
(4) the issue of constitutionality must be the very lis mota of the case.13
Actual Case Controversy
Susceptible of Judicial Determination
The petition fails to satisfy the very first of these requirements – the existence of an
actual case or controversy calling for the exercise of judicial power. An actual case or
controversy is one that involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial resolution; the case must not be moot or academic or
based on extra-legal or other similar considerations not cognizable by a court of justice.
Stated otherwise, it is not the mere existence of a conflict or controversy that will
authorize the exercise by the courts of its power of review; more importantly, the issue
involved must be susceptible of judicial determination. Excluded from these are
questions of policy or wisdom, otherwise referred to as political questions:
As Tañada v. Cuenco puts it, 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 government." Thus, if an issue is clearly identified by the text of the
Constitution as matters for discretionary action by a particular branch of government or
to the people themselves then it is held to be a political question. In the classic
formulation of Justice Brennan in Baker v. Carr, "[p]rominent on the surface of any case
held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court’s undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on the one
question."14 [Emphasis supplied.]
Petitioner Garcia’s issues fit snugly into the political question mold, as he insists that by
adopting a policy of full deregulation through the removal of price controls at a time when
an oligopoly still exists, Section 19 of R.A. No. 8479 contravenes the Constitutional
directive to regulate or prohibit monopolies15 under Article XII, Section 19 of the
Constitution. This Section states:
The State shall regulate or prohibit monopolies when the public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed.
Read correctly, this constitutional provision does not declare an outright prohibition of
monopolies. It simply allows the State to act "when public interest so requires"; even
then, no outright prohibition is mandated, as the State may choose to regulate rather
than to prohibit. Two elements must concur before a monopoly may be regulated or
prohibited:
1. There in fact exists a monopoly or an oligopoly, and
2. Public interest requires its regulation or prohibition.
Whether a monopoly exists is a question of fact. On the other hand, the questions of (1)
what public interest requires and (2) what the State reaction shall be essentially require
the exercise of discretion on the part of the State.
Stripped to its core, what petitioner Garcia raises as an issue is the propriety of
immediately and fully deregulating the oil industry. Such determination essentially dwells
on the soundness or wisdom of the timing and manner of the deregulation Congress
wants to implement through R.A. No. 8497. Quite clearly, the issue is not for us to
resolve; we cannot rule on when and to what extent deregulation should take place
without passing upon the wisdom of the policy of deregulation that Congress has
decided upon. To use the words of Baker v. Carr,16 the ruling that petitioner Garcia asks
requires "an initial policy determination of a kind clearly for non-judicial discretion"; the
branch of government that was given by the people the full discretionary authority to
formulate the policy is the legislative department.
Directly supporting our conclusion that Garcia raises a political question is his proposal
to adopt instead a system of partial deregulation – a system he presents as more
consistent with the Constitutional "dictate." He avers that free market forces (in a fully
deregulated environment) cannot prevail for as long as the market itself is dominated by
an entrenched oligopoly. In such situation, he claims that prices are not determined by
the free play of supply and demand, but instead by the entrenched and dominant
oligopoly where overpricing and price-fixing are possible.17Thus, before full deregulation
can be implemented, he calls for an indefinite period of partial deregulation through
imposition of price controls.18
Petitioner Garcia’s thesis readily reveals the political,19 hence, non-justiciable, nature of
his petition; the choice of undertaking full or partial deregulation is not for this Court to
make. By enacting the assailed provision – Section 19 – of R.A. No. 8479, Congress
already determined that the problems confronting the local downstream oil industry are
better addressed by removing all forms of prior controls and adopting a deregulated
system.1awphi1.net This intent is expressed in Section 2 of the law:
Section 2. Declaration of Policy. – It shall be the policy of the State to liberalize and
deregulate the downstream oil industry in order to ensure a truly competitive market
under a regime of fair prices, adequate and continuous supply of environmentally-clean
and high-quality petroleum products. To this end, the State shall promote and encourage
the entry of new participants in the downstream oil industry, and introduce adequate
measures to ensure the attainment of these goals.
In Tatad, we declared that the fundamental principle espoused by Section 19, Article XII
of the Constitution is competition.20 Congress, by enacting R.A. No. 8479, determined
that this objective is better realized by liberalizing the oil market, instead of continuing
with a highly regulated system enforced by means of restrictive prior controls. This
legislative determination was a lawful exercise of Congress’ prerogative and one that
this Court must respect and uphold. Regardless of the individual opinions of the
Members of this Court, we cannot, acting as a body, question the wisdom of a co-equal
department’s acts. The courts do not involve themselves with or delve into the policy or
wisdom of a statute;21 it sits, not to review or revise legislative action, but to enforce the
legislative will.22For the Court to resolve a clearly non-justiciable matter would be to
debase the principle of separation of powers that has been tightly woven by the
Constitution into our republican system of government.
This same line of reasoning was what we used when we dismissed the first Garcia case.
The petitioner correctly noted that this is not a matter of res judicata (as the respondents
invoked), as the application of the principle of res judicata presupposes that there is a
final judgment or decree on the merits rendered by a court of competent jurisdiction. To
be exact, we are simply declaring that then, as now, and for the same reasons, we find
that there is no justiciable controversy that would justify the grant of the petition.
Grave Abuse of Discretion
Recourse to the political question doctrine necessarily raises the underlying doctrine of
separation of powers among the three great branches of government that our
Constitution has entrenched. But at the same time that the Constitution mandates this
Court to respect acts performed by co-equal departments done within their sphere of
competence and authority, it has also allowed us to cross the line of separation on a very
limited and specific point – to determine whether the acts of the executive and the
legislative departments are null because they were undertaken with grave abuse of
discretion. IBP v. Zamora teaches us that -
When political questions are involved, the Constitution limits the determination as to
whether there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned.
xxx xxx xxx
[W]hile this Court has no power to substitute its judgment for that of Congress or of the
President, it may look into the question of whether such exercise has been made in
grave abuse of discretion. A showing that plenary power is granted either department of
government, may not be an obstacle to judicial inquiry, for the improvident exercise or
abuse thereof may give rise to justiciable controversy. 23 [Emphasis supplied.]
Jurisprudence has defined grave abuse of discretion to mean the capricious or
whimsical exercise of judgment that is so patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility.24
Significantly, the pleadings before us fail to disclose any act of the legislature that may
be characterized as patently capricious or whimsical. A reading of the congressional
deliberations made on R.A. No. 8479 indicates that the measure was thoroughly and
carefully considered. Indeed, petitioner Garcia was among the many who interpellated
the law’s principal author, then Congressman Dante O. Tinga, now a Member of this
Court.
We note, too, that petitioner Garcia has not adequately proven at this point that an
oligopoly does in fact exist in the form of the Big 3, and that the Big 3 have actually
engaged in oligopolistic practices. He merely cites (in his argument against the
applicability of res judicata) and relies on the facts and findings stated in the two prior
cases on oil deregulation. This calls to mind what former Chief Justice Panganiban said
in his Separate Opinion in the 1999 Garcia case:
Petitioner merely resurrects and relies heavily on the arguments, the statistics and the
proofs he submitted twoyears ago in the first oil deregulation case, Tatad v. Secretary of
the Department of Energy. Needless to state, those reasons were taken into
consideration in said case, and they indeed helped show the unconstitutionality of RA
8180. But exactly the same old grounds cannot continue to support petitioner’s present
allegation that the major oil companies -- Petron, Shell and Caltex -- persist to this date
in their oligopolistic practices, as a consequence of the current Oil Deregulation Law and
in violation of the Constitution. In brief, the legal cause and effect relationship has not
been amply shown. [Emphasis supplied.]
This observation is true in the present case as it was true in the 1999 Garcia case; the
petitioner has simply omitted the citation of facts, figures and statistics specifically
supporting his petition. To prove charges of continued overpricing or price-fixing, he
refers to data showing price adjustments of petroleum products for the period covering
February 8, 1997 to August 1, 1997. Insofar as R.A. No. 8479 is concerned, however,
these data are irrelevant, as they cover a period way before R.A. No. 8479 was
enacted.251avvphi1
Petitioner Garcia contends that the identity in the pricing patterns of the Big 3 confirms
the existence of an oligopoly and shows that they have colluded to engage in unlawful
cartel-like behaviour. His reasoning fails to persuade us. That the oil firms have the
same prices and change them at the same rate at the same time are not sufficient
evidence to conclude that collusion exists. An independent study on local oil prices
explains:
[W]hen products are highly substitutable with each other (or what economists call
"homogeneous products"), then firms will tend to set similar prices, especially when
there are many competing sellers. Otherwise, if one firm tried to set a price significantly
higher than the others, it would find itself losing customers to the others.26
Even assuming that the Big 3 have indeed colluded in fixing oil prices, this development
will not necessarily justify a declaration against the validity and constitutionality of
Section 19 of R.A. No. 8479. The remedy against the perceived failure of the Oil
Deregulation Law to combat cartelization is not to declare it invalid, but to set in motion
its anti-trust safeguards under Sections 11,27 12,28 and 13.29
Lis Mota
Lis Mota – the fourth requirement to satisfy before this Court will undertake judicial
review – means that the Court will not pass upon a question of unconstitutionality,
although properly presented, if the case can be disposed of on some other ground, such
as the application of the statute or the general law. The petitioner must be able to show
that the case cannot be legally resolved unless the constitutional question raised is
determined.30 This requirement is based on the rule that every law has in its favor the
presumption of constitutionality; 31 to justify its nullification, there must be a clear and
unequivocal breach of the Constitution, and not one that is doubtful, speculative, or
argumentative.
Petitioner Garcia argues against full deregulation implemented through the lifting of price
control, as it allows oligopoly, overpricing and price-fixing. R.A. No. 8479, however, does
not condone these acts; indeed, Section 11 (a) of the law expressly prohibits and
punishes cartelization, which is defined in the same section as "any agreement,
combination or concerted action by refiners, importers and/or dealers, or their
representatives, to fix prices, restrict outputs or divide markets, either by products or by
areas, or allocate markets, either by products or by areas, in restraint of trade or free
competition, including any contractual stipulation which prescribes pricing levels and
profit margins." This definition is broad enough to include the alleged acts of overpricing
or price-fixing by the Big 3. R.A. No. 8479 has provided, aside from prosecution for
cartelization, several other anti-trust mechanisms, including the enlarged scope of the
Department of Energy’s monitoring power and the creation of a Joint Task Force to
immediately act on complaints against unreasonable rise in the price of petroleum
products.32 Petitioner Garcia’s failure is that he failed to show that he resorted to these
measures before filing the instant petition. His belief that these oversight mechanisms
are unrealistic and insufficient does not permit disregard of these remedies.33
CONCLUSION
To summarize, we declare that the issues petitioner Garcia presented to this Court are
non-justiciable matters that preclude the Court from exercising its power of judicial
review. The immediate implementation of full deregulation of the local downstream oil
industry is a policy determination by Congress which this Court cannot overturn without
offending the Constitution and the principle of separation of powers. That the law failed
in its objectives because its adoption spawned the evils petitioner Garcia alludes to does
not warrant its nullification. In the words of Mr. Justice Leonardo A. Quisumbing in the
1999 Garcia case, "[a] calculus of fear and pessimism xxx does not justify the remedy
petitioner seeks: that we overturn a law enacted by Congress and approved by the Chief
Executive."34
WHEREFORE, we hereby DISMISS the petition. No pronouncements as to costs.
SO ORDERED.
PRESUMPTION OF CONSTITUTIONALITY
G.R. No. 152259 July 29, 2004
ALFREDO T. ROMUALDEZ, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN (Fifth Division) and the PEOPLE of the
PHILIPPINES, respondents.
DECISION
PANGANIBAN, J.:
Repetitive motions to invalidate or summarily terminate a criminal indictment prior to
plea and trial, however they may be named or identified -- whether as a motion to quash
or motion to dismiss or by any other nomenclature -- delay the administration of justice
and unduly burden the court system. Grounds not included in the first of such repetitive
motions are generally deemed waived and can no longer be used as bases of similar
motions subsequently filed.
Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential relatives
who "intervene, directly or indirectly, in any business, transaction, contract or application
with the Government." This provision is not vague or "impermissibly broad," because it
can easily be understood with the use of simple statutory construction. Neither may the
constitutionality of a criminal statute such as this be challenged on the basis of the
"overbreadth" and the "void-for-vagueness" doctrines, which apply only to free-speech
cases.
The Case
Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court, seeking to set
aside the November 20, 20012 and the March 1, 20023 Resolutions of the
Sandiganbayan in Criminal Case No. 13736. The first Resolution disposed thus:
"WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The
arraignment of the accused and the pre-trial of the case shall proceed as
scheduled."4
The second Resolution denied reconsideration.
The Facts
The facts of the case are narrated by the Sandiganbayan as follows:
"[The People of the Philippines], through the Presidential Commission on Good
Government (PCGG), filed on July 12, 1989 an information before [the anti-graft
court] charging the accused [with] violation of Section 5, Republic Act No. 3019,5 as
amended. The Information reads:
'That on or about and during the period from July 16, 1975 to July 29, 1975, in
Metro Manila, Philippines, and within the jurisdiction of [the Sandiganbayan],
said [petitioner], brother-in-law of Ferdinand E. Marcos, former President of
the Philippines, and therefore, related to the latter by affinity within the third
civil degree, did then and there wil[l]fully and unlawfully, and with evident bad
faith, for the purpose of promoting his self-interested [sic] and/or that of others,
intervene directly or indirectly, in a contract between the National Shipyard
and Steel Corporation (NASSCO), a government-owned and controlled
corporation and the Bataan Shipyard and Engineering Company (BASECO),
a private corporation, the majority stocks of which is owned by former
President Ferdinand E. Marcos, whereby the NASSCO sold, transferred and
conveyed to the BASECO its ownership and all its titles and interests over all
equipment and facilities including structures, buildings, shops, quarters,
houses, plants and expendable and semi-expendable assets, located at the
Engineer Island known as the Engineer Island Shops including some of its
equipment and machineries from Jose Panganiban, Camarines Norte needed
 by BASECO in its shipbuilding and ship repair program for the amount of
P5,000,000.00.
'Contrary to law.'
"On December 27, 1996, the accused filed his first 'MOTION TO DISMISS AND TO
DEFER ARRAIGNMENT' claiming that no valid preliminary investigation was
conducted in the instant case. He asserts that if a preliminary investigation could
be said to have been conducted, the same was null and void having been
undertaken by a biased and partial investigative body.
"On January 9, 1997, [the Sandiganbayan], through the First Division, issued an
order giving the accused fifteen days to file a Motion for Reinvestigation with the
Office of the Special Prosecutor.
"[Petitioner] questioned said order before the Supreme Court via a petition for
Certiorari and Prohibition with prayer for temporary restraining order. On January
21, 1998, the Supreme Court dismissed the petition for failure to show that [the
Sandiganbayan] committed grave abuse of discretion in issuing the assailed order.
"On November 9, 1998, the [petitioner] filed with the Office of the Special
Prosecutor a Motion to Quash.
"On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio U.
Tabanguil, manifested that the prosecution had already concluded the
reinvestigation of the case. He recommended the dismissal of the instant case.
Both the Deputy Special Prosecutor and the Special Prosecutor approved the
recommendation. However, Ombudsman Aniano A. Desierto disagreed and
directed the prosecutors to let the [petitioner] present his evidence in Court.
"Subsequently, [petitioner] filed on October 8, 1999 his second 'MOTION TO
QUASH AND TO DEFER ARRAIGNMENT'.
"On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit.
"On June 19, 2001, [the] accused filed a 'MOTION FOR LEAVE TO FILE MOTION
TO DISMISS'. On June 29, 2001, the [Sandiganbayan] admitted the motion and
admitted the attached (third) Motion to Dismiss.
"The [Motion to Dismiss] raise[d] the following grounds:
'I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF
[PETITIONER] WAS VIOLATED DURING THE PRELIMINARY
INVESTIGATION STAGE IN THE FOLLOWING WAYS:
'A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE
INSTANT CASE; AND
'B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A BIASED
AND PARTIAL INVESTIGATOR
'II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED
OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WAS
VIOLATED
'III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973
CONSTITUTION, [PETITIONER] IS IMMUNE FROM CRIMINAL
PROSECUTION
'IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY
PRESCRIPTION'"6
Ruling of the Sandiganbayan
The Sandiganbayan explained that all the grounds invoked by petitioner, except the third
one, had already been raised by him and passed upon in its previous Resolutions.7 In
resolving the third ground, the anti-graft court pointed out that Section 17 of the 1973
Constitution became effective only in 1981 when the basic law was amended. Since his
alleged illegal intervention had been committed on or about 1975, the amended
provision was inapplicable to him.8
In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan passed
upon the other grounds he had raised. It ruled that his right to a preliminary investigation
was not violated, because he had been granted a reinvestigation.9 It further held that his
right to be informed of the nature and cause of the accusation was not trampled upon,
either, inasmuch as the Information had set forth the essential elements of the offense
charged.10
Hence, this Petition.11
The Issues
In his Memorandum, petitioner assigns the following errors for our consideration:
"Whether or not the Honorable Sandiganbayan erred and gravely abused its
discretion amounting to lack of, or in excess of jurisdiction –
I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear and
incontrovertible evidence that:
A. Section 5 of Republic Act No. 3019 is unconstitutional because its
vagueness violates the due process right of an individual to be informed of the
nature and the cause of the accusation against him;
B. Section 5 of Republic Act No. 3019 is unconstitutional because it violates
the due process right of an individual to be presumed innocent until the
contrary is proved;
C. The constitutional right of petitioner x x x to be informed of the nature and
the cause of the accusation against him was violated;
D. The constitutional right to due process of law of petitioner x x x was
violated during the preliminary investigation stage in the following ways:
[i] No valid preliminary investigation was con-ducted for Criminal Case
No. 13736; and
[ii] The preliminary investigation was conducted by a biased and partial
investigator.
E. The criminal action or liability has been extinguished by prescription; and
F. Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner x x x
is immune from criminal prosecution.
And
II. In light of the foregoing, in denying petitioner['s] x x x right to equal protection of
 the laws."12
Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019 is
unconstitutional; (2) whether the Information is vague; (3) whether there was a valid
preliminary investigation; (4) whether the criminal action or liability has been
extinguished by prescription; and (5) whether petitioner is immune from criminal
prosecution under then Section 17 of Article VII of the 1973 Constitution.
The Court's Ruling
The Petition has no merit.
First Issue:
Constitutionality of Section 5,
Republic Act 3019
Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in the
Sandiganbayan through a Supplemental Motion to Dismiss. Attached to his December 7,
2001 Motion for Reconsideration of the Order denying his Motion to Dismiss was this
Supplemental Motion which was, in effect, his third motion to quash.13 We note that the
Petition for Certiorari before us challenges the denial of his original, not his
Supplemental, Motion to Dismiss.
Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could
have filed a motion for reconsideration of the denial. Had reconsideration been turned
down, the next proper remedy would have been either (1) a petition for certiorari14 -- if
there was grave abuse of discretion -- which should be filed within 60 days from notice of
the assailed order;15 or (2) to proceed to trial without prejudice to his right, if final
judgment is rendered against him, to raise the same questions before the proper
appellate court.16 But instead of availing himself of these remedies, he filed a "Motion to
Dismiss" on June 19, 2001.
Impropriety of
Repetitive Motions
There is no substantial distinction between a "motion to quash" and a "motion to
dismiss." Both pray for an identical relief, which is the dismissal of the case. Such
motions are employed to raise preliminary objections, so as to avoid the necessity of
proceeding to trial. A motion to quash is generally used in criminal proceedings to annul
a defective indictment. A motion to dismiss, the nomenclature ordinarily used in civil
proceedings, is aimed at summarily defeating a complaint. Thus, our Rules of Court use
the term "motion to quash" in criminal,17 and "motion to dismiss" in civil, proceedings.18
In the present case, however, both the "Motion to Quash" and the "Motion to Dismiss"
are anchored on basically the same grounds and pray for the same relief. The
hairsplitting distinction posited by petitioner does not really make a difference.
By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second motion to
quash. A party is not permitted to raise issues, whether similar or different, by installment.
The Rules abhor repetitive motions. Otherwise, there would be no end to preliminary
objections, and trial would never commence. A second motion to quash delays the
administration of justice and unduly burdens the courts. Moreover, Rule 117 provides
that grounds not raised in the first motion to quash are generally deemed waived.19
Petitioner's "Motion to Dismiss" violates this rule.
Constitutionality of
the Challenged Provision
If only for the foregoing procedural lapses, the Petition deserves to be dismissed outright.
However, given the importance of this case in curtailing graft and corruption, the Court
will nevertheless address the other issues on their merit. Petitioner challenges the
validity of Section 5 of Republic Act 3019, a penal statute, on the ground that the act
constituting the offense is allegedly vague and "impermissibly broad."
It is best to stress at the outset that the overbreadth20 and the vagueness21 doctrines
have special application only to free-speech cases. They are not appropriate for testing
the validity of penal statutes. Mr. Justice Vicente V. Mendoza explained the reason as
follows:
"A facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible 'chilling effect' upon protected speech. The theory is
that '[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity.' The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed
for this reason alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law cannot take chances
as in the area of free speech.
xxxxxxxxx
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they
are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute, the
established rule is that 'one to whom application of a statute is constitutional will not
be heard to attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might be
unconstitutional.' As has been pointed out, 'vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant.'"22(underscoring supplied)
"To this date, the Court has not declared any penal law unconstitutional on the
ground of ambiguity."23 While mentioned in passing in some cases, the
void-for-vagueness concept has yet to find direct application in our jurisdiction. In
Yu Cong Eng v. Trinidad,24 the Bookkeeping Act was found unconstitutional
because it violated the equal protection clause, not because it was vague. Adiong v.
Comelec25 decreed as void a mere Comelec Resolution, not a statute. Finally,
Santiago v. Comelec26 held that a portion of RA 6735 was unconstitutional because
of undue delegation of legislative powers, not because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal
of parties whose cases may not have even reached the courts. Such invalidation would
constitute a departure from the usual requirement of "actual case and controversy" and
permit decisions to be made in a sterile abstract context having no factual concreteness.
In Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these
words:27
"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required
line-by-line analysis of detailed statutes, x x x ordinarily results in a kind of case
that is wholly unsatisfactory for deciding constitutional questions, whichever way
they might be decided."
For this reason, generally disfavored is an on-its-face invalidation of statutes, described
as a "manifestly strong medicine" to be employed "sparingly and only as a last resort." In
determining the constitutionality of a statute, therefore, its provisions that have allegedly
been violated must be examined in the light of the conduct with which the defendant has
been charged.28
As conduct -- not speech -- is its object, the challenged provision must be examined only
"as applied" to the defendant, herein petitioner, and should not be declared
unconstitutional for overbreadth or vagueness.
The questioned provision reads as follows:
"Section 5. Prohibition on certain relatives. — It shall be unlawful for the spouse or
for any relative, by consanguinity or affinity, within the third civil degree, of the
President of the Philippines, the Vice-President of the Philippines, the President of
the Senate, or the Speaker of the House of Representatives, to intervene, directly
or indirectly, in any business, transaction, contract or application with the
Government: Provided, That this section shall not apply to any person who, prior to
the assumption of office of any of the above officials to whom he is related, has
been already dealing with the Government along the same line of business, nor to
any transaction, contract or application already existing or pending at the time of
such assumption of public office, nor to any application filed by him the approval of
which is not discretionary on the part of the official or officials concerned but
depends upon compliance with requisites provided by law, or rules or regulations
issued pursuant to law, nor to any act lawfully performed in an official capacity or in
the exercise of a profession."
Petitioner also claims that the phrase "to intervene directly or indirectly, in any business,
transaction, contract or application with the Government" is vague and violates his right
to be informed of the cause and nature of the accusation against him.29 He further
complains that the provision does not specify what acts are punishable under the term
intervene, and thus transgresses his right to be presumed innocent.30 We disagree.
Every statute is presumed valid.31 On the party challenging its validity weighs heavily the
onerous task of rebutting this presumption.32 Any reasonable doubt about the validity of
the law should be resolved in favor of its constitutionality.33 To doubt is to sustain, as
tersely put by Justice George Malcolm. In Garcia v. Executive Secretary,34 the rationale
for the presumption of constitutionality was explained by this Court thus:
"The policy of the courts is to avoid ruling on constitutional questions and to
presume that the acts of the political departments are valid in the absence of a
clear and unmistakable showing to the contrary. To doubt is to sustain. This
presumption is based on the doctrine of separation of powers which enjoins upon
each department a becoming respect for the acts of the other departments. The
theory is that as the joint act of Congress and the President of the Philippines, a
law has been carefully studied and determined to be in accordance with the
fundamental law before it was finally enacted."35
In the instant case, petitioner has miserably failed to overcome such presumption. This
Court has previously laid down the test for determining whether a statute is vague, as
follows:
"x x x [A] statute establishing a criminal offense must define the offense with
sufficient definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that species of
legislation that is utterly vague on its face, i.e., that which cannot be clarified either
by a saving clause or by construction.
"A statute or act may be said to be vague when it lacks comprehensible standards
that men of common intelligence must necessarily guess at its meaning and differ
in its application. In such instance, the statute is repugnant to the Constitution in
two (2) respects - it violates due process for failure to accord persons, especially
the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.36 But the doctrine does not apply as
against legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those that are
apparently ambiguous yet fairly applicable to certain types of activities. The first
may be 'saved' by proper construction, while no challenge may be mounted as
against the second whenever directed against such activities.37 With more reason,
the doctrine cannot be invoked where the assailed statute is clear and free from
ambiguity, as in this case.
"The test in determining whether a criminal statute is void for uncertainty is whether
the language conveys a sufficiently definite warning as to the proscribed conduct
when measured by common understanding and practice.38 It must be stressed,
however, that the 'vagueness' doctrine merely requires a reasonable degree of
certainty for the statute to be upheld - not absolute precision or mathematical
exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous
specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more
explicit in its wordings or detailed in its provisions, especially where, because of the
nature of the act, it would be impossible to provide all the details in advance as in
all other statutes."39
A simpler test was decreed in Dans v. People,40 in which the Court said that there was
nothing vague about a penal law that adequately answered the basic query "What is the
violation?"41 Anything beyond -- the hows and the whys -- are evidentiary matters that
the law itself cannot possibly disclose, in view of the uniqueness of every case.42
The question "What is the violation?" is sufficiently answered by Section 5 of RA 3019,
as follows:
1. The offender is a spouse or any relative by consanguinity or affinity within the
 third civil degree of the President of the Philippines, the Vice-President of the
Philippines, the President of the Senate, or the Speaker of the House of
Representatives; and
2. The offender intervened directly or indirectly in any business, transaction,
contract or application with the government.
Applicability of
Statutory Construction
As to petitioner's claim that the term intervene is vague, this Court agrees with the Office
of the Solicitor General that the word can easily be understood through simple statutory
construction. The absence of a statutory definition of a term used in a statute will not
render the law "void for vagueness," if the meaning can be determined through the
judicial function of construction.43 Elementary is the principle that words should be
construed in their ordinary and usual meaning.
"x x x. A statute is not rendered uncertain and void merely because general terms
are used therein, or because of the employment of terms without defining them;44
much less do we have to define every word we use. Besides, there is no positive
constitutional or statutory command requiring the legislature to define each and
every word in an enactment. Congress is not restricted in the form of expression of
its will, and its inability to so define the words employed in a statute will not
necessarily result in the vagueness or ambiguity of the law so long as the
legislative will is clear, or at least, can be gathered from the whole act x x x.
"x x x [I]t is a well-settled principle of legal hermeneutics that words of a statute will
be interpreted in their natural, plain and ordinary acceptation and signification,45
unless it is evident that the legislature intended a technical or special legal meaning
to those words.46 The intention of the lawmakers - who are, ordinarily, untrained
philologists and lexicographers - to use statutory phraseology in such a manner is
always presumed."47
The term intervene should therefore be understood in its ordinary acceptation, which is
to "to come between."48Criminally liable is anyone covered in the enumeration of Section
5 of RA 3019 -- any person who intervenes in any manner in any business, transaction,
contract or application with the government. As we have explained, it is impossible for
the law to provide in advance details of how such acts of intervention could be
performed. But the courts may pass upon those details once trial is concluded. Thus, the
alleged vagueness of intervene is not a ground to quash the information prior to the
commencement of the trial.
In sum, the Court holds that the challenged provision is not vague, and that in any event,
the "overbreath" and "void for vagueness" doctrines are not applicable to this case.
Second Issue:
Allegedly Vague Information
Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further
contends that the Information itself is also unconstitutionally vague, because it does not
specify the acts of intervention that he supposedly performed.49 Again, we disagree.
When allegations in the information are vague or indefinite, the remedy of the accused is
not a motion to quash, but a motion for a bill of particulars.50 The pertinent provision in
the Rules of Court is Section 9 of Rule 116, which we quote:
"Section 9. Bill of particulars. -- The accused may, before arraignment, move for a
bill of particulars to enable him properly to plead and prepare for trial. The motion
shall specify the alleged defects of the complaint or information and the details
desired."
The rule merely requires the information to describe the offense with sufficient
particularity as to apprise the accused of what they are being charged with and to enable
the court to pronounce judgment. 51 The particularity must be such that persons of
ordinary intelligence may immediately know what is meant by the information.52
While it is fundamental that every element of the offense must be alleged in the
information,53 matters of evidence -- as distinguished from the facts essential to the
nature of the offense -- need not be averred.54 Whatever facts and circumstances must
necessarily be alleged are to be determined by reference to the definition and the
essential elements of the specific crimes.55
In the instant case, a cursory reading of the Information shows that the elements of a
violation of Section 5 of RA 3019 have been stated sufficiently. Likewise, the allegations
describe the offense committed by petitioner with such particularity as to enable him to
prepare an intelligent defense. Details of the acts he committed are evidentiary matters
that need not be alleged in the Information.
Third Issue:
Preliminary Investigation
Clearly, petitioner already brought the issue of lack of preliminary investigation when he
questioned before this Court in GR No. 128317 the Sandiganbayan's Order giving him
15 days to file a Motion for Reinvestigation with the Office of the Special Prosecutor.56
Citing Cojuangco v. Presidential Commission on Good Government,57 he undauntedly
averred that he was deprived of his right to a preliminary investigation, because the
PCGG acted both as complainant and as investigator.58
In the case cited above, this Court declared that while PCGG had the power to conduct a
preliminary investigation, the latter could not do so with the "cold neutrality of an
impartial judge" in cases in which it was the agency that had gathered evidence and
subsequently filed the complaint.59 On that basis, this Court nullified the preliminary
investigation conducted by PCGG and directed the transmittal of the records to the
Ombudsman for appropriate action.
It is readily apparent that Cojuangco does not support the quashal of the Information
against herein petitioner. True, the PCGG initiated the present Complaint against him;
hence, it could not properly conduct the preliminary investigation. However, he was
accorded his rights -- the Sandiganbayan suspended the trial and afforded him a
reinvestigation by the Ombudsman. The procedure outlined in Cojuangco was thus
followed.
The Sandiganbayan's actions are in accord also with Raro v. Sandiganbayan,60 which
held that the failure to conduct a valid preliminary investigation would not warrant the
quashal of an information. If the information has already been filed, the proper procedure
is for the Sandiganbayan to hold the trial in abeyance while the preliminary investigation
is being conducted or completed.61
Fourth Issue:
Prescription
The issue of prescription was the principal basis of the Motion to Quash filed by
petitioner with the Sandiganbayan on October 8, 1999.62 Such issue should be
disregarded at this stage, since he failed to challenge its ruling debunking his Motion
within the 60-day period for the filing of a petition for certiorari. A party may not
circumvent this rule by filing a subsequent motion that raises the same issue and the
same arguments.
Furthermore, it is easy to see why this argument being raised by petitioner is utterly
unmeritorious. He points out that according to the Information, the offense was
committed "during the period from July 16, 1975 to July 29, 1975." He argues that when
the Information was filed on July 12, 1989,63 prescription had already set in, because the
prescriptive period for a violation of Republic Act No. 3019 is only ten (10) years from the
time the offense was allegedly committed. The increase of this prescriptive period to
fifteen (15) years took effect only on March 16, 1982, upon the enactment of Batas
Pambansa Blg. 195.64
Act No. 3326, as amended,65 governs the prescription of offenses penalized by special
laws. Its pertinent provision reads:
"Sec. 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same not be known at the time, from the discovery
thereof and the institution of judicial proceedings for its investigation and
punishment.
"The prescription shall be interrupted when proceedings are instituted against the
guilty person, and shall begin to run again if the proceedings are dismissed for
reasons not constituting jeopardy."
Consistent with the provision quoted above, this Court has previously reckoned the
prescriptive period of cases involving RA 3019 (committed prior to the February 1986
EDSA Revolution) from the discovery of the violation.66 In Republic v. Desierto, the Court
explained:
"This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad
Hoc Fact-Finding Committee on Behest Loans v. Desierto. In the said recent case,
the Board of Directors of the Philippine Seeds, Inc. and Development Bank of the
Philippines were charged with violation of paragraphs (e) and (g) of Section 3 of RA
No. 3019, by the Presidential Ad Hoc Fact-Finding Committee on Behest Loans,
created by then President Fidel V. Ramos to investigate and to recover the
so-called 'Behest Loans', where the Philippine Government guaranteed several
foreign loans to corporations and entities connected with the former President
Marcos. x x x In holding that the case had not yet prescribed, this Court ruled that:
'In the present case, it was well-nigh impossible for the State, the aggrieved
party, to have known the violations of RA No. 3019 at the time the questioned
transactions were made because, as alleged, the public officials concerned
connived or conspired with the 'beneficiaries of the loans.' Thus, we agree
with the COMMITTEE that the prescriptive period for the offenses with which
the respondents in OMB-0-96-0968 were charged should be computed from
the discovery of the commission thereof and not from the day of such
commission.
xxx xxx xxx
'People v. Duque is more in point, and what was stated there stands
reiteration: In the nature of things, acts made criminal by special laws are
frequently not immoral or obviously criminal in themselves; for this reason, the
applicable statute requires that if the violation of the special law is not known
at the time, the prescription begins to run only from the discovery thereof, i.e.,
discovery of the unlawful nature of the constitutive act or acts.' (Italics
supplied)
"There are striking parallelisms between the said Behest Loans Case and the
present one which lead us to apply the ruling of the former to the latter. First, both
cases arose out of seemingly innocent business transactions; second, both were
'discovered' only after the government created bodies to investigate these
anomalous transactions; third, both involve prosecutions for violations of RA No.
3019; and, fourth, in both cases, it was sufficiently raised in the pleadings that the
respondents conspired and connived with one another in order to keep the alleged
violations hidden from public scrutiny.
"This Court's pronouncement in the case of Domingo v. Sandiganbayan is quite
relevant and instructive as to the date when the discovery of the offense should be
reckoned, thus:
'In the present case, it was well-nigh impossible for the government, the
aggrieved party, to have known the violations committed at the time the
questioned transactions were made because both parties to the transactions
were allegedly in conspiracy to perpetuate fraud against the government. The
alleged anomalous transactions could only have been discovered after the
February 1986 Revolution when one of the original respondents, then
President Ferdinand Marcos, was ousted from office. Prior to said date, no
person would have dared to question the legality or propriety of those
transactions. Hence, the counting of the prescriptive period would commence
from the date of discovery of the offense, which could have been between
February 1986 after the EDSA Revolution and 26 May 1987 when the
initiatory complaint was filed.'"67
The above pronouncement is squarely applicable to the present case. The general rule
that prescription shall begin to run from the day of the commission of the crime cannot
apply to the present case. It is not legally prudent to charge the State, the aggrieved
party, with knowledge of the violation of RA 3019 at the time the alleged intervention was
made. The accused is the late President Ferdinand E. Marcos' brother-in-law. He was
charged with intervening in a sale involving a private corporation, the majority stocks of
which was allegedly owned by President Marcos.
Prior to February 1986, no person was expected to have seriously dared question the
legality of the sale or would even have thought of investigating petitioner's alleged
involvement in the transaction. It was only after the creation68of PCGG69 and its
exhaustive investigations that the alleged crime was discovered. This led to the initiation
on November 29, 1988 of a Complaint against former President Marcos and petitioner
for violation of the Anti-Graft and Corrupt Practices Act. Consequently, the filing of the
Information on July 12, 1989 was well within the prescriptive period of ten years from the
discovery of the offense.
Fifth Issue
Immunity from Prosecution
Petitioner argues that he enjoys derivative immunity, because he allegedly served as a
high-ranking naval officer -- specifically, as naval aide-de-camp -- of former President
Marcos.70 He relies on Section 17 of Article VII of the 1973 Constitution, as amended,
which we quote:
"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.
"x x x xxx x x x"
As the Sandiganbayan aptly pointed out, the above provision is not applicable to
petitioner because the immunity amendment became effective only in 1981 while the
alleged crime happened in 1975.
In Estrada v. Desierto,71 this Court exhaustively traced the origin of executive immunity in
order to determine the extent of its applicability. We explained therein that executive
immunity applied only during the incumbency of a President. It could not be used to
shield a non-sitting President from prosecution for alleged criminal acts done while
sitting in office. The reasoning of petitioner must therefore fail, since he derives his
immunity from one who is no longer sitting as President. Verily, the felonious acts of
public officials and their close relatives "are not acts of the State, and the officer who
acts illegally is not acting as such but stands on the same footing as any other
trespasser."
In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its
discretion in issuing the assailed Resolutions.72 On the contrary, it acted prudently, in
accordance with law and jurisprudence.
WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the
Sandiganbayan AFFIRMED. Costs against petitioner.
SO ORDERED.
ADVISORY OPINIONS
G.R. No. 125532 July 10, 1998
SECRETARY TEOFISTO GUINGONA, JR.; STATE PROSECUTORS JUDE ROMANO,
LEAH ARMAMENTO, MANUEL TORREVILLAS, JOAQUIN ESCOVAR, MENRADO
CORPUS; the NATIONAL BUREAU OF INVESTIGATION; and POTENCIANO
ROQUE, petitioners,
vs.
COURT OF APPEALS and RODOLFO PINEDA, respondents.
PANGANIBAN, J.:
This case is an offshoot of the investigation conducted by the government in the last
quarter of 1995, which delved into the alleged participation of national and local officials
in jueteng and other forms of illegal gambling. Although the Court of Appeals upheld the
admission into the Witness Protection Program of Potenciano A. Roque, who claimed
personal knowledge of such gambling activities, the secretary of justice nonetheless
challenges the side opinion of the appellate court that the testimony of the witness must,
as a condition precedent to his admission into said Program, be shown to be capable of
substantial corroboration in its material points. The justice secretary claims that such
corroboration need not be demonstrated prior to or simultaneous with the witness'
admission into the Program, as long as such requirement can be demonstrated when he
actually testifies in court. However, inasmuch as Roque has already been admitted into
the Program and has actually finished testifying, the issue presented by petitioners has
become moot. Thus, any judgment that this Court may render on the instant petition
would be merely an academic disquisition on a hypothetical problem. Until it can be
shown that an actual controversy exists, courts have no jurisdiction to render a binding
decision.
The Case
This is a petition for review on certiorari to partially set aside the June 28, 1996 Decision
of the Court of Appeals, 1which disposed as follows: 2
WHEREFORE, premises considered, the petition is hereby DISMISSED for
want of merit, and the injunction issued against respondent judges from
hearing the criminal actions against petitioner is hereby LIFTED.
SO ORDERED.
The Court of Appeals upheld the justice secretary's denial on January 11, 1996 of private
respondent's "Petition for Reconsideration of Admittance of Potenciano A. Roque to the
Witness Protection Program."
Although Respondent Court ruled in favor of the government, herein petitioners
nonetheless assail the following portion of the said Decision:
. . . From the explicit terms of the statute, it is at once apparent that the
presence of such corroborative evidence is sine qua non to a witness'
admission into the Program. Being in the nature of a condition precedent [to]
his admission into the Program, the existence of such corroborative evidence
must be shown at the time his application for admission is being evaluated.
The Antecedent Facts
Petitioners relate the antecedent facts of this case as follows: 3
Sometime in the last quarter of 1995, the National Bureau of Investigation
(NBI) conducted an investigation on the alleged participation and involvement
of national and local government officials in "jueteng" and other forms of
illegal gambling.
The case was also the subject of a legislative inquiry/investigation by both the
Senate and the House of Representatives.
In November 1995, one Potenciano Roque, claiming to be an eyewitness to
the networking of . . . national and local politicians and gambling lords, sought
admission into the Government's "Witness Protection, Security and Benefit
Program." Allegedly, he gained first-hand information in his capacity as
Chairman of the Task Force Anti-Gambling (TFAG) during the term of former
President Corazon C. Aquino until his resignation in 1989. He also revealed
that he and members of his family were in danger of being liquidated, facing
as he did the formidable world of corruption with a well-entrenched hold on
Philippine social, political and economic systems.
After a thorough evaluation of his qualifications, convinced of his compliance
with the requirements of Republic Act No. 6981, otherwise known as the
"Witness Protection, Security and Benefit Act," the Department of Justice
admitted Roque to the program, providing him a monthly allowance,
temporary shelter and personal and security protection during witness duty.
On November 30, 1995, Roque executed a sworn statement before NBI
Agents Sixto M. Burgos, Jr. and Nelson M. Bartolome, alleging that during his
stint as Chairman of the Task Force Anti-Gambling (TFAG), several gambling
lords, including private respondent Rodolfo Pineda, and certain politicians
offered him money and other valuable considerations, which he accepted,
upon his agreement to cease conducting raids on their respective gambling
operations (Annex "B").
On the basis of Roque's sworn statement, the sworn statement and
supplemental affidavit of one Angelito H. Sanchez, and the sworn statement
of Gen. Lorenzo Mateo (Annexes "C," "D" and "E"), then NBI Director Mariano
M. Mison forwarded the result of their investigation on the "jueteng" scam to
the Department of Justice (DOJ), recommending the filing of the following
charges against Pineda and other persons . . . .
xxx xxx xxx
The DOJ Task Force on Illegal Gambling (composed of the
petitioner-prosecutors), created by petitioner Secretary Teofisto Guingona on
November 24, 1995 (Annex "F"), conducted a preliminary investigation of the
case and subpoenaed all the respondents in I.S. No. 95-774, therein requiring
them to submit their counter-affidavits by December 22, 1995.
On December 21, 1995, Roque executed a supplemental sworn statement
relative to I.S. No. 95-774, clarifying some of his statements in his first
affidavit (Annex "G"). Consequently, the December 22, 1995 setting was
cancelled and reset to January 8, 1996 to give Pineda and other respondents
time to refute the charges contained in the supplemental sworn statement.
On January 5, 1996, Pineda filed a "Petition for Reconsideration of
Admittance of Potenciano A. Roque to the Witness Protection Program,"
which was denied by petitioner Secretary in a letter-reply dated January 11,
1996 (Annexes "H" and "I"). On January 23, 1996, Pineda filed a Petition for
Certiorari, Prohibition and Mandamus with Application for Temporary
Restraining Order and Preliminary Injunction with the respondent Court of
Appeals.
xxx xxx xxx
In the meantime, petitioner-prosecutors proceeded with their preliminary
investigation, and on February 2, 1996, they issued a resolution finding
probable cause to charge private respondent Pineda with several offenses
(Annex "K"). On February 5, 1996, three (3) Informations for corruption of
public officials were filed against him in the Manila and Pasig City Trial Courts
(Annexes "L," "M" and "N"). He was subsequently arraigned on February 28,
1996 in the Regional Trial Court, Branch 7 of the City of Manila presided by
Judge Enrico Lanzanes, and on March 14, 1996 in the Regional Trial Court,
Branch 168, of Pasig City, presided by Judge Benjamin Pelayo.
On March 19, 1996, the Court of Appeals came up with a writ of preliminary
injunction enjoining both trial courts from hearing the criminal actions in the
meantime.
The Ruling of the Court of Appeals
In its Decision, Respondent Court addressed mainly the issue of whether the secretary
of justice acted in excess of his jurisdiction (a) in admitting Petitioner Roque into the
Program and (b) in excluding him from the Informations filed against private respondent.
Private respondent contended that Roque's admission was illegal on two grounds: first,
his testimony could not be substantially corroborated in its material points; and second,
he appeared to be the most guilty or at least more guilty than private respondent, insofar
as the crimes charged in the Informations were concerned.
Respondent Court also ruled that RA 6981 contemplates two kinds of witnesses: (a) a
witness who has perceived or has knowledge of, or information on, the commission of a
crime under Section 3; and (b) aparticeps criminis or a participant in the crime under
Section 10.
Based on his sworn statements, Roque participated in the commission of the crimes
imputed to private respondent (corruption of public officials) by accepting bribe money.
Necessarily, his admission to the Program fell under Section 10, which requires that he
should not appear to be the most guilty of the imputed crimes. Respondent Court found
that private respondent sought to bribe him several times to prevent him from conducting
raids on private respondent's gambling operations. Such "passive participation" in the
crimes did not make him more guilty than private respondent.
On the first issue, Respondent Court initially ruled that, by express provision of Sections
3 and 10, the requirement of corroboration is a condition precedent to admission into the
Program. A contrary interpretation would only sanction the squandering of the various
benefits of the Program on one who might later be adjudged disqualified from admission
for lack of evidence to corroborate his testimony.
However, in the same breath, Respondent Court upheld herein petitioners' alternative
position that substantial corroboration was nevertheless actually provided by Angelito
Sanchez' and retired Gen. Lorenzo M. Mateo's testimonies. Hence, it disposed in favor
of the government.
Subsequently, this petition was filed. 4
The Issue
The lone issue raised by this petition is worded as follows:
Whether or not a witness' testimony requires prior or simultaneous
corroboration at the time he is admitted into the witness protection, security
and benefit program. 5

As noted earlier, this petition is unusual and unique. Despite ruling in their favor,
Respondent Court is assailed by petitioners for opining that admission to the Program
requires prior or simultaneous corroboration of the material points in the witness'
testimony.
Respondent Court and private respondent are of the opinion that Sections 3 (b) & 10 (d)
of RA 6981 expressly require that corroboration must already exist at the time of the
witness' application as a prerequisite to admission into the Program. RA 6981 pertinently
provides:
Sec. 10. State Witness. Any person who has participated in the commission of
a crime and desires to be a witness for the State, can apply and, if qualified as
determined in this Act and by the Department, shall be admitted into the
Program whenever the following are present:
xxx xxx xxx
(d) his testimony can be substantially corroborated on its material points;
xxx xxx xxx
On the other hand, petitioners contend that said provisions merely require that the
testimony of the state witness seeking admission into the Program "can be substantially
corroborated" or is "capable of corroboration." So long as corroboration can be obtained
when he testifies in court, he satisfies the requirement that "his testimony can be
substantially corroborated on its material points."
The Court's Ruling
The petition must fail, because the facts and the issue raised by petitioners do not
warrant the exercise of judicial power.
No Actual Controversy
Without going into the merits of the case, the Court finds the petition fundamentally
defective. The Constitution provides that judicial power "includes the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and
enforceable." 6 According to Fr. Joaquin Bernas, a noted constitutionalist, courts
are mandated to settle disputes between real conflicting parties through the
application of the law. 7 Judicial review, which is merely an aspect of judicial
power, demands the following: (1) there must be an actual case calling for the
exercise of judicial power; (2) the question must be ripe for adjudication; 8 and (3)
the person challenging must have "standing"; that is, he has personal and
substantial interest in the case, such that he has sustained or will sustain direct
injury. 9
The first requisite is that there must be before a court an actual case calling for
the exercise of judicial power. Courts have no authority to pass upon issues
through advisory opinions or to resolve hypothetical or feigned problems 10 or
friendly suits collusively arranged between parties without real adverse interests.
11
Courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. 12 As a condition precedent to the
exercise of judicial power, an actual controversy between litigants must first exist.
13
An actual case or controversy exists when there is a conflict of legal rights or an
assertion of opposite legal claims, which can be resolved on the basis of existing
law and jurisprudence. A justiciable controversy is distinguished from a
hypothetical or abstract difference or dispute, in that the former involves a
definite and concrete dispute touching on the legal relations of parties having
adverse legal interests. A justiciable controversy admits of specific relief through
a decree that is conclusive in character, whereas an opinion only advises what the
law would be upon a hypothetical state of facts. 14
Thus, no actual controversy was found in Abbas vs. Commission on Elections 15
regarding the provision in the Organic Act, which mandates that should there be any
conflict between national law and Islamic Law, the Shari'ah courts should apply the
former. In that case, the petitioner maintained that since the Islamic Law (Shari'ah) was
derived from the Koran, which makes it part of divine law, the Shari'ah may not be
subjected to any "man-made" national law. This Court dismissed petitioner's argument
because, as enshrined in the Constitution, judicial power includes the duty to settle
actual controversies involving rights which are legally demandable and enforceable. No
actual controversy between real litigants existed, because no conflicting claims involving
the application of national law were presented. This being so, the Supreme Court
refused to rule on a merely perceived potential conflict between the provisions of the
Muslim Code and those of the national law.
In contrast, the Court held in Sabello vs. Department of Education, Culture and Sports 16
that there was a justiciable controversy where the issue involved was whether
petitioner — after he was given an absolute pardon — merited reappointment to
the position he had held prior to his conviction, that of Elementary Principal I. The
Court said that such dispute was not hypothetical or abstract, for there was a
definite and concrete controversy touching on the legal relations of parties and
admitting of specific relief through a court decree that was conclusive in character.
That case did not call for mere opinion or advice, but for affirmative relief.
Closely related to the requirement of an "actual case," Bernas continues, is the
second requirement that the question is "ripe" for adjudication. A question is ripe
for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it. Thus, in PACU vs. Secretary of Education, 17 the
Court declined to pass judgment on the question of the validity of Section 3 of Act
No. 2706, which provided that before a private school may be opened to the public,
it must first obtain a permit from the secretary of education, because all the
petitioning schools had permits to operate and were actually operating, and none
of them claimed that the secretary had threatened to revoke their permit.
In Tan vs. Macapagal, 18 the Court said that Petitioner Gonzales "had the good
sense to wait" until after the enactment of the statute [Rep. Act No. 4913 (1967)]
requiring the submission to the electorate of certain proposed amendments to the
Constitution [Resolution Nos. 1 and 3 of Congress as a constituent body (1967)]
before he could file his suit. It was only when this condition was met that the
matter became ripe for adjudication; prior to that stage, the judiciary had to keep
its hands off.
The doctrine of separation of powers calls for each branch of government to be
left alone to discharge its duties as it sees fit. Being one such branch, the judiciary,
Justice Laurel asserted, "will neither direct nor restrain executive [or legislative
action] . . . ." 19 The legislative and the executive branches are not allowed to seek
its advice on what to do or not to do; thus, judicial inquiry has to be postponed in
the meantime. Before a court may enter the picture, a prerequisite is that
something has been accomplished or performed by either branch. Then may it
pass on the validity of what has been done but, then again, only "when . . .
properly challenged in an appropriate legal proceeding." 20
In the case at bar, it is at once apparent that petitioners are not requesting that
this Court reverse the ruling of the appellate court and disallow the admission in
evidence of Respondent Roque's testimony, inasmuch as the assailed Decision
does not appear to be in conflict with any of their present claims. Petitioners filed
this suit out of fear that the assailed Decision would frustrate the purpose of said
law, which is to encourage witnesses to come out and testify. But their
apprehension is neither justified nor exemplified by this particular case. A mere
apprehension does not give rise to a justiciable controversy.
After finding no grave abuse of discretion on the part of the government prosecutors,
Respondent Court allowed the admission of Roque into the Program. In fact, Roque had
already testified in court against the private respondent. Thus, the propriety of Roque's
admission to the Program is already a moot and academic issue that clearly does not
warrant judicial review.
Manifestly, this petition involves neither any right that was violated nor any claims that
conflict. In fact, no affirmative relief is being sought in this case. The Court concurs with
the opinion of counsel for private respondent that this action is a "purely academic
exercise," which has no relevance to the criminal cases against Respondent Pineda.
After the assailed Decision had been rendered, trial in those cases proceeded in earnest,
and Roque testified in all of them. Said counsel filed his Memorandum only to satisfy his
"academic interest on how the State machinery will deal with witnesses who are
admittedly guilty of the crimes but are discharged to testify against their co-accused." 21
Petitioners failed not only to present an actual controversy, but also to show a case ripe
for adjudication. Hence, any resolution that this Court might make in this case would
constitute an attempt at abstraction that can only lead to barren legal dialectics and
sterile conclusions unrelated to actualities. 22
An Executive Function
In the present petition, the government is in effect asking this Court to render an
advisory opinion on what the government prosecutors should do — when, how and
whom to grant or to deny admission into the Program. To accede to it is tantamount to an
incursion into the functions of the executive department. From their arguments stated
above, both sides have obviously missed this crucial point, which is succinctly stated in
Webb vs. De Leon: 23
It is urged that they [the provisions of RA 6918] constitute ". . . an intrusion
into judicial prerogative for it is only the court which has the power under the
Rules on Criminal Procedure to discharge an accused as a state witness."
The argument is based on Section 9, Rule 119 which gives the court the
prerogative to approve the discharge of an accused to be a state witness.
Petitioner's argument lacks appeal for it lies on the faulty assumption that the
decision whom to prosecute is a judicial function, the sole prerogative of
courts and beyond executive and legislative interference. In truth, the
prosecution of crimes appertains to the executive department of government
whose principal power and responsibility is to see that our laws are faithfully
executed. A necessary component of this power to execute our laws is the
right to prosecute their violators. The right to prosecute vests the prosecutor
with a wide range of discretion — the discretion of whether, what and whom to
charge, the exercise of which depends on a smorgasbord of factors which are
best appreciated by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. 6981 vesting in the Department of
Justice the power to determine who can qualify as a witness in the program
and who shall be granted immunity from prosecution. Section 9 of Rule 119
does not support the proposition that the power to choose who shall be a
state witness is an inherent judicial prerogative. Under this provision, the
court is given the power to discharge a state witness only because it has
already acquired jurisdiction over the crime and the accused. The discharge
of an accused is part of the exercise of jurisdiction but is not a recognition of
an inherent judicial function. Moreover, the Rules of Court have never been
interpreted to be beyond change by legislation designed to improve the
administration of our justice system. [Emphasis ours]
Simply stated, the decision on whether to prosecute and whom to indict is executive in
character. Only when an information, charging two or more persons with a certain
offense, has already been filed in court will Rule 119, Section 9 of the Rules of Court,
come into play, viz.:
Sec. 9. Discharge of one of several defendants to be witness for the
prosecution. — When two or more persons are charged with the commission
of a certain offense, the competent court, at any time before they have
entered upon their defense, may direct one or more of them to be discharged
with the latter's consent that he or they may be witnesses for the government
when in the judgment of the court:
(a) There is absolute necessity for the testimony of the defendant whose
discharge is requested;
(b) There is no other direct evidence available for the proper prosecution of
the offense committed, except the testimony of said defendant;
(c) The testimony of said defendant can be substantially corroborated in its
material points;
(d) Said defendant does not appear to be the most guilty;
(e) Said defendant has not at any time been convicted of any offense
involving moral turpitude.
In the present case, Roque was not one of those accused in the Informations filed
by the government prosecutors. Rule 119, Section 9, is therefore clearly not
applicable.
A resort to the progenitors of RA 6981 will yield the same result. Although Presidential
Decree 1731 and National Emergency Memorandum Order No. 26 state only when
immunity from suit attaches to a witness, they do not specify who are qualified for
admission into the Program. PD 1731, otherwise known as a law "Providing for Rewards
and Incentives to Government Witnesses and Informants and for Other Purposes"
provides:
Sec. 4. Any such informants or witnesses who shall testify, or provide vital
information, regarding the existence or activity of a group involved in the
commission of crimes against national security or public order, or of an
organized/syndicated crime or crime group, and/or the culpability of individual
members thereof in accordance with this Decree shall, upon recommendation
of the state prosecutor, fiscal or military lawyer, as approved by the Secretary
of National Defense or the Secretary of Justice, as the case may be, be
immune from criminal prosecution for his participation or involvement in any
such criminal activity which is the subject of the investigation or prosecution,
in addition to the benefits under Sec. 2 hereof: Provided, that, immunity from
criminal prosecution shall, in the case of a witness offering to testify, attach
only upon his actually testifying in court in accordance with his undertaking as
accepted by the state prosecutor, fiscal, or military lawyer: Provided, further,
that the following conditions are complied with:
xxx xxx xxx
c. That such testimony or information can be substantially corroborated in its
material points;
xxx xxx xxx
The same tenor was adopted in National Emergency Memorandum Order No. 26 signed
by former President Corazon C. Aquino, Section 5 (c) of which provides:
c. Immunity from Criminal Prosecution. — This applies to the witness
participation or involvement in the criminal case in which his testimony is
necessary and may be availed of only upon his actually testifying in court in
accordance with his undertaking, and provided that:
xxx xxx xxx
(3) Such testimony or information can be substantially corroborated in its
material points;
xxx xxx xxx
One may validly infer from the foregoing that the government prosecutor is afforded
much leeway in choosing whom to admit into the Program. Such inference is in harmony
with the basic principle that this is an executive function.
RA 6981 is a much needed penal reform law that could help the government in curbing
crime by providing an antidote, as it were, to the usual reluctance of witnesses to testify.
The Department of Justice has clearly explained the rationale for said law: 24
Witnesses, for fear of reprisal and economic dislocation, usually refuse to
appear and testify in the investigation/prosecution of criminal
complaints/cases. Because of such refusal, criminal complaints/cases have
been dismissed for insufficiency and/or lack of evidence. For a more effective
administration of criminal justice, there was a necessity to pass a law
protecting witnesses and granting them certain rights and benefits to ensure
their appearance in investigative bodies/courts.
This Court should then leave to the executive branch the decision on how best to
administer the Witness Protection Program. Unless an actual controversy arises, we
should not jump the gun and unnecessarily intervene in this executive function.
Closer Scrutiny of the Assailed Decision
Finally, an accurate reading of the assailed Decision will further enlighten petitioners as
to its true message. Respondent Court did sustain Roque's admission into the Program
— even as it held that the first contention of petitioners was untenable — based on the
latter's alternative argument that Roque's testimony was sufficiently corroborated by that
of General Mateo. While Respondent Court insisted that corroboration must exist prior to
or simultaneous with Roque's admission into the Program, it sanctioned subsequent
compliance to cure this defect. The reason for this is found in the penultimate paragraph
of the Decision, in which Respondent Court categorically stated that it found no manifest
abuse of discretion in the petitioners' action. There is no quarrel with this point. Until a
more opportune occasion involving a concrete violation of RA 6981 arises, the Court has
no jurisdiction to rule on the issue raised by petitioners.
WHEREFORE, the petition is hereby DENIED.
MOOTNESS
G.R. No. 108399 July 31, 1997
RAFAEL M. ALUNAN III, in his capacity as Secretary of the Department of Interior
and Local Government (DILG), the BOARD OF ELECTION SUPERVISORS
composed of Atty. RUBEN M. RAMIREZ, Atty. RAFAELITO GARAYBLAS, and Atty.
ENRIQUE C. ROA, GUILLERMINA RUSTIA, in her capacity as Director of the
Barangay Bureau, City Treasurer Atty. ANTONIO ACEBEDO, Budget Officer
EUFEMIA DOMINGUEZ, all of the City Government of Manila, petitioners,
vs.
ROBERT MIRASOL, NORMAN NOEL T. SANGUYA, ROBERT DE JOYA, ARNEL R.
LORENZO, MARY GRACE ARIAS, RAQUEL L. DOMINGUEZ, LOURDES ASENCIO,
FERDINAND ROXAS, MA. ALBERTINA RICAFORT, and BALAIS M. LOURICH, and
the HONORABLE WILFREDO D. REYES, Presiding Judge of the Regional Trial
Court, Branch 36, Metro Manila, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision dated January 19, 1993 of the
Regional Trial Court of Manila (Branch 36),1 nullifying an order of the Department of
Interior and Local Government (DILG), which in effect cancelled the general elections for
the Sangguniang Kabataan (SK) slated on December 4, 1992 in the City of Manila, on
the ground that the elections previously held on May 26, 1990 served the purpose of the
first elections for the SK under the Local Government Code of 1991 (R.A. No. 7160).
Section 423 of the Code provides for a SK in every barangay, to be composed of a
chairman, seven (7) members, a secretary, and a treasurer. Section 532(a) provides that
the first elections for the SK shall be held thirty (30) days after the next local elections.
The Code took effect on January 1, 1992.
The first local elections under the Code were held on May 11, 1992. Accordingly, on
August 27, 1992, the Commission on Elections issued Resolution No. 2499, providing
guidelines for the holding of the general elections for the SK on September 30, 1992 The
guidelines placed the SK elections under the direct control and supervision of the DILG,
with the technical assistance of the COMELEC.2 After two postponements, the elections
were finally scheduled on December 4, 1992.
Accordingly, registration in the six districts of Manila was conducted. A total of 152,363
youngsters, aged 15 to 21 years old, registered, 15,749 of them filing certificates of
candidacies. The City Council passed the necessary appropriations for the elections.
On September 18, 1992, however, the DILG, through then Secretary Rafael M. Alunan
III, issued a letter-resolution "exemption" the City of Manila from holding elections for the
SK on the ground that the elections previously held on May 26, 1990 were to be
considered the first under the newly-enacted Local Government Code. The DILG acted
on a letter of Joshue R. Santiago, acting president of the KB City Federation of Manila
and a member of City Council of Manila, which called attention to the fact that in the City
of Manila elections for the Kabataang Barangay (the precursor of the Sangguniang
Kabataan) had previously been held on May 26, 1990. In its resolution, the DILG stated:
[A] close examination of . . . RA 7160 would readily reveal the intention of the
legislature to exempt from the forthcoming Sangguniang Kabataan elections those
kabataang barangay chapters which may have conducted their elections within the
period of January 1, 1988 and January 1, 1992 under BP 337. Manifestly the term
of office of those elected KB officials have been correspondingly extended to
coincide with the term of office of those who may be elected under RA 7160.
On November 27, 1992 private respondents, claiming to represent the 24,000 members
of the Katipunan ng Kabataan, filed a petition for certiorari and mandamus in the RTC of
Manila to set aside the resolution of the DILG. They argued that petitioner Secretary of
Interior and Local Government had no power to amend the resolutions of the COMELEC
calling for general elections for SKs and that the DILG resolution in question denied
them the equal protection of the laws.
On November 27, 1992, the trial court, through Executive Judge, now COMELEC
Chairman, Bernardo P. Pardo, issued an injunction, ordering petitioners "to desist from
implementing the order of the respondent Secretary dated September 18, 1992, . . . until
further orders of the Court." On the same day, he ordered petitioners "to perform the
specified pre-election activities in order to implement Resolution No. 2499 dated August
27, 1992 of the Commission on Elections providing for the holding of a general election
of the Sangguniang Kabataan on December 4, 1992 simultaneously in every barangay
throughout the country."
The case was subsequently reraffled to Branch 36 of the same court. On January 19,
1993, the new judge, Hon. Wilfredo D. Reyes, rendered a decision, holding that (1) the
DILG had no power to "exempt" the City of Manila from holding SK elections on
December 4, 1992 because under Art. IX, C, §2(1) of the Constitution the power to
enforce and administer "all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall" is vested solely in the COMELEC; (2) the
COMELEC had already in effect determined that there had been no previous elections
for KB by calling for general elections for SK officers in every barangay without
exception; and (3) the "exemption" of the City of Manila was violative of the equal
protection clause of the Constitution because, according to the DILG's records, in 5,000
barangays KB elections were held between January 1, 1988 and January 1, 1992 but
only in the City of Manila, where there were 897 barangays, was there no elections held
on December 4, 1992.
Petitioners sought this review on certiorari. They insist that the City of Manila, having
already conducted elections for the KB on May 26, 1990, was exempted from holding
elections on December 4, 1992. In support of their contention, they cite §532(d) of the
Local Government Code of 1991, which provides that:
All seats reserved for the pederasyon ng mga sangguniang kabataan in the
different sangguniang shall be deemed vacant until such time that the sangguniang
kabataan chairmen shall have been elected and the respective pederasyon
presidents have been selected: Provided, That, elections for the kabataang
barangay conducted under Batas Pambansa Blg. 337 at any time between January
1, 1988 and January 1, 1992 shall be considered as the first elections provided for
in this Code. The term of office of the kabataang barangay officials elected within
the said period shall be extended correspondingly to coincide with the term of office
of those elected under this Code. (emphasis added)
They maintain that the Secretary of the DILG has authority to determine whether the City
of Manila came within the exception clause of §532(d) so as to be exempt from holding
the elections on December 4, 1992.
The preliminary question is whether the holding of the second elections on May 13,
19963 rendered this case moot and academic. There are two questions raised in this
case. The first is whether the Secretary of Interior and Local Government can "exempt" a
local government unit from holding elections for SK officers on December 4, 1992 and
the second is whether the COMELEC can provide that "the Department of Interior and
Local Government shall have direct control and supervision over the election of
sangguniang kabataan with the technical assistance by the Commission on Elections."
We hold that this case is not moot and that it is in fact necessary to decide the issues
raised by the parties. For one thing, doubt may be cast on the validity of the acts of those
elected in the May 26, 1990 KB elections in Manila because this Court enjoined the
enforcement of the decision of the trial court and these officers continued in office until
May 13, 1996. For another, this case comes within the rule that courts will decide a
question otherwise moot and academic if it is "capable of repetition, yet evading
review."4 For the question whether the COMELEC can validly vest in the DILG the
control and supervision of SK elections is likely to arise in connection with every SK
election and yet the question may not be decided before the date of such elections.
In the Southern Pacific Terminal case, where the rule was first articulated, appellants
were ordered by the Interstate Commerce Commission to cease and desist from
granting a shipper what the ICC perceived to be preferences and advantages with
respect to wharfage charges. The cease and desist order was for a period of about two
years, from September 1, 1908 (subsequently extended to November 15), but the U.S.
Supreme Court had not been able to hand down its decision by the time the cease and
desist order expired. The case was decided only on February 20, 1911, more than two
years after the order had expired. Hence, it was contended that the case had thereby
become moot and the appeal should be dismissed. In rejecting this contention, the Court
held:
The question involved in the orders of the Interstate Commerce Commission are
usually continuing (as are manifestly those in the case at bar), and these
 considerations ought not to be, as they might be, defeated, by short-term orders,
capable of repetition, yet evading review, and at one time the government, and at
another time the carriers, have their rights determined by the Commission without a
chance of redress.5
In Roe v. Wade,6 petitioner, a pregnant woman, brought suit in 1970 challenging
anti-abortion statutes of Texas and Georgia on the ground that she had a constitutional
right to terminate her pregnancy at least within the first trimester. The case was not
decided until 1973 when she was no longer pregnant. But the U.S. Supreme Court
refused to dismiss the case as moot. It was explained: "[W]hen, as here, pregnancy is a
significant fact the litigation, the normal 266-day human gestation period is so short that
the pregnancy will come to term before the usual appellate process is complete. If that
termination makes a case moot, pregnancy litigation seldom will survive. Our laws
should not be that rigid. Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be 'capable of repetition, yet evading review.'"7
We thus reach the merits of the questions raised in this case. The first question is
whether then DILG Secretary Rafael M. Alunan III had authority to determine whether
under §532(d) of the Local Government Code, the City of Manila was required to hold its
first elections for SK. As already stated, petitioners sustain the affirmative side of the
proposition. On the other hand, respondents argue that this is a power which Art. IX, C,
§2(1) of the Constitution vests in the COMELEC. Respondents further argue that, by
mandating that elections for the SK be held on December 4, 1992 "in every barangay,"
the COMELEC in effect determined that there had been no elections for the KB
previously held in the City of Manila.
We find the petition to be meritorious.
First. As already stated, by §4 of Resolution No. 2499, the COMELEC placed the SK
elections under the direct control and supervision of the DILG. Contrary to respondents'
contention, this did not contravene Art. IX, C, §2(1) of the Constitution which provides
that the COMELEC shall have the power to "enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
recall." Elections for SK officers are not subject to the supervision of the COMELEC in
the same way that, as we have recently held, contests involving elections of SK officials
do not fall within the jurisdiction of the COMELEC. In Mercado v. Board of Election
Supervisors,8 it was contended that
COMELEC Resolution No. 2499 is null and void because: (a) it prescribes a
separate set of rules for the election of the SK Chairman different from and
inconsistent with that set forth in the Omnibus Election Code, thereby contravening
Section 2, Article 1 of the said Code which explicitly provides that "it shall govern all
elections of public officers", and, (b) it constitutes a total, absolute, and complete
abdication by the COMELEC of its constitutionally and statutorily mandated duty to
enforce and administer all election laws as provided for in Section 2(1), Article IX-C
of the Constitution; Section 52, Article VIII of the Omnibus Election Code; and
Section 2, Chapter 1, Subtitle C, Title 1, Book V of the 1987 Administrative Code.9
Rejecting this contention, this Court, through Justice Davide, held:
Section 252 of the Omnibus Election Code and that portion of paragraph (2),
Section 2, Article IX-C of the Constitution on the COMELEC's exclusive appellate
jurisdiction over contest involving elective barangay officials refer to the elective
barangay officials under the pertinent laws in force at the time the Omnibus
Election Code was enacted and upon the ratification of the Constitution. That law
was B.P. Blg. 337, otherwise known as the Local Government Code, and the
elective barangay officials referred to were the punong barangay and the six
sangguniang bayan members. They were to be elected by those qualified to
exercise the right of suffrage. They are also the same officers referred to by the
provisions of the Omnibus Election Code of the Philippines on election of barangay
officials. Metropolitan and municipal trial courts had exclusive original jurisdiction
over contests relating to their election. The decisions of these courts were
appealable to the Regional Trial Courts.
xxx xxx xxx
In the light of the foregoing, it is indisputable that contests involving elections of SK
(formerly KB) officials do not fall within Section 252 of the Omnibus Election Code
and paragraph 2, Section 2, Article IX-C of the Constitution and that no law in effect
prior to the ratification of the Constitution had made the SK chairman an elective
barangay officials. His being an ex-officio member of the sangguniang barangay
does not make him one for the law specifically provides who are its elective
members, viz., the punong barangay and the seven regular sangguniang barangay
members who are elected at large by those who are qualified to exercise the right
of suffrage under Article V of the Constitution and who are duly registered voters of
the barangay.10
The choice of the DILG for the task in question was appropriate and was in line with the
legislative policy evident in several statutes. Thus, P.D. No. 684 (April 15, 1975), in
creating Kabataang Barangays in every barangay throughout the country, provided in §6
that the "Secretary of Local Government and Community Development shall promulgate
such rules and regulations as may be deemed necessary to effectively implement the
provisions of this Decree." Again, in 1985 Proclamation No. 2421 of the President of the
Philippines, in calling for the general elections of the Kabataang Barangay on July 13-14,
1985, tasked the then Ministry of Local Government, the Ministry of Education, Culture
and Sports, and the Commission on Elections to assist the Kabataang Barangay in the
conduct of the elections. On the other hand, in a Memorandum Circular dated March 7,
1988, President Corazon C. Aquino directed the Secretary of Local Government to issue
the necessary rules and regulations for effecting the representation of the Kabataang
Barangay, among other sectors, in the legislative bodies of the local government units.
The role of the COMELEC in the 1992 elections for SK officers was by no means
inconsequential. DILG supervision was to be exercised within the framework of detailed
and comprehensive rules embodied in Resolution No. 2499 of the COMELEC. What was
left to the DILG to perform was the enforcement of the rules.
Second. It is contended that, in its resolution in question, the COMELEC did not name
the barangays which, because they had conducted kabataang barangay elections
between January 1, 1988 and January 1, 1992, were not included in the SK elections to
be held on December 4, 1992. That these barangays were precisely to be determined by
the DILG is, however, fairly inferable from the authority given to the DILG to supervise
the conduct of the elections. Since §532(d) provided for kabataang barangay officials
whose term of office was extended beyond 1992, the authority to supervise the conduct
of elections in that year must necessarily be deemed to include the authority to
determine which kabataang barangay would not be included in the 1992 elections.
The authority granted was nothing more than the ascertainment of a fact, namely,
whether between January 1, 1988 and January 1, 1992 elections had been held in a
given kabataang barangay. If elections had been conducted, then no new elections had
to be held on December 4, 1992 since by virtue of §532(d) the term of office of the
kabataang barangay officials so elected was "extended correspondingly to coincide with
the term of office of those elected under [the Local Government Code of 1991]." In doing
this, the Secretary of Interior and Local Government was to act merely as the agent of
the legislative department, to determine and declare the event upon which its expressed
will was to take effect.11 There was no undue delegation of legislative power but only of
the discretion as to the execution of a law. That this is constitutionally permissible is the
teaching of our cases.12
Third. Respondents claim, however, that the May 26, 1990 KB elections in Manila were
void because (a) they were called at the instance of then Mayor Gemiliano C. Lopez who
did not have authority to do so and (b) it was not held under COMELEC supervision.
The 1990 elections for the Kabataang Barangay were called by then Manila Mayor
Gemiliano C. Lopez, Jr., who in his Executive Order No. 21 dated April 25, 1990 stated:
WHEREAS, the Kabataang Barangay as an organization provided for under Batas
Pambansa Bilang 337, has been practically dormant since the advent of the
present national administration;
WHEREAS, there is an urgent need to involve the youth in the affairs and
undertaking of the government to ensure the participation of all sectors of our
population in the task of nation building;
WHEREAS, the last elections for the Kabataang Barangay officers were held in
November 1985 yet, which is over their three years term of office;
WHEREAS, most of the present crop of KB officers are way past the age limit
provided for under the law;
xxx xxx xxx
The elections were actually held on May 26, 1990 in the 897 barangays of Manila. Later,
on June 30, 1990, KB City Federation elections were conducted.
It was precisely to foreclose any question regarding the validity of KB elections held in
the aftermath of the EDSA revolution and upon the effectivity of the new Local
Government Code that the exception clause of §532(d) was inserted. The proceedings
of the Bicameral Conference Committee which drafted the Code show the following:13
CHAIRMAN DE PEDRO: Isa-cite na lang ko ano iyong title o chapter o section, ha!
HON. LINA: . . .
Page 436, lines 13 to 14 delete within eighteen months prior to December 31, 1990,
and in lieu thereof, insert from 1988 up to the effectivity of the Code. The
rationale. . . .
CHAIRMAN DE PEDRO: How should it be read?
HON. LINA: It will read as follows: "Provided however, that the Local Government
Units which have conducted elections for the Kabataang Barangay as provided for,
in Batas Pambansa Bilang 337, up to the effectivity. . . ."
CHAIRMAN DE PEDRO: So, any deletion from the word "within," ha, up to. . . .
HON. LINA: Remove the words, the phrase, "within eighteen months prior to
December 31, 1990, and insert from 1988 up to the effectivity of this Code."
CHAIRMAN DE PEDRO: From?
HON. LINA: From 1988 up to the effectivity of this Code. Kasi meron nang mga
election, eh, na ginawa, eh. There are five thousand barangays, based on the
record of the DILG, out of forty thousand, imaging that, na nag-conduct na ng
election nila based on the KB Constitution and By-Laws, and they're sitting already,
now if we do not recognize that, mag[ka]karoon sila ng question.
CHAIRMAN DE PEDRO: Accepted, Mr. Chairman.
Section §532(d) may thus be deemed to be a curative law. Curative laws, which in
essence are retrospective in effect, are enacted to validate acts done which otherwise
would be invalid under existing laws, by considering them as having complied with the
existing laws. Such laws are recognized in this jurisdiction.14
Fourth. It is finally contended that the exemption of the barangays of the City of Manila
from the requirement to hold elections for SK officers on December 4, 1992 would deny
the youth voters in those barangays of the equal protection of laws. Respondent claim
that only in barangays in the City of Manila, which then numbered 897, were elections
for SK not held in 1992 on the ground that between January 1, 1988 and January 1,
1992 there had already been SK elections held, when, according to petitioners' own
evidence, during that period, SK elections had actually been conducted in 5,000
barangays.
Whether this claim is true cannot be ascertained from the records of this case. Merely
showing that there were 5,000 barangays which similarly held KB elections between
January 1, 1988 and January 1, 1992 does not prove that despite that fact these same
barangays were permitted to hold elections on December 4, 1992. For one thing,
according to the Manila Bulletin issue of November 18, 1992 (p. 9), 568 barangays in the
Province of Bulacan did not have SK elections on December 4, 1992 either, because
they already had elections between January 1, 1988 and January 1, 1992. For another,
even assuming that only barangays in Manila were not permitted to hold SK elections on
December 4, 1992 while the rest of the 5,000 barangays were allowed even if KB
elections had already been held there before, this fact does not give the youth voters in
the 897 Manila barangays ground for complaint because what the other barangays did
was contrary to law. There is no discrimination here.
In People v. Vera15 this Court struck down the Probation Law because it permitted
unequal application of its benefits by making its applicability depend on the decision of
provincial governments to appropriate or not to appropriate funds for the salaries of
probation officers, with the result that those not disposed to allow the benefits of
probations to be enjoyed by their inhabitants could simply omit to provide for the salaries
of probation officers. The difference between that case and the one at bar lies in the fact
that what youth voters in the other barangays might have been allowed was not a right
which was denied to youth voters in Manila. If those barangays were not entitled to have
SK elections on December 4, 1992 but nevertheless were allowed to have such
elections, that fact did not mean those in Manila should similarly have been allowed to
conduct elections on December 4, 1992 because the fact was that they already had their
own, just two years before on May 26, 1990. Respondents' equal protection argument
violates the dictum that one wrong does not make another wrong right.
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 36 is
REVERSED and the case filed against petitioner by private respondents is DISMISSED.
SO ORDERED.
G.R. No. 200238 November 20, 2012
PHILIPPINE SAVINGS BANK (PSBANK) and PASCUAL M. GARCIA III, as
representative of Philippine Savings Bank and in his personal capacity, Petitioners,
vs.
SENATE IMPEACHMENT COURT, consisting of the senators of the republic of the
philippines acting as senator judges, namely: JUAN PONCE ENRILE, JINGGOY
EJERCITO ESTRADA, VICENTE C. SOTTO III, ALAN PETER S. CAYETANO,
EDGARDO J. ANGARA, JOKER P. ARROYO, PIA S. CAYETANO, FRANKLIN M.
DRILON, FRANCIS G. ESCUDERO, TEOFISTO GUINGONA III, GREGORIO B.
HONASAN II, PANFILO M. LACSON, MANUEL M. LAPID, LOREN B. LEGARDA,
FERDINAND R. MARCOS, JR., SERGIO R. OSMENA III, FRANCIS "KIKO"
PANGILINAN, AQUILINO PIMENTEL III, RALPH G. RECTO, RAMON REVILLA, JR.,
ANTONIO F. TRILLANES IV, MANNY VILLAR; and THE HONORABLE MEMBERS
OF THE PROSECUTION PANEL OF THE HOUSE OF REPRESENTATIVES,
Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
Petitioners Philippine Savings Bank (PSBank) and Pascual M. Garcia III, as President of
PSBank, filed a Petition for Certiorari and Prohibition seeking to nullity and set aside the
Resolution1 of respondent Senate of the Republic of the Philippines, sitting as an
Impeachment Court, which granted the prosecution's requests for subpoena duces
tecum ad testificandum2 to PSBank and/or its representatives requiring them to testify
and produce before the Impeachment Court documents relative to the foreign currency
accounts that were alleged to belong to then Suprerpe Court Chief Justice Renato C.
Corona.
On November 5, 2012, and during the pendency of this petition, petitioners filed a
Motion with Leave of Court to Withdraw the Petition3 averring that subsequent events
have overtaken the petition and that, with the termination of the impeachment
proceedings against former Chief Justice Corona, they are no longer faced with the
dilemma of either violating Republic Act No. 6426 (RA 6426) or being held in contempt of
court for refusing to disclose the details of the subject foreign currency deposits.
It is well-settled that courts will not determine questions that have become moot and
academic because there is no longer any justiciable controversy to speak of. The
judgment will not serve any useful purpose or have any practical legal effect because, in
the nature of things, it cannot be enforced.4 In Gancho-on v. Secretary of Labor and
Employment,5 the Court ruled:
It is a rule of universal application that courts of justice constituted to pass upon
substantial rights will not consider questions in which no actual interests are involved;
they decline jurisdiction of moot cases. And where the issue has become moot and
academic, there is no justiciable controversy, so that a declaration thereon would be of
no practical use or value. There is no actual substantial relief to which petitioners would
be entitled and which would be negated by the dismissal of the petition. (Citations
omitted)
Indeed, the main issue of whether the Impeachment Court acted arbitrarily when it
issued the assailed subpoena to obtain information concerning the subject foreign
currency deposits notwithstanding the confidentiality of such deposits under RA 6426
has been overtaken by events. The supervening conviction of Chief Justice Corona on
May 29, 2012, as well as his execution of a waiver against the confidentiality of all his
bank accounts, whether in peso or foreign currency, has rendered the present petition
moot and academic.
On the basis of the foregoing, the Court finds it appropriate to abstain from passing upon
the merits of this case where legal relief is no longer needed nor called for.1âwphi1
WHEREFORE, the petition is DISMISSED for having become moot and academic and
the temporary restraining order issued by the Court on February 9, 2012 is LIFTED.
G.R. No. 191988 August 31, 2010
ATTY. EVILLO C. PORMENTO, Petitioner,
vs.
JOSEPH "ERAP" EJERCITO ESTRADA and COMMISSION ON ELECTIONS,
Respondents.
RESOLUTION
CORONA, C.J.:
What is the proper interpretation of the following provision of Section 4, Article VII of the
Constitution: "[t]he President shall not be eligible for any reelection?"
The novelty and complexity of the constitutional issue involved in this case present a
temptation that magistrates, lawyers, legal scholars and law students alike would find
hard to resist. However, prudence dictates that this Court exercise judicial restraint
where the issue before it has already been mooted by subsequent events. More
importantly, the constitutional requirement of the existence of a "case" or an "actual
controversy" for the proper exercise of the power of judicial review constrains us to
refuse the allure of making a grand pronouncement that, in the end, will amount to
nothing but a non-binding opinion.
The petition asks whether private respondent Joseph Ejercito Estrada is covered by the
ban on the President from "any reelection." Private respondent was elected President of
the Republic of the Philippines in the general elections held on May 11, 1998. He sought
the presidency again in the general elections held on May 10, 2010. Petitioner Atty.
Evillo C. Pormento opposed private respondent’s candidacy and filed a petition for
disqualification. However, his petition was denied by the Second Division of public
respondent Commission on Elections (COMELEC).1 His motion for reconsideration was
subsequently denied by the COMELEC en banc.2
Petitioner filed the instant petition for certiorari3 on May 7, 2010. However, under the
Rules of Court, the filing of such petition would not stay the execution of the judgment,
final order or resolution of the COMELEC that is sought to be reviewed.4 Besides,
petitioner did not even pray for the issuance of a temporary restraining order or writ of
preliminary injunction. Hence, private respondent was able to participate as a candidate
for the position of President in the May 10, 2010 elections where he garnered the
second highest number of votes.51avvphi1
Private respondent was not elected President the second time he ran. Since the issue
on the proper interpretation of the phrase "any reelection" will be premised on a person’s
second (whether immediate or not) election as President, there is no case or
controversy to be resolved in this case. No live conflict of legal rights exists.6 There is in
this case no definite, concrete, real or substantial controversy that touches on the legal
relations of parties having adverse legal interests.7 No specific relief may conclusively be
decreed upon by this Court in this case that will benefit any of the parties herein.8 As
such, one of the essential requisites for the exercise of the power of judicial review, the
existence of an actual case or controversy, is sorely lacking in this case.
As a rule, this Court may only adjudicate actual, ongoing controversies.9 The Court is not
empowered to decide moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the result as to the thing in issue in the case before it.10
In other words, when a case is moot, it becomes non-justiciable.11
An action is considered "moot" when it no longer presents a justiciable controversy
because the issues involved have become academic or dead or when the matter in
dispute has already been resolved and hence, one is not entitled to judicial intervention
unless the issue is likely to be raised again between the parties. There is nothing for the
court to resolve as the determination thereof has been overtaken by subsequent
events.12
Assuming an actual case or controversy existed prior to the proclamation of a President
who has been duly elected in the May 10, 2010 elections, the same is no longer true
today. Following the results of that elections, private respondent was not elected
President for the second time. Thus, any discussion of his "reelection" will simply be
hypothetical and speculative. It will serve no useful or practical purpose.
Accordingly, the petition is denied due course and is hereby DISMISSED.