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Republic of the Philippines In the latter part of October, 1949, the Philippine Government, through

SUPREME COURT the Rural Progress Administration, bought two estates known as
Manila Buenavista and Tambobong for the sums of P4,500,000 and P500,000,
respectively. Of the first sum, P1,000,000 was paid to Ernest H. Burt, a
EN BANC nonresident American, thru his attorney-in-fact in the Philippines, the
Associated Estates, Inc., represented by Jean L. Arnault, for alleged
G.R. No. L-3820 July 18, 1950 interest of the said Burt in the Buenavista Estate. The second sum of
P500,000 was all paid to the same Ernest H. Burt through his other
attorney-in-fact, the North Manila Development Co., Inc., also
JEAN L. ARNAULT, petitioner,
represented by Jean L. Arnault, for the alleged interest of the said Burt in
vs.
the Tambobong Estate.
LEON NAZARENO, Sergeant-at-arms, Philippine Senate, and
EUSTAQUIO BALAGTAS, Director of Prisons,respondents.
The original owner of the Buenavista Estate was the San Juan de Dios
Hospital. The Philippine Government held a 25-year lease contract on
J.C. Orendain, Augusto Revilla, and Eduardo Arboleda for petitioner.
said estate, with an option to purchase it for P3,000,000 within the same
Office of the Solicitor General Felix Bautista Angelo, Lorenzo Sumulong,
period of 25 years counted from January 1, 1939. The occupation
Lorenzo Tañada, and Vicente J. Francisco for respondents.
Republic of the Philippines purported to exercise that option by tendering
to the owner the sum of P3,000,000 and, upon its rejection, by depositing
OZAETA, J.: it in court on June 21, 1944, together with the accrued rentals amounting
to P3224,000. Since 1939 the Government has remained in possession
This is an original petition for habeas corpus to relieve the petitioner from of the estate.
his confinement in the New Bilibid Prison to which he has been
committed by virtue of a resolution adopted by the Senate on May 15, On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista
1950, which reads as follows: Estate for P5,000,000 to Ernest H. Burt, who made a down payment of
P10,000 only and agreed to pay P5000,000 within one year and the
Whereas, Jean L. Arnault refused to reveal the name of the remainder in annual installments of P500,000 each, with the stipulation
person to whom he gave the P440,000, as well as answer other that failure on his part to make any of said payments would cause the
pertinent questions related to the said amount; Now, therefore, be forfeiture of his down payment of P10,000 and would entitle the Hospital
it. to rescind to sale to him. Aside from the down payment of P10,000, Burt
has made no other payment on account of the purchase price of said
Resolved, that for his refusal to reveal the name of the person to estate.
whom he gave the P440,000 Jean L. Arnault be committed to the
custody of the Sergeant-at-Arms and imprisoned in the New The original owner of the Tambobong Estate was the Philippine Trust
Bilibid Prison, Muntinlupa, Rizal, until discharged by further order Company. On May 14, 1946, the Philippine Trust Company sold estate
of the Senate or by the special committee created by Senate for the sum of P1,200,000 to Ernest H. Burt, who paid P10,000 down and
Resolution No. 8, such discharge to be ordered when he shall promise to pay P90,000 within nine months and the balance of
have purged the contempt by revealing to the Senate or to the P1,100,000 in ten successive installments of P110,000 each. The nine-
said special committee the name of the person to whom he gave month period within which to pay the first installment of P90,000 expired
the P440,000, as well as answer other pertinent questions in on February 14, 1947, without Burt's having paid the said or any other
connection therewith. amount then or afterwards. On September 4, 1947, the Philippine Trust
Company sold, conveyed, and delivered the Tambobong Estate to the
The facts that gave rise to the adoption of said resolution, insofar as Rural Progress Administration by an absolute deed of sale in
pertinent here, may be briefly stated as follows: consideration of the sum of P750,000. On February 5, 1948, the Rural
Progress Administration made, under article 1504 of the Civil Code, a
notarial demand upon Burt for the resolution and cancellation of his WHEREAS, it is reported that the Philippine Government did not
contract of purchase with the Philippine Trust Company due to his failure have to pay a single centavo for the Tambobong Estate as it was
to pay the installment of P90,000 within the period of nine months. already practically owned by virtue of a deed of sale from the
Subsequently the Court of First Instance of Rizal ordered the cancellation Philippine Trust Company dated September 3, 194, for seven
of Burt's certificate of title and the issuance of a new one in the name of hundred and fifty thousand pesos, and by virtue of the recission
the Rural Progress Administration, from which order he appealed to the of the contract through which Ernest H. Burt had an interest in the
Supreme Court.1 estate; Now, therefore, be it.

It was in the face of the antecedents sketched in the last three preceding RESOLVED, That a Special Committee, be, as it hereby is,
paragraphs that the Philippine Government, through the Secretary of created, composed of five members to be appointed by the
Justice as Chairman of the Board of Directors of the Rural Progress President of the Senate to investigate the Buenavista and
Administration and as Chairman of the Board of Directors of the Tambobong Estate deals. It shall be the duty of the said
Philippine National Bank, from which the money was borrowed, Committee to determine whether the said purchase was honest,
accomplished the purchase of the two estates in the latter part of valid, and proper and whether the price involved in the deal was
October, 1949, as stated at the outset. fair and just, the parties responsible therefor, and any other facts
the Committee may deem proper in the premises. Said
On February 27, 1950, the Senate adopted its Resolution No. 8, which Committee shall have the power to conduct public hearings;
reads as follows: issue subpoena or subpoena duces tecum to compel the
attendance of witnesses or the production of documents before it;
RESOLUTION CREATING A SPECIAL COMMITTEE TO and may require any official or employee of any bureau, office,
INVESTIGATE THE BUENAVISTA AND THE TAMBOBONG branch, subdivision, agency, or instrumentality of the Government
ESTATES DEAL. to assist or otherwise cooperate with the Special Committee in
the performance of its functions and duties. Said Committee shall
submit its report of findings and recommendations within two
WHEREAS, it is reported that the Philippine government, through
weeks from the adoption of this Resolution.
the Rural Progress Administration, has bought the Buenavista
and the Tambobong Estates for the aggregate sum of five million
pesos; The special committee created by the above resolution called and
examined various witnesses, among the most important of whom was the
herein petitioner, Jean L. Arnault. An intriguing question which the
WHEREAS, it is reported that under the decision of the Supreme
committee sought to resolve was that involved in the apparent
Court dated October 31, 1949, the Buenavista Estate could have
unnecessariness and irregularity of the Government's paying to Burt the
been bought for three million pesos by virtue of a contract entered
total sum of P1,500,000 for his alleged interest of only P20,000 in the two
into between the San Juan de Dios Hospital and Philippine
estates, which he seemed to have forfeited anyway long before October,
Government in 1939;
1949. The committee sought to determine who were responsible for and
who benefited from the transaction at the expense of the Government.
WHEREAS, it is even alleged that the Philippine Government did
not have to purchase the Buenavista Estate because the
Arnault testified that two checks payable to Burt aggregating P1,500,000
occupation government had made tender of payment in the
were delivered to him on the afternoon of October 29, 1949; that on the
amount of three million pesos, Japanese currency, which fact is
same date he opened a new account in the name of Ernest H. Burt with
believed sufficient to vest title of Ownership in the Republic of the
the Philippine National Bank in which he deposited the two checks
Philippines pursuant to decisions of the Supreme Court
aggregating P1,500,000; and that on the same occasion he draw on said
sustaining the validity of payments made in Japanese military
account two checks; one for P500,000, which he transferred to the
notes during the occupation;
account of the Associated Agencies, Inc., with the Philippine National
Bank, and another for P440,000 payable to cash, which he himself
cashed. It was the desire of the committee to determine the ultimate The CHAIRMAN. The whole amount of P440,000?
recipient of this sum of P440,000 that gave rise to the present case. Mr. ARNAULT. Yes.
The CHAIRMAN. Who was that certain person to whom you
At first the petitioner claimed before the Committee: delivered these P440,000 which you cashed on October 29,
Mr. ARNAULT (reading from a note). Mr. Chairman, for questions 1949?
involving the disposition of funds, I take the position that the Mr. ARNAULT. I don't remember the name; he was a
transactions were legal, that no laws were being violated, and representative of Burt.
that all requisites had been complied with. Here also I acted in a The CHAIRMAN. That representative of Burt to whom you
purely functional capacity of representative. I beg to be excused delivered the P440,000 was a Filipino?
from making answer which might later be used against me. I have Mr. ARNAULT. I don't know.
been assured that it is my constitutional right to refuse to The CHAIRMAN. You do not remember the name of that
incriminate myself, and I am certain that the Honorable Members representative of Burt to whom you delivered this big amount of
of this Committee, who, I understand, are lawyers, will see the P440,000?
justness of my position. Mr. ARNAULT. I am not sure; I do not remember the name.
At as subsequent session of the committee (March 16) Senator De Vera, The CHAIRMAN. That certain person who represented Burt to
a member of the committee, interrogated him as follows: whom you delivered the big amount on October 29, 1949, gave
Senator DE VERA. Now these transactions, according to your you a receipt for the amount?
own typewritten statement, were legal? Mr. ARNAULT. No.
Mr. ARNAULT. I believe so. The CHAIRMAN. Neither did you ask a receipt?
Senator DE VERA. And the disposition of that fund involved, Mr. ARNAULT. I didn't ask.
according to your own statement, did not violate any law? The CHAIRMAN. And why did you give that certain person,
Mr. ARNAULT. I believe so. representative of Burt, this big amount of P440,000 which forms
xxx xxx xxx part of the P1-½ million paid to Burt?
Senator DE VERA. So that if the funds were disposed of in such Mr. ARNAULT. Because I have instructions to that effect.
a manner that no laws were violated, how is it that when you were The CHAIRMAN. Who gave you the instruction?
asked by the Committee to tell what steps you took to have this Mr. ARNAULT. Burt.
money delivered to Burt, you refused to answer the questions, The CHAIRMAN. Where is the instruction; was that in writing?
saying that it would incriminate you? Mr. ARNAULT. No.
Mr. ARNAULT. Because it violates the rights of a citizen to The CHAIRMAN. By cable?
privacy in his dealings with other people. Mr. ARNAULT. No.
xxx xxx xxx The CHAIRMAN. In what form did you receive that instruction?
Senator DE VERA. Are you afraid to state how the money was Mr. ARNAULT. Verbal instruction.
disposed of because you would be incriminated, or you would be The CHAIRMAN. When did you receive this verbal instruction
incriminating somebody? from Burt to deliver these P440,000 to a certain person whose
Mr. ARNAULT. I am not afraid; I simply stand on the privilege to name you do not like to reveal?
dispose of the money that has been paid to me as a result of a Mr. ARNAULT. I have instruction to comply with the request of
legal transaction without having to account for any use of it. the person.
But when in the same session the chairman of the committee, Senator The CHAIRMAN. Now, you said that instruction given to you by
Sumulong, interrogated the petitioner, the latter testified as follows: Burt was verbal?
The CHAIRMAN. The other check of P440,000 which you also Mr. ARNAULT. Yes.
made on October 29, 1949, is payable to cash; and upon cashing The CHAIRMAN. When was that instruction given to you by Burt?
this P440,000 on October 29, 1949, what did you do with that Mr. ARNAULT. Long time ago.
amount? The CHAIRMAN. In what year did Burt give you that verbal
Mr. ARNAULT. I turned it over to a certain person. instruction; when Burt was still here in the Philippines?
Mr. ARNAULT. Yes. Mr. ARNAULT. I never knew it.
The CHAIRMAN. But at that time Burt already knew that he would The CHAIRMAN. And how about his family name which
receive the money? according to your recollection is Spanish; can you remember the
Mr. ARNAULT. No. first letter with which that family name begins?
The CHAIRMAN. In what year was that when Burt while he was Mr. ARNAULT. S, D or F.
here in the Philippines gave you the verbal instruction? The CHAIRMAN. And what was the last letter of the family name?
Mr. ARNAULT. In 1946. Mr. ARNAULT. I do not know.
The CHAIRMAN. And what has that certain person done for Burt The CHAIRMAN. Have you seen that person again after you
to merit receiving these P440,000? have delivered this P440,000?
Mr. ARNAULT. I absolutely do not know. Mr. ARNAULT. Yes.
The CHAIRMAN. You do not know? The CHAIRMAN. Several times?
Mr. ARNAULT. I do not know. Mr. ARNAULT. Two or three times.
The CHAIRMAN. Burt did not tell you when he gave you the The CHAIRMAN. Here in Manila?
verbal instruction why that certain person should receive these Mr. ARNAULT. Yes.
P440,000? The CHAIRMAN. And in spite of the fact that you met that person
Mr. ARNAULT. He did not tell me. two or three times, you never were able to find out what was his
The CHAIRMAN. And Burt also authorized you to give this big name?
amount to that certain person without receipt? Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta
Mr. ARNAULT. He told me that a certain person would represent knows my name; of course, we have not done business. Lots of
him and where could I meet him. people in Manila know me, but they don't know my name, and I
The CHAIRMAN. Did Burt know already that certain person as don't know them. They sa{ I am "chiflado" because I don't know
early as 1946? their names.
Mr. ARNAULT. I presume much before that. The CHAIRMAN. That certain person is a male or female?
The CHAIRMAN. Did that certain person have any intervention in Mr. ARNAULT. He is a male.
the prosecution of the two cases involving the Buenavista and The CHAIRMAN. You are sure that he is a male at least?
Tambobong estates? Mr. ARNAULT. Let us say 38 or 40 years, more or less.
Mr. ARNAULT. Not that I know of. The CHAIRMAN. Can you give us, more or less, a description of
The CHAIRMAN. Is that certain person related to any high that certain person? What is his complexion: light, dark or light
government official? brown?
Mr. ARNAULT. No, I do not know. Mr. ARNAULT. He is like the gentleman there (pointing to
The CHAIRMAN. Why can you not tell us the name of that certain Senator Cabili), but smaller. He walks very straight, with military
person? bearing.
Mr. ARNAULT. Because I am not sure of his name; I cannot The CHAIRMAN. Do you know the residence of that certain
remember the name. person to whom you gave the P440,000?
The CHAIRMAN. When gave that certain person that P440,000 Mr. ARNAULT. No.
on October 29, 1949, you knew already that person? The CHAIRMAN. During these frequent times that you met that
Mr. ARNAULT. Yes, I have seen him several times. certain person, you never came to know his residence?
The CHAIRMAN. And the name of that certain person is a Filipino Mr. ARNAULT. No, because he was coming to the office.
name? The CHAIRMAN. How tall is that certain person?
Mr. ARNAULT. I would say Spanish name. Mr. ARNAULT. Between 5-2 and 5-6.
The CHAIRMAN. And how about his Christian name; is it also a
Spanish name? On May 15, 1950, the petitioner was haled before the bar of the Senate,
Mr. ARNAULT. I am not sure; I think the initial is J. which approved and read to him the following resolution:
The CHAIRMAN. Did he have a middle name?
Be it resolved by the Senate of the Philippines in Session xxx xxx xxx
assembled:
Mr. ORENDAIN. Mr. President, we are begging for the rules of
That Jean L. Arnault, now at the bar of the Senate, be arraigned procedure that the accused should not be required to testify
for contempt consisting of contumacious acts committed by him unless he so desires.
during the investigation conducted by the Special Committee
created by Senate Resolution No. 8 to probe the Tambobong and The PRESIDENT. It is the duty of the respondent to answer the
Buenavista estates deal of October 21, 1949, and that the question. The question is very clear. It does not incriminate him.
President of the Senate propounded to him the following
interrogatories: xxx xxx xxx

1. What excuse have you for persistently refusing to reveal the Mr. ARNAULT. I stand by every statement that I have made
name of the person to whom you gave the P440,000 on October before the Senate Committee on the first, second, and third
29, 1949, a person whose name it is impossible for you not to hearings to which I was made in my letter to this Senate of May 2,
remember not only because of the big amount of money you gave 1950, in which I gave all the reasons that were in my powers to
to him without receipt, but also by your own statements you knew give, as requested. I cannot change anything in those statements
him as early as 1946 when General Ernest H. Burt was still in the that I made because they represent the best that I can do , to the
Philippines, you made two other deliveries of money to him best of my ability.
without receipt, and the last time you saw him was in December
1949?
The PRESIDENT. You are not answering the question. The
answer has nothing to do with the question.
Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written
answer alleging that the questions were incriminatory in nature and
Sen. SUMULONG. I would like to remind you , Mr. Arnault, that
begging leave to be allowed to stand on his constitutional right not to be
the reason that you gave during the investigation for not revealing
compelled to be a witness against himself. Not satisfied with that written
the name of the person to whom you gave the P440,000 is not
answer Senator Sumulong, over the objection of counsel for the
the same reason that you are now alleging because during the
petitioner, propounded to the latter the following question:
investigation you told us: "I do not remember his name." But, now,
you are now saying: "My answer might incriminate me." What is
Sen. SUMULONG. During the investigation, when the Committee your real position?
asked you for the name of that person to whom you gave the
P440,000, you said that you can [could] not remember his name.
Mr. ARNAULT. I have just stated that I stand by my statements
That was the reason then for refusing to reveal the name of the
that I made at the first, second, and third hearings. I said that I
person. Now, in the answer that you have just cited, you are
wanted to be excused from answering the question. I beg to be
refusing to reveal the name of that person to whom you gave the
excused from making any answer that might be incriminating in
P440,000 on the ground that your answer will be self-
nature. However, in this answer, if the detail of not remembering
incriminating. Now, do I understand from you that you are
the name of the person has not been included, it is an oversight.
abandoning your former claim that you cannot remember the
name of that person, and that your reason now for your refusal to
reveal the name of that person is that your answer might be self- Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple
incriminating? In other words, the question is this: What is your question: Do you remember or not the name of the person to
real reason for refusing to reveal the name of that person to whom you gave the P440,000?
whom you gave the P440,000: that you do not remember his
name or that your answer would be self-incriminating? Mr. ARNAULT. I do not remember .
Sen. SUMULONG. Now, if you do not remember the name of that Mr. ARNAULT. I do not even understand the question. (The
person, how can you say that your answer might be question is restated and explained.)
incriminating? If you do not remember his name, you cannot
answer the question; so how could your answer be self- Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for
incriminating? What do you say to that? me and signed it. That is all I can say how I stand about this
letter. I have no knowledge myself enough to write such a letter,
Mr. ARNAULT. This is too complicated for me to explain. Please, so I had to secure the help of a lawyer to help me in my period of
I do not see how to answer those questions. That is why I asked distress.
for a lawyer, so he can help me. I have no means of knowing
what the situation is about. I have been in jail 13 days without In that same session of the Senate before which the petitioner was called
communication with the outside. How could I answer the to show cause why he should not be adjudged guilty of contempt of the
question? I have no knowledge of legal procedure or rule, of Senate, Senator Sumulong propounded to the petitioner questions
which I am completely ignorant. tending to elicit information from him as to the identity of the person to
whom he delivered the P440,000; but the petitioner refused to reveal it by
xxx xxx xxx saying that he did not remember. The President of the Senate then
propounded to him various questions concerning his past activities dating
Sen. SUMULONG. Mr. President, I ask that the question be as far back as when witness was seven years of age and ending as
answered. recently as the post liberation period, all of which questions the witness
answered satisfactorily. In view thereof, the President of the Senate also
The PRESIDENT. The witness is ordered to answer the question. made an attempt to illicit the desired information from the witness, as
It is very clear. It does not incriminate the witness. follows:
The PRESIDENT. Now I am convinced that you have a good
memory. Answer: Did you deliver the P440,000 as a gift, or of any
xxx xxx xxx
consideration?
Mr. ARNAULT. I have said that I had instructions to deliver it to
Mr. ARNAULT. I do not remember. I stand on my constitutional that person, that is all.
rights. I beg to be excused from making further answer, please. The PRESIDENT. Was it the first time you saw that person?
Mr. ARNAULT. I saw him various times, I have already said.
Sen. SUMULONG. In that mimeographed letter that you sent The PRESIDENT. In spite of that, you do not have the least
addressed to the President of the Senate, dated May 2, 1950, remembrance of the name of that person?
you stated there that you cannot reveal the name of the person to Mr. ARNAULT. I cannot remember.
whom you gave the P440,000 because if he is a public official The PRESIDENT. How is it that you do not remember events that
you might render yourself liable for prosecution for bribery, and happened a short time ago and, on the other hand, you
that if he is a private individual you might render yourself liable for remember events that occurred during your childhood?
prosecution for slander. Why did you make those statements Mr. ARNAULT. I cannot explain.
when you cannot even tell us whether that person to whom you
gave the P440,000 is a public official or a private individual ? We The Senate then deliberated and adopted the resolution of May 15
are giving you this chance to convince the Senate that all these hereinabove quoted whereby the petitioner was committed to the custody
allegations of yours that your answers might incriminate you are of the Sergeant-at-Arms and imprisoned until "he shall have purged the
given by you honestly or you are just trying to make a pretext for contempt by revealing to the Senate or to the aforesaid Special
not revealing the information desired by the Senate. Committee the name of the person to whom he gave the P440,000, as
well as answer other pertinent questions in connection therewith."
The PRESIDENT. You are ordered to answer the question.
The Senate also adopted on the same date another resolution (No. 16) , Philippines alone. It may therefore be said that the Congress of the
to wit: Philippines has a wider range of legislative field than the Congress of the
United States or any State Legislature. Our form of Government being
That the Special Committee created by Senate Resolution No. 8 patterned after the American system — the framers of our Constitution
be empowered and directed to continue its investigation of the having drawn largely from American institutions and practices — we can,
Tambobong and Buenavista Estates deal of October 21, 1949, in this case, properly draw also from American precedents in interpreting
more particularly to continue the examination of Jean L. Arnault analogous provisions of our Constitution, as we have done in other cases
regarding the name of the person to whom he gave the P440,000 in the past. Although there is no provision in the Constitution expressly
and other matters related therewith. investing either House of Congress with power to make investigations
and exact testimony to the end that it may exercise its legislative
The first session of the Second Congress was adjourned at midnight on functions as to be implied. In other words, the power of inquiry — with
May 18, 1950. 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 case was argued twice before us. We have given its earnest and
the legislation is intended to effect or change; and where the legislative
prolonged consideration because it is the first of its kind to arise since the
body does not itself possess the requisite information — which is not
Constitution of the Republic of the Philippines was adopted. For the first
infrequently true — recourse must be had to others who do possess it.
time this Court is called upon to define the power of either House of
Experience has shown that mere requests for such information are often
Congress to punish a person not a member for contempt; and we are
unavailing, and also that information which is volunteered is not always
fully conscious that our pronouncements here will set an important
accurate or complete; so some means of compulsion is essential to
precedent for the future guidance of all concerned.
obtain what is needed. (McGrain vs.Daugherty, 273 U.S., 135; 71 L. ed.,
580; 50 A.L R., 1.) The fact that the Constitution expressly gives to
Before discussing the specific issues raised by the parties, we deem it Congress the power to punish its Members for disorderly behavior, does
necessary to lay down the general principles of law which form the not by necessary implication exclude the power to punish for contempt
background of those issues. any other person. (Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed., 242.)
But no person can be punished for contumacy as a witness before either
Patterned after the American system, our Constitution vests the powers House, unless his testimony is required in a matter into which that House
of the Government in three independent but coordinate Departments — has jurisdiction to inquire. (Kilbourn vs. Thompson, 26 L. ed., 377.).
Legislative, Executive, and Judicial. The legislative power is vested in the
Congress, which consists of the Senate and the House of Since, as we have noted, the Congress of the Philippines has a wider
Representatives. (Section 1, Article VI.) Each house may determine the range of legislative field than either the Congress of the United States or
rules of its proceedings, punish its Members for disorderly behavior, and, a State Legislature, we think it is correct to say that the field of inquiry into
with the concurrence of two-thirds of all its Members, expel a Member. which it may enter is also wider. It would be difficult to define any limits by
(Section 10, Article VI.) The judicial power is vested in the Supreme Court which the subject matter of its inquiry can be bounded. It is not necessary
and in such inferior courts as may be established by law. (Section 1, to do so in this case. Suffice it to say that it must be coextensive with the
Article VIII.) Like the Constitution of the United States, ours does not range of the legislative power.
contain an express provision empowering either of the two Houses of
Congress to punish nonmembers for contempt. It may also be noted that
In the present case the jurisdiction of the Senate, thru the Special
whereas in the United States the legislative power is shared by and
Committee created by it, to investigate the Buenavista and Tambobong
between the Congress of the United States, on the one hand, and the
Estates deal is not challenged by the petitioner; and we entertain no
respective legislatures of the different States, on the other — the powers
doubt as to the Senate's authority to do so and as to the validity of
not delegated to the United States by the Constitution nor prohibited by it
Resolution No. 8 hereinabove quoted. The transaction involved a
to States being reserved to the States, respectively, or to the people — in
questionable and allegedly unnecessary and irregular expenditure of no
the Philippines, the legislative power is vested in the Congress of the
less than P5,000,000 of public funds, of which Congress is the
constitutional guardian. It also involved government agencies created by been approved by the House and might not be approved pending the
Congress to regulate or even abolish. As a result of the yet uncompleted completion of the investigation; and that those bills were not necessarily
investigation, the investigating committee has recommended and the all the measures that Congress might deem it necessary to pass after the
Senate approved three bills (1) prohibiting the Secretary of Justice or any investigation is finished.
other department head from discharging functions and exercising powers
other than those attached to his own office, without ]previous Once an inquiry is admitted or established to be within the jurisdiction of a
congressional authorization; (2) prohibiting brothers and near relatives of legislative body to make, we think the investigating committee has the
any President of the Philippines from intervening directly or indirectly and power to require a witness to answer any question pertinent to that
in whatever capacity in transactions in which the Government is a party, inquiry, subject of course to his constitutional right against self-
more particularly where the decision lies in the hands of executive or incrimination. The inquiry, to be within the jurisdiction of the legislative
administrative officers who are appointees of the President; and (3) body to make, must be material or necessary to the exercise of a power
providing that purchases of the Rural Progress Administration of big in it vested by the Constitution, such as to legislate, or to expel a
landed estates at a price of P100,000 or more, shall not become effective Member; and every question which the investigator is empowered to
without previous congressional confirmation. 2 coerce a witness to answer must be material or pertinent to the subject of
the inquiry or investigation. So a witness may not be coerced to answer a
We shall now consider and pass upon each of the questions raised by question that obviously has no relation to the subject of the inquiry. But
the petitioner in support of his contention that his commitment is unlawful. from this it does not follow that every question that may be propounded to
a witness must be material to any proposed or possible legislation. In
First He contends that the Senate has no power to punish him for other words, the materiality of the question must be determined by its
contempt for refusing to reveal the name of the person to whom he gave direct relation to any proposed or possible legislation. The reason is, that
the P440,000, because such information is immaterial to, and will not the necessity or lack of necessity for legislative action and the form and
serve, any intended or purported legislation and his refusal to answer the character of the action itself are determined by the sum total of the
question has not embarrassed, obstructed, or impeded the legislative information to be gathered as a result of the investigation, and not by a
process. It is argued that since the investigating committee has already fraction of such information elicited from a single question.
rendered its report and has made all its recommendations as to what
legislative measures should be taken pursuant to its findings, there is no In this connection, it is suggested by counsel for the respondents that the
necessity to force the petitioner to give the information desired other than power of the Court is limited to determining whether the legislative body
that mentioned in its report, to wit: "In justice to Judge Quirino and to has jurisdiction to institute the inquiry or investigation; that once that
Secretary Nepomuceno, this atmosphere of suspicion that now pervades jurisdiction is conceded, this Court cannot control the exercise of that
the public mind must be dissipated, and it can only be done if appropriate jurisdiction; and it is insinuated, that the ruling of the Senate on the
steps are taken by the Senate to compel Arnault to stop pretending that materiality of the question propounded to the witness is not subject to
he cannot remember the name of the person to whom he gave the review by this Court under the principle of the separation of powers. We
P440,000 and answer the questions which will definitely establish the have to qualify this proposition. As was said by the Court of Appeals of
identity of that person . . ." Senator Sumulong, Chairman of the New York: "We are bound to presume that the action of the legislative
Committee, who appeared and argued the case for the respondents, body was with a legitimate object if it is capable of being so construed,
denied that that was the only purpose of the Senate in seeking the and we have no right to assume that the contrary was intended."
information from the witness. He said that the investigation had not been (People ex rel.McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep., 49; 2
completed, because, due to the contumacy of the witness, his committee N.E., 615, quoted with approval by the Supreme Court of the United
had not yet determined the parties responsible for the anomalous States in the said case of McGrain vs. Daugherty, it is necessary
transaction as required by Resolution No. 8; that, by Resolution No. 16, deduction from the decision in Re Chapman, 41 L. ed., 1154, that where
his committee was empowered and directed to continue its investigation, the questions are not pertinent to the matter under inquiry a witness
more particularly to continue its examination of the witness regarding the rightfully may refuse to answer. So we are of the opinion that where the
name of the person to whom he gave the P440,000 and other matters alleged immateriality of the information sought by the legislative body
related therewith; that the bills recommended by his committee had not from a witness is relied upon to contest its jurisdiction, the court is in duty
bound to pass upon the contention. The fact that the legislative body has Had the firm, during the month of March, 1894, bought or sold
jurisdiction or the power to make the inquiry would not preclude judicial any stock or securities, known as sugar stocks, for or in the
intervention to correct a clear abuse of discretion in the exercise of that interest, directly or indirectly, of any United Senate senator?
power.
Was the said firm at that time carrying any sugar stock for the
Applying the criterion laid down in the last two preceding paragraphs to benefit of, or in the interest, directly or indirectly, of any United
the resolution of the issue under consideration, we find that the question Senate senator?
for the refusal to answer which the petitioner was held in contempt by the
Senate is pertinent to the matter under inquiry. In fact, this is not and He refused to answer the questions and was prosecuted under an Act of
cannot be disputed. Senate Resolution No. 8, the validity of which is not Congress for contempt of the Senate. Upon being convicted and sent to
challenged by the petitioner, requires the Special Committee, among jail he petitioned the Supreme Court of the United States for a writ
other things, to determine the parties responsible for the Buenavista and of habeas corpus. One of the questions decided by the Supreme Court of
Tambobong estates deal, and it is obvious that the name of the person to the United States in that case was whether the committee had the right to
whom the witness gave the P440,000 involved in said deal is pertinent to compel the witness to answer said questions, and the Court held that the
that determination — it is in fact the very thing sought to be determined. committee did have such right, saying:
The contention is not that the question is impertinent to the subject of the
inquiry but that it has no relation or materiality to any proposed The questions were undoubtedly pertinent to the subject-matter of
legislation. We have already indicated that it is not necessary for the the inquiry. The resolution directed the committee to inquire
legislative body to show that every question propounded to a witness is whether any senator has been, or is, speculating in what are
material to any proposed or possible legislation; what is required is that is known as sugar stocks during the consideration of the tariff bill
that it be pertinent to the matter under inquiry. now before the Senate." What the Senate might or might not do
upon the facts when ascertained, we cannot say, nor are we
It is said that the Senate has already approved the three bills called upon to inquire whether such ventures might be defensible,
recommended by the Committee as a result of the uncompleted as contended in argument, but is plain that negative answers
investigation and that there is no need for it to know the name of the would have cleared that body of what the Senate regarded as
person to whom the witness gave the P440,000. But aside from the fact offensive imputations, while affirmative answers might have led to
that those bills have not yet been approved by the lower house and by further action on the part of the Senate within its constitutional
the President and that they may be withdrawn or modified if after the powers. (Emphasis supplied.)
inquiry is completed they should be found unnecessary or inadequate,
there is nothing to prevent the Congress from approving other measures It may be contended that the determination of the parties responsible for
it may deem necessary after completing the investigation. We are not the deal is incumbent upon the judicial rather than upon the legislative
called upon, nor is it within our province, to determine or imagine what branch. But we think there is no basis in fact or in law for such
those measures may be. And our inability to do so is no reason for assumption. The petitioner has not challenged the validity of Senate
overruling the question propounded by the Senate to the witness. Resolution No. 8, and that resolution expressly requires the committee to
determine the parties responsible for the deal. We are bound to presume
The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in point that the Senate has acted in the due performance of its constitutional
here. The inquiry there in question was conducted under a resolution of function in instituting the inquiry, if the act is capable of being so
the Senate and related to charges, published in the press, that senators construed. On the other hand, there is no suggestion that the judiciary
were yielding to corrupt influences in considering a tariff bill then before has instituted an inquiry to determine the parties responsible for the deal.
the Senate and were speculating in stocks the value of which would be Under the circumstances of the case, it appearing that the questioned
affected by pending amendments to the bill. Chapman, a member of a transaction was affected by the head of the Department of Justice
firm of stock brokers dealing in the stock of the American Sugar Refining himself, it is not reasonable to expect that the Fiscal or the Court of First
Company, appeared before the committee in response to a subpoena Instance of Manila will take the initiative to investigate and prosecute the
and asked, among others, the following questions: parties responsible for the deal until and unless the Senate shall
determined those parties are and shall taken such measures as may be and in respect of which it rightfully may take other action; that if the
within its competence to take the redress the wrong that may have been inquiry relates to a matter wherein relief or redress could be had only by
committed against the people as a result of the transaction. As we have judicial proceeding, it is not within the range of this power , but must be
said, the transaction involved no less than P5,000,000 of public funds. left to the court, conformably to the constitutional separation of
That certainly is a matter of a public concern which it is the duty of the government powers.
constitutional guardian of the treasury to investigate.
That case differs from the present case in two important respects: (1)
If the subject of investigation before the committee is within the range of There the court found that the subject of the inquiry, which related to a
legitimate legislative inquiry and the proposed testimony of the witness private real-estate pool or partnership, was not within the jurisdiction of
called relates to that subject, obedience, to its process may be enforced either House of Congress; while here if it is not disputed that the subject
by the committee by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 of the inquiry, which relates to a transaction involving a questionable
S.E., 670; 40 Ann. Cas. [1916 B.], 1115.) expenditure by the Government of P5,000,000 of public funds, is within
the jurisdiction of the Senate, (2) There the claim of the Government as a
The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied creditor of Jay Cooke and Company, which had had an interest in the
upon by the petitioner, is not applicable here. In that case the inquiry pool, was pending adjudication by the court; while here the interposition
instituted by the House of Representatives of the United States related to of the judicial power on the subject of the inquiry cannot be expected, as
a private real-estate pool or partnership in the District of Columbia. Jay we have pointed out above, until after the Senate shall have determined
Cook and Company had had an interest in the pool but become who the parties responsible are and shall have taken such measures as
bankrupts, and their estate was in course of administration in a federal may be within its competence to take to redress the wrong that may have
bankruptcy court in Pennsylvania. The United States was one of their been committed against the people as a result of the transaction.
creditors. The trustee in the bankruptcy proceeding had effected a
settlement of the bankrupts' interest in the pool, and of course his action It is interesting to note that the decision in the case of
was subject to examination and approval or disapproval by the Killbourn vs. Thompson has evoked strong criticisms from legal scholars.
bankruptcy court. Some of the creditors, including the United States, (See Potts, Power of Legislative Bodies to Punish for Contempt [1926],
were dissatisfied with the settlement. The resolution of the House 74 U. Pa. L. Rev., 692-699; James L. Land is, Constitutional Limitations
directed the Committee "to inquire into the nature and history of said real- on the Congressional Power of Investigation [1926], 40 Harvard L. Rev.,
estate pool and the character of said settlement, with the amount of 153, 154, 214-220.) We quoted the following from Professor Land is'
property involve, in which Jay Cooke and Co. were interested, and the criticism: "Mr. Justice Miller saw the case purely as an attempt by the
amount paid or to be paid in said settlement, with power to send for House to secure to the Government certain priority rights as creditor of
persons and papers, and report to this House." The Supreme Court of the the bankrupt concern. To him it assumed the character of a lawsuit
United States, speaking thru Mr. Justice Miller, pointed out that the between the Government and Jay Cooke and Co., with the Government,
resolution contained no suggestion of contemplated legislation; that the acting through the House, attempting to override the orderliness of
matter was one in respect of which no valid legislation could be had; that established procedure and thereby prefer a creditors' bill not before the
the bankrupts' estate and the trustee's settlement were still pending in the courts but before Congress. That bankruptcy proceedings had already
bankruptcy court; and that the United States and other creditors were free been instituted against Jay Cooke and Co., in a federal court gave added
to press their claims in that proceeding. And on these grounds the court impetus to such a conception. The House was seeking to oust a court of
held that in undertaking the investigation "the House of Representatives prior acquired jurisdiction by an extraordinary and unwarranted
not only exceeded the limit of its own authority, but assumed a power assumption of "judicial power"! The broader aspect of the investigation
which could only be properly exercised by another branch of the had not been disclosed to the Court. That Jay Cooke and Co.'s
government, because the power was in its nature clearly judicial." The indebtedness and the particular funds in question were only part of the
principles announced and applied in that case are: that neither House of great administrative problem connected with the use and disposition of
Congress possesses a "general power of making inquiry into the private public monies, that the particular failure was of consequence mainly in
affairs of the citizen"; that the power actually possessed is limited to relation to the security demanded for all government deposits, that the
inquires relating to matters of which the particular House has jurisdiction, facts connected with one such default revealed the possibility of other
and greater maladministration, such considerations had not been put Second. It is next contended for the petitioner that the Senate lacks
before the Court. Nor had it been acquainted with the every-day nature of authority to commit him for contempt for a term beyond its period of
the particular investigation and the powers there exerted by the House, legislative session, which ended on May 18, 1950. This contention is
powers whose exercise was customary and familiar in legislative practice. based on the opinion of Mr. Justice Malcolm, concurred in by Justices
Instead of assuming the character of an extraordinary judicial proceeding, Street and Villa-Real, in the case of Lopez vs. De los Reyes (1930), 55
the inquiry, place in its proper background, should have been regarded Phil., 170. In that case it appears that on October 23, 1929, Candido
as a normal and customary part of the legislative process. Detailed Lopez assaulted a member of the House of Representatives while the
definiteness of legislative purpose was thus made the demand of the latter was going to the hall of the House of Representatives to attend the
court in Killbourn vs. Thompson. But investigators cannot foretell the session which was then about to begin, as a result of which assault said
results that may be achieved. The power of Congress to exercise control representative was unable to attend the sessions on that day and those
over a real-estate pool is not a matter for abstract speculation but one to of the two days next following by reason of the threats which Candido
be determined only after an exhaustive examination of the problem. Lopez made against him. By the resolution of the House adopted
Relationship, and not their possibilities, determine the extent of November 6, 1929, Lopez was declared guilty of contempt of the House
congressional power. Constitutionality depends upon such disclosures. of Representatives and ordered punished by confinement in Bilibid Prison
Their presence, whether determinative of legislative or judicial power, for a period of twenty-four hours. That resolution was not complied with
cannot be relegated to guesswork. Neither Congress nor the Court can because the session of the House of Representatives adjourned at
predict, prior to the event, the result of the investigation." midnight on November 8, 1929, and was reiterated at the next session on
September 16, 1930. Lopez was subsequently arrested, whereupon he
The other case relied upon by the petitioner is Marshall vs. Gordon, 243 applied for the writ of habeas corpus in the Court of First Instance of
U.S., 521; 61. ed., 881. The question there was whether the House of Manila, which denied the application. Upon appeal to the Supreme Court,
Representatives exceeded its power in punishing, as for contempt of its six justices voted to grant the writ: Justice Malcolm, Street, and Villa-real,
authority, the District Attorney of the Southern District of New York, who on the ground that the term of imprisonment meted out to the petitioner
had written, published, and sent to the chairman of one of its committees could not legally be extended beyond the session of the body in which
an ill-tempered and irritating letter respecting the action and purposes of the contempt occurred; and Justices Johns, Villamor, and Ostrand, on the
the committee in interfering with the investigation by the grand jury of ground that the Philippine Legislature had no power to punish for
alleged illegal activities of a member of the House of Representatives. contempt because it was a creature merely of an Act of the Congress of
Power to make inquires and obtain evidence by compulsory process was the United States and not of a Constitution adopted by the people. Chief
not involved. The court recognized distinctly that the House of Justice Avanceña, Justice Johnson, and Justice Romualdez wrote
Representatives had implied power to punish a person not a member for separate opinions, concurring with Justice Malcolm, Street, and Villa-
contempt, but held that its action in this instance was without Real, that the Legislature had inherent power to punish for contempt but
constitutional justification. The decision was put on the ground that the dissenting from the opinion that the order of commitment could only be
letter, while offensive and vexatious, was not calculated or likely to affect executed during the particular session in which the act of contempt was
the House in any of its proceedings or in the exercise of any of its committed.
functions. This brief statement of the facts and the issues decided in that
case is sufficient to show the inapplicability thereof to the present case. Thus, on the question under consideration, the Court was equally divided
There the contempt involved consisted in the district attorney's writing to and no decisive pronouncement was made. The opinion of Mr. Justice
the chairman of the committee an offensive and vexatious letter, while Malcolm is based mainly on the following passage in the case of
here the contempt involved consists in the refusal of the witness to Anderson vs.Dunn, supra:
answer questions pertinent to the subject of an inquiry which the Senate
has the power and jurisdiction to make . But in that case, it was And although the legislative power continues perpetual, the
recognized that the House of Representatives has implied power to legislative body ceases to exist on the moment of its adjournment
punish a person not a member of contempt. In that respect the case is or periodical dissolution. It follows that imprisonment must
applicable here in favor of the Senate's (and not of the Petitioner's ) terminate with that adjournment.
contention.
as well as on the following quotation from Marshall vs. Gordon, supra: question as to the duration of the penalty was not involved in that case.
The question there was "whether the House of Representatives can take
And the essential nature of the power also makes clear the cognizance of contempt committed against themselves, under any
cogency and application of the two limitations which were circumstances." The court there held that the House of Representatives
expressly pointed out in Anderson vs. Dunn, supra, that is, that had the power to punish for contempt, and affirmed the judgment of the
the power even when applied to subjects which justified its lower court in favor of the defendant. In Marshall vs. Gordon, the question
exercise is limited to imprisonment and such imprisonment may presented was whether the House had the power under the Constitution
not be extended beyond the session of the body in which the to deal with the conduct of the district attorney in writing a vexatious letter
contempt occurred. as a contempt of its authority, and to inflict punishment upon the writer for
such contempt as a matter of legislative power. The court held that the
Interpreting the above quotations, Chief Justice Avanceña held: House had no such power because the writing of the letter did not
obstruct the performance of legislative duty and did not endanger the
preservation of the power of the House to carry out its legislative
From this doctrine it follows, in my judgement, that the imposition
authority. Upon that ground alone, and not because the House had
of the penalty is limited to the existence of the legislative body,
adjourned, the court ordered the discharge of the petitioner from custody.
which ceases to function upon its final periodical dissolution. The
doctrine refers to its existence and not to any particular session
thereof. This must be so, inasmuch as the basis of the power to The case where the question was squarely decided is
impose such penalty is the right which the Legislature has to self- McGrain vs. Daugherty, supra. There it appears that the Senate had
preservation, and which right is enforceable during the existence adopted a resolution authorizing and directing a select committee of five
of the legislative body. Many causes might be conceived to senators to investigate various charges of misfeasance and nonfeasance
constitute contempt to the Legislature, which would continue to in the Department of Justice after Attorney General Harry M. Daugherty
be a menace to its preservation during the existence of the became its supervising head. In the course of the investigation the
legislative body against which contempt was committed. committee caused to be served on Mally S. Daugherty, brother of Harry
M. Daugherty and president of the Midland National Bank of Washington
Court House, Ohio, a subpoena commanding him to appear before it for
If the basis of the power of the legislature to punish for contempt
the purpose of giving testimony relating to the subject under
exists while the legislative body exercising it is in session, then
consideration. The witness failed to appear without offering any excuse
that power and the exercise thereof must perforce continue until
for his failure. The committee reported the matter to the Senate and the
the final adjournment and the election of its successor.
latter adopted a resolution, "That the President of the Senate pro tempore
issue his warrant commanding the Sergeant-at-Arms or his deputy to
Mr. Justice Johnson's more elaborate opinion, supported by quotations take into custody the body of the said M.S. Daugherty wherever found,
from Cooley's Constitutional Limitations and from Jefferson's Manual, is and to bring the said M.S. Daugherty before the bar of the Senate, then
to the same effect. Mr. Justice Romualdez said: "In my opinion, where as and there to answer such questions pertinent to the matter under inquiry
in the case before us, the members composing the legislative body as the Senate may order the President of the Senate pro tempore to
against which the contempt was committed have not yet completed their propound; and to keep the said M.S. Daugherty in custody to await the
three-year term, the House may take action against the petitioner herein." further order of the Senate." Upon being arrested, the witness petitioned
the federal court in Cincinnati for a writ of habeas corpus. The federal
We note that the quotations from Anderson vs. Dunn and court granted the writ and discharged the witness on the ground that the
Marshall vs. Gordon relied upon by Justice Malcolm are obiter dicta. Senate, in directing the investigation and in ordering the arrest, exceeded
Anderson vs. Dunn was an action of trespass against the Sergeant-at- its power under the Constitution. Upon appeal to the Supreme Court of
Arms of the House of Representatives of the United States for assault the United States, one of the contentions of the witness was that the case
and battery and false imprisonment. The plaintiff had been arrested for ha become moot because the investigation was ordered and the
contempt of the House, brought before the bar of the House, and committee was appointed during the Sixty-eighth Congress, which
reprimanded by the Speaker, and then discharged from custody. The expired on March 4, 1926. In overruling the contention, the court said:
. . . The resolution ordering the investigation in terms limited the interrupted by reason of the habeas corpus proceedings. In these
committee's authority to the period of the Sixty-eighth Congress; circumstances we think a judgment should be rendered as was
but this apparently was changed by a later and amendatory done in the case cited.
resolution authorizing the committee to sit at such times and
places as it might deem advisable or necessary. It is said in What has been said requires that the final order in the District
Jefferson's Manual: "Neither House can continue any portion of Court discharging the witness from custody be reversed.
itself in any parliamentary function beyond the end of the session
without the consent of the other two branches. When done, it is Like the Senate of the United States , the Senate of the Philippines is a
by a bill constituting them commissioners for the particular continuing body whose members are elected for a term of six years and
purpose." But the context shows that the reference is to the two so divided that the seats of only one-third become vacant every two
houses of Parliament when adjourned by prorogation or years, two-thirds always continuing into the next Congress save as
dissolution by the King. The rule may be the same with the House vacancies may occur thru death or resignation. Members of the House of
of Representatives whose members are all elected for the period Representatives are all elected for a term of four years; so that the term
of a single Congress: but it cannot well be the same with the of every Congress is four years. The Second Congress of the Philippines
Senate, which is a continuing body whose members are elected was constituted on December 30, 1949, and will expire on December 30,
for a term of six years and so divided into classes that the seats 1953. The resolution of the Senate committing the Petitioner was adopted
of one third only become vacant at the end of each Congress, two during the first session of the Second Congress, which began on the
thirds always continuing into the next Congress, save as fourth Monday of January and ended in May 18, 1950.
vacancies may occur through death or resignation.
Had said resolution of commitment been adopted by the House of
Mr. Hinds in his collection of precedents, says: "The Senate, as a Representatives, we think it could be enforced until the final adjournment
continuing body, may continue its committees through the recess of the last session of the Second Congress in 1953. We find no sound
following the expiration of a Congress;" and, after quoting the reason to limit the power of the legislative body to punish for contempt to
above statement from Jefferson's Manual, he says: "The Senate, the end of every session and not to the end of the last session
however being a continuing body, gives authority to its terminating the existence of that body. The very reason for the exercise
committees during the recess after the expiration of a Congress." of the power to punish for contempt is to enable the legislative body to
So far as we are advised the select committee having this perform its constitutional function without impediment or obstruction.
investigation in charge has neither made a final report nor been Legislative functions may be and in practice are performed during recess
discharged; nor has been continued by an affirmative order. by duly constituted committees charged with the duty of performing
Apparently its activities have been suspended pending the investigations or conducting hearing relative to any proposed legislation.
decision of this case. But, be this as it may, it is certain that the To deny to such committees the power of inquiry with process to enforce
committee may be continued or revived now by motion to that it would be to defeat the very purpose for which that the power is
effect, and if, continued or revived, will have all its original recognized in the legislative body as an essential and appropriate
powers. This being so, and the Senate being a continuing body, auxiliary to is legislative function. It is but logical to say that the power of
the case cannot be said to have become moot in the ordinary self-preservation is coexistent with the life to be preserved.
sense. The situation is measurably like that in Southern P.
Terminal Co. vs. Interstate Commerce Commission, 219 U. S.,
But the resolution of commitment here in question was adopted by the
498, 514-516; 55 L. ed., 310, 315, 316; 31 Sup. Ct. Rep., 279,
Senate, which is a continuing body and which does not cease exist upon
where it was held that a suit to enjoin the enforcement of an order
the periodical dissolution of the Congress or of the House of
of the Interstate Commerce Commission did not become moot
Representatives. There is no limit as to time to the Senate's power to
through the expiration of the order where it was capable of
punish for contempt in cases where that power may constitutionally be
repetition by the Commission and was a matter of public interest.
exerted as in the present case.
Our judgment may yet be carried into effect and the investigation
proceeded with from the point at which it apparently was
Mere reflection upon the situation at hand convinces us of the soundness explained that although the transactions were legal he refused to answer
of this proposition. The Senate has ordered an investigation of the questions concerning them "because it violates the right of a citizen to
Buenavista and Tambobong estates deal, which we have found it is privacy in his dealings with other people . . . I simply stand on my
within its competence to make. That investigation has not been privilege to dispose of the money that has been paid to me as a result of
completed because of the refusal of the petitioner as a witness to answer a legal transaction without having to account for the use of it." But after
certain questions pertinent to the subject of the inquiry. The Senate has being apparently convinced by the Committee that his position was
empowered the committee to continue the investigation during the untenable, the witness testified that, without securing any receipt, he
recess. By refusing to answer the questions, the witness has obstructed turned over the P440,000 to a certain person, a representative of Burt, in
the performance by the Senate of its legislative function, and the Senate compliance with Burt's verbal instruction made in 1946; that as far as he
has the power to remove the obstruction by compelling the witness to know, that certain person had nothing to do with the negotiations for the
answer the questions thru restraint of his liberty until he shall have settlement of the Buenavista and Tambobong cases; that he had seen
answered them. That power subsists as long as the Senate, which is a that person several times before he gave him the P440,000 on October
continuing body, persists in performing the particular legislative function 29, 1949, and that since then he had seen him again two or three times,
involved. To hold that it may punish the witness for contempt only during the last time being in December, 1949, in Manila; that the person was a
the session in which investigation was begun, would be to recognize the male, 39 to 40 years of age, between 5 feet, 2 inches and 5 feet, 6 inches
right of the Senate to perform its function but at the same time to deny to in height. Butt the witness would not reveal the name of that person on
it an essential and appropriate means for its performance. Aside from these pretexts: " I don't remember the name; he was a representative of
this, if we should hold that the power to punish for contempt terminates Burt." "I am not sure; I don't remember the name."
upon the adjournment of the session, the Senate would have to resume
the investigation at the next and succeeding sessions and repeat the We are satisfied that those answers of the witness to the important
contempt proceedings against the witness until the investigation is question, what is the name of that person to whom you gave the
completed-an absurd, unnecessary, and vexatious procedure, which P440,000? were obviously false. His insistent claim before the bar of the
should be avoided. Senate that if he should reveal the name he would incriminate himself,
necessarily implied that he knew the name. Moreover, it is unbelievable
As against the foregoing conclusion it is argued for the petitioner that the that he gave the P440,000 to a person to him unknown.
power may be abusively and oppressively exerted by the Senate which
might keep the witness in prison for life. But we must assume that the "Testimony which is obviously false or evasive is equivalent to a refusal
Senate will not be disposed to exert the power beyond its proper bounds. to testify and is punishable as contempt, assuming that a refusal to testify
And if, contrary to this assumption, proper limitations are disregarded, the would be so punishable." (12 Am. Jur., sec. 15, Contempt, pp. 399-400.)
portals of this Court are always open to those whose rights might thus be In the case of Mason vs. U.S., 61 L. ed., 1198, it appears that Mason was
transgressed. called to testify before a grand jury engaged in investigating a charge of
gambling against six other men. After stating that he was sitting at a table
Third. Lastly, the petitioner invokes the privilege against self- with said men when they were arrested, he refused to answer two
incrimination. He contends that he would incriminate himself if he should questions, claiming so to do might tend to incriminate him: (1) "Was there
reveal the name of the person to whom he gave the P440,000 if that a game of cards being played on this particular evening at the table at
person be a public official be (witness) might be accused of bribery, and if which you are sitting?" (2) "Was there a game of cards being played at
that person be a private individual the latter might accuse him of oral another table at this time?" The foreman of the grand jury reported the
defamation. matter to the judge, who ruled "that each and all of said questions are
proper and that the answers thereto would not tend to incriminate the
The ground upon which the witness' claim is based is too shaky, in firm, witness." Mason was again called and refused to answer the first
and slippery to afford him safety. At first he told the Committee that the question propounded to him, but, half yielding to frustration, he said in
transactions were legal, that no laws were violated, and that all requisites response to the second question: "I don't know." In affirming the
had been replied with; but at the time he begged to be excused from conviction for contempt, the Supreme Court of the United States among
making answers "which might later be used against me." A little later he other things said:
In the present case, the witness certainly were not relieved from militant in claiming constitutional rights and privileges but patently
answering merely because they declared that so to do might recreant to his duties and obligations to the Government which protects
incriminate them. The wisdom of the rule in this regard is well those rights under the law. When a specific right and a specific obligation
illustrated by the enforced answer, "I don't know ," given by conflict with each other, and one is doubtful or uncertain while the other is
Mason to the second question, after he had refused to reply clear and imperative, the former must give way to the latter. The right to
under a claim of constitutional privilege. life is one of the most sacred that the citizen may claim, and yet the state
may deprive him of it if he violates his corresponding obligation to respect
Since according to the witness himself the transaction was legal, and that the life of others. As Mr. Justice Johnson said in Anderson vs. Dunn: "The
he gave the P440,000 to a representative of Burt in compliance with the wretch beneath the gallows may repine at the fate which awaits him, and
latter's verbal instruction, we find no basis upon which to sustain his claim yet it is not certain that the laws under which he suffers were made for
that to reveal the name of that person might incriminate him. There is no the security." Paraphrasing and applying that pronouncement here, the
conflict of authorities on the applicable rule, to wit: petitioner may not relish the restraint of his liberty pending the fulfillment
by him of his duty, but it is no less certain that the laws under which his
Generally, the question whether testimony is privileged is for the liberty is restrained were made for his welfare.
determination of the Court. At least, it is not enough for the
witness to say that the answer will incriminate him. as he is not From all the foregoing, it follows that the petition must be denied, and it is
the sole judge of his liability. The danger of self-incrimination so ordered, with costs.
must appear reasonable and real to the court, from all the
circumstances, and from the whole case, as well as from his
general conception of the relations of the witness. Upon the facts
thus developed, it is the province of the court to determine
whether a direct answer to a question may criminate or not. . . . Republic of the Philippines
The fact that the testimony of a witness may tend to show that he SUPREME COURT
has violated the law is not sufficient to entitle him to claim the Manila
protection of the constitutional provision against self-incrimination,
unless he is at the same time liable to prosecution and
EN BANC
punishment for such violation. The witness cannot assert his
privilege by reason of some fanciful excuse, for protection against
an imaginary danger, or to secure immunity to a third person. ( 3 G.R. No. L-6749 July 30, 1955
Wharton's Criminal Evidence, 11th ed., secs. 1135,1136.)
JEAN L. ARNAULT, petitioner-appellee,
It is the province of the trial judge to determine from all the facts vs.
and circumstances of the case whether the witness is justified in EUSTAQUIO BALAGTAS, as Director of Prisons, respondent-
refusing to answer. (People vs. Gonzo, 23 N.E. [2d], 210 [Ill. appellant.
App., 1939].) A witness is not relieved from answering merely on
his own declaration that an answer might incriminate him, but Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor
rather it is for the trial judge to decide that question. General Guillermo E. Torres and Solicitor Jaime De Los Angeles for
(Mason vs. U.S., 244 U. S., 362; 61 L. ed., 1193, 1200.) appellant.
Estanislao A. Fernandez and Roman B. Antonio for appellee.
As against witness's inconsistent and unjustified claim to a constitutional
right, is his clear duty as a citizen to give frank, sincere, and truthful LABRADOR, J.:
testimony before a competent authority. The state has the right to exact
fulfillment of a citizen's obligation, consistent of course with his right This an appeal from judgment of the Court of First Instance of Rizal,
under the Constitution. The witness in this case has been vociferous and Pasay City Branch, Honorable Jose F. Flores presiding, in habeas
corpus proceeding, declaring that the continued detention and circumstances under which he met one by the name of Jess D. Santos.
confinement of Jean L. Arnault in the new Bilibid Prison, in pursuance of Upon the presentation of the said affidavit to the said Senate Special
Senate Resolution No. 114, dated November 8, 1952, is illegal, for the Committee, the latter subjected petitioner to questioning regarding the
reason that the Senate of the Philippines committed a clear abuse of identity of Jess D. Santos, and after said investigation and questioning
discretion in considering his answer naming one Jess D. Santos as the the Committee adopted Resolution No. 114 on November 8, 1952. This
person to whom delivery of the sum of P440,000 was made in the sale of Resolution reads as follows:
the Buenavista and Tambobong Estate, as a refusal to answer the
question directed by the Senate committee to him, and on the further RESOLUTION APPROVING THE REPORT OF THE SPECIAL
ground that said Jean L. Arnault, by his answer has purged himself of COMMITTEE TO INVESTIGATE THE BUENAVISTA AND
contempt and is consequently entitled to be released and discharged. TAMBOBONG ESTATES DEAL, AND ORDERING THE
DIRECTOR OF PRISON TO CONTINUE HOLDING JEAN L.
Petitioner-appellee was an attorney in-fact or Ernest H. Burt in the ARNAULT IN HIS CUSTODY, AND IN CONFINEMENT AND
negotiations for the purchase of the Buenavista and Tambobong Estates DETENTION AT THE NEW BILIBID PRISON AT MUNTINLUPA,
by the Government of the Philippines. The purchase was effected on RIZAL, UNTIL THE SAID ARNAULT SHALL HAVE PURGED
October 21, 1949 and the price paid for both estates was P5,000,000. On HIMSELF OF CONTEMPT OF THE SENATE.
February 27, 1950, the Senate of the Philippines adopted Resolution No.
8, whereby it created a Special Committee to determine "whether the said WHEREAS, on the 15th May 1950 the Senate of the Philippines,
purchase was honest, valid and proper, and whether the price involved in transcending divisions of party and faction in the national interest,
the deal was fair and just, the parties responsible therefor, any other facts adopted a Resolution ordering the detention and confinement of
the Committee may deem proper in the premises." In the investigation Jean L. Arnault at the New Bilibid Prison in Muntinlupa, Rizal,
conducted by the Committee in pursuance of said Resolution, petitioner- until he should have purged himself of contempt of the Senate by
appellee was asked to whom a part of the purchase price, or P440,000, revealing the person to whom he gave the sum of P440,000 in
was delivered. Petitioner-appellee refused to answer this question, connection with the Buenavista and Tambobong Estates deal,
whereupon the Committee resolved on May 15, 1950, to order his and by answering other pertinent questions in connection
commitment to the custody of the Sergeant at-arms of the Philippines therewith;
Senate and imprisoned in the new Bilibid Prison in Rizal until such time
when he shall reveal to the Senate or to the Special Committee the name WHEREAS, after considering the lengthy testimony offered by the
of the person who received the P440,000 and to answer questions said Jean L. Arnault, and the report thereon rendered by the
pertinent thereto. In G.R. No. L-3820, petitioner-appellee herein Senate Special Committee on the said deal, the Senate holds
questioned the validity of the confinement so ordered, by a petition and finds that, despite numerous and generous opportunities
for certiorari filed in this Court. He contended that the Senate of the offered to him at his own instance and solicitation, the said Jean
Philippines has no power to punish him for contempt for refusing to reveal L. Arnault has failed and refused, and continues to fail and refuse,
the name of the person to whom he delivered P440,000., that the to reveal the person to whom he gave the said amount of
Legislature lacks authority to punish him for contempt beyond the term of P440,000, and to answer other pertinent questions in connection
the legislative session, and that the question of the Senate which he with the Buenavista and Tambobong estates deal;
refused to answer is an incriminating question which the appellee is not
bound to answer. All the abovementioned contentions were adversely
WHEREAS, the Senate holds and finds that the situation of the
passed upon by the decision of this Court, so his petition for release was
said Jean L. Arnault has not materially changed since he was
denied.
committed to prison for contempt of the Senate, and since the
Supreme Court of the Philippines, in a judgment long since
In the month of December, 1951, while still in confinement in Bilibid, become final, upheld the power and authority of the Senate to
petitioner-appellee executed an affidavit, Exhibit A, wherein he gives in hold the said Jean L. Arnault in custody, detention, and
detail the history of his life, the events surrounding acquisition of the confinement, said power and authority having been held to be
Buenavista and Tambobong Estates by Gen. Burt, the supposed coercive rather than punitive, and fully justified until the said Jean
L. Arnault should have given the information which he had Special Committee to investigate the Buenavista and Tambobong
withheld and continues contumaciously to withhold; Estates deal.

WHEREAS, the insolent and manifest untruthful statements made Adopted, November 8, 1952 . (Exhibit 0)
by the said Jean L. Arnault on the occasions above referred to
constitute a continuing contempt of the Senate, and an added In his petition for the writ of habeas corpus in the Court of First Instance,
affront to its dignity and authority, such that , were they to be petitioner-appellee alleges: (1) That the acquisition by the Government,
condoned or overlooked, the power and authority of the Senate to through the Rural Progress Administration, of the Buenavista and
conduct investigations would become futile and ineffectual Tambobong Estates was not illegal nor irregular nor scandalous nor
because they could be defied by any person of sufficient malodorous, but was in fact beneficial to the Government; (2) that the
stubbornness and malice; decision of this Court in G. R. No. L-3820 declared that the Senate did
not imprison Arnault "beyond proper limitations", i.e., beyond the period
WHEREAS, the Senate holds and finds that the identity of the longer than arresto mayor, as this is the maximum penalty that can be
person to whom the said Jean L. Arnault gave the amount of imposed under the provisions of Article 150 of the Revised Penal Code;
P440,000 in connection with the Buenavista and Tambobong (3) that petitioner-appellee purged himself of the contempt charges when
estates deal, and the further information which the Senate he disclosed the fact that the one to whom he gave the P440,000 was
requires and which the said Jean L. Arnault arrogantly and Jess D. Santos, and submitted evidence in corroboration thereof; (4) that
contumaciously withholds, is required for the discharge of its the Senate is not justified in finding that the petitioner-appellee did tell the
legislative functions, particularly so that adequate measures can truth when he mentioned Jess D. Santos as the person to whom he gave
be taken to prevent the repetition of similar frauds upon the the P440,000, specially on the basis of the evidence submitted to it; (5)
Government and the People of the Philippines and to recover that the legislative purpose or intention, for which the Senate ordered the
said amount; and confinement may be considered as having been accomplished, and,
therefore, there is no reason for petitioner-appellee's continued
WHEREAS, while not insensible to the appeal of understanding confinement.
and mercy, the Senate holds and finds that the said Jean L.
Arnault, by his insolent and contumacious defiance of the The claim that the purchase of the Buenavista and Tambobong Estates is
legitimate authority of the Senate, is trifling with its proceedings, beneficial to the government and is neither illegal nor irregular is beside
renders himself unworthy of mercy, and, in the language of the the point. To our minds, two questions are decisive of this case. The first
Supreme Court, is his own jailer, because he could open the is: Did the Senate Special Committee believe the statement of the
doors of his prison at any time by revealing the truth; now petitioner-appellee that the person to whom he gave the P440,000 is one
therefore, be it by the name of Jess D. Santos and if it did not, may the court review said
finding? And the second is: If the Senate did not believe the statement, is
Resolved by the Senate of the Philippines, That the Senate hold the continued confinement and detention of the petitioner-appellee, as
and find, as it hereby holds and finds, that Juan L. Arnault has not ordered in Senate Resolution of November 8, 1952, valid?
purged himself of contempt of the Senate, and has in no way
altered his situation since he has committed to coercive not On the first question, the Senate found as a fact that petitioner "has failed
punitive, imprisonment for such contempt on the 15th day of May, and refused, and continues to fail and refuse, to reveal the person to
1950; and that Senate order, as it hereby orders, the Director of whom he gave the amount of P440,000" and that the situation of
Prisons to hold the said Jean L. Arnault, in his custody, and in petitioner "has not materially charged since he was committed to prison."
confinement and detention at the New Bilibid Prison in In the first resolution of the Senate Special Committee of May 15, 1950, it
Muntinlupa, Rizal, in coercive imprisonment, until he should have found that petitioner "refused to reveal the name of the persons to whom
purged himself of the aforesaid contempt to the satisfaction, and he gave the P440,000, as well as to answer other pertinent questions
until order to that effect, of the Senate of the Philippines or of its related to said amount." It is clear and evident that the Senate Committee
did not believe petitioner's statement that the person to whom he
delivered the abovementioned amount is one by the name of Jess D. only instances when judicial intervention may lawfully be invoke are when
Santos. The court a quo, however, arrogating unto itself the power to there has been a violation of a constitutional inhibition, or when there has
review such finding, held that the "petitioner has satisfactorily shown that been an arbitrary exercise of the legislative discretion.
the person of Jess D. Santos actually and physically existed in the human
flesh," that the opinion or conclusion of the Senate Committee is not Under our constitutional system, the powers of government are
borne to out by the evidence produced at the investigation, that the distributed among three coordinate and substantially independent
Senate abused its discretion in making its conclusion and that under organs: the legislative, the executive and the judicial. Each of
these circumstances the only thing that could in justice be done to these departments of the government derives its authority from
petitioner is to order his release and have his case endorsed to the the Constitution which, in turn, is the highest expression of the
prosecution branch of the judicial department for investigation and popular will. Each has exclusive cognizance of the matters within
prosecution as the circumstances warrant. its jurisdiction, and is supreme within its own sphere. (People of
the Philippine Islands, et al. vs. Vera, et al 65 Phil., 56; See also
There is an inherent fundamental error in the course of action that the Angara vs. Electoral Commission, 63 Phil., 139)
lower court followed. It assumed that courts have the right to review the
findings of legislative bodies in the exercise of the prerogative of All that the courts may do, in relation to the proceedings taken against
legislation, or interfere with their proceedings or their discretion in what is petitioner prior to his incarceration, is to determine if the constitutional
known as the legislative process. guarantee of due process has been accorded him before his
incarceration by legislative order, and this because of the mandate of the
The courts avoid encroachment upon the legislature in its Supreme Law of the land that no man shall be deprived life, liberty or
exercise of departmental discretion in the means used to property without due process of law. In the case at bar such right has fully
accomplish legitimate legislative ends. Since the legislature is been extended the petitioner, he having been given the opportunity to be
given a large discretion in reference to the means it may employ heard personally and by counsel in all the proceedings prior to the
to promote the general welfare, and alone may judge what means approval of the Resolution ordering his continued confinement.
are necessary and appropriate to accomplish an end which the
Constitution makes legitimate, the courts cannot undertake to The second question involves in turn the following propositions: Does the
decide whether the means adopted by the legislature are the only Philippine Senate have the power and authority to pass its resolution
means or even the best means possible to attain the end sought, ordering the continued confinement of the petitioner? In the supposition
for such course would best the exercise of the police power of the that such power and authority exist, was such power legitimately
state in the judicial department. It has been said that the exercised after the petitioner had given the name Jess D. Santos? A
methods, regulations, and restrictions to be imposed to attain study of the text of the resolution readily shows that the Senate found that
results consistent with the public welfare are purely of legislative the petitioner-appellee did not disclose, by the mere giving of the name
cognizance, and the determination of the legislature is final, Jess D. Santos, the identity of the person to whom the sum of P440, 000
except when so arbitrary as to be violative of the constitutional was delivered, and, in addition thereto that petitioner withheld said
rights of the citizen. Furthermore, in the absence of a clear identity arrogantly and contumaciously in continued affront of the
violation of a constitutional inhibition, the courts should assume Senate's authority and dignity. Although the resolution studiously avoids
that legislative discretion has been properly exercised. (11 Am. saying that the confinement is a punishment, but merely seeks to coerce
Jur., pp. 901-902). the petitioner into telling the truth, the intention is evident that the
continuation of the imprisonment ordered is in fact partly unitive. This
These the judicial department of the government has no right or power or may be inferred from the confining made in the resolution that petitioner-
authority to do, much in the same manner that the legislative department appellee's acts were arrogant and contumacious and constituted an
may not invade the judicial realm in the ascertainment of truth and in the affront to the Senate's dignity and authority. In a way, therefore, the
application and interpretation of the law, in what is known as the judicial petitioner's assumption that the imprisonment is punitive is justified by the
process, because that would be in direct conflict with the fundamental language of the resolution, wherefore the issue now before Us in whether
principle of separation of powers established by the Constitution. The the Senate has the power to punish the contempt committed against it
under the circumstances of the case. This question is thus squarely S. 168, 26 L. ed. 377, there was no legislative duty to be
presented before Us for determination. performed; or because, as in Marshall vs. Gordon, 243 U. S. 521,
61 L. ed. 881, 37 S. Ct. 448, L. R. A. 1917F, 279, Ann. Cas.
In the previous case of this same petitioner decided by this Court, G. R. 1918B, 371, the act complained of is deemed not to be of a
No. L-38201, Arnault vs. Nazareno, et al. (46 Off. Gaz., No. 7, 3100), it character to obstruct the legislative process. But, where the
was admitted and we had ruled that the Senate has the authority to offending act was of a nature to obstruct the legislative process,
commit a witness if he refuses to answer a question pertinent to a the fact that the obstruction has since been removed, or that its
legislative inquiry, to compel him to give the information, i.e., by reason of removal has become impossible is without legal significance.
its coercive power, not its punitive power. It is now contended by
petitioner that if he committed an offense of contempt or perjury against The power to punish a private citizen for a past and completed
the legislative body, because he refused to reveal the identity of the act was exerted by Congress as early as 1795; and since then it
person in accordance with the demands of the Senate Committee, the has been exercised on several occasions. It was asserted, before
legislature may not punish him, for the punishment for his refusal should the Revolution, by the colonial assemblies, in intimation of the
be sought through the ordinary processes of the law, i. e., by the British House of Commons; and afterwards by the Continental
institution of a criminal action in a court of justice. Congress and by state legislative bodies. In Anderson vs. Dunn,
6 Wheat, 204, 5 L. ed. 242, decided in 1821, it was held that the
American legislative bodies, after which our own is patterned, have the House had power to punish a private citizen for an attempt to
power to punish for contempt if the contempt has had the effect of bribe a member. No case has been found in which an exertion of
obstructing the exercise by the legislature of, or deterring or preventing it the power to punish for contempt has been successfully
from exercising, its legitimate functions (Annotation to Jurney vs. challenged on the ground that, before punishment, the offending
MacCraken, 79 L. ed. 814). While the power of the United States Senate act had been consummated or that the obstruction suffered was
to punish for contempt was not clearly recognized in its earlier decision irremediable. The statement in the opinion in
(See Marshal vs. Gordon, 61 L. ed. 881), the Supreme Court of the Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448,
United States two decades ago held that such power and authority exist. L. R. A. 1917F. 279 Ann. Cas. 1918B, 371, supra, upon which
In the case of Jurney vs. MacCraken (294 U. S. 123, 79 L. ed. 802), the MacCracken relies, must be read in the light of the particular
question before it was whether or not the Senate could order the facts. It was there recognized that the only jurisdictional test to be
confinement of a private citizen because of the destruction and removal applied by the court is the character of the offense; and that the
by him of certain papers required to be produced. The court said: continuance of the obstruction, or the likelihood of its repetition,
are considerations for the discretion of the legislators in meting
First, The main contention of MacCracken is that the so-called out the punishment.
power to punish for contempt may never be exerted, in the case
of a private citizen, solely qua punishment. The argument is that Here, we are concerned not with an extention of congressional
the power may be used by the legislative body merely as a privilege, but with vindication of the established and essential
means of removing an existing obstruction to the performance of privilege of requiring the production of evidence. For this purpose,
its duties; that the power to punish ceases as soon as the the power to punish for a past contempt is an appropriate means.
obstruction has been removed, or its removal has become Compare Ex parte Nugent (C. C.) 1 Brunner, Col. Cas. 296, Fed.
impossible; and hence that there is no power to punish a witness Cas No. 10375; Steward vs. Bleine, 1 MacArth. 453. The
who, having been requested to produce papers, destroys them apprehensions expressed from time to time in congressional
after service of the subpoena. The contention rests upon a debates, in opposition to particular exercise of the contempt
misconception of the limitations upon the power of the Houses of power concerned, not the power to punish, as such, but the
Congress to punish for contempt. It is true that the scope of the broad, undefined privileges which it was believed might find
power is narrow. No act is so punishable unless it is of a nature to sanction in that power. The ground for such fears has since been
obstruct the performance of the duties of the legislature. This may effectively removed by the decisions of this Court which hold that
be lack of power, because, as in Kilbourn vs. Thompson, 103 U. assertions of congressional privilege are subject to judicial
review. Melbourn vs. Thompson, 103 U. S. 168, 26 L. ed. original question which he had previously been required to answer. In
377, supra; and that the power to punish for contempt may not be order that the petitioner may be considered as having purged himself of
extended to slanderous attacks which presents no immediate the contempt, it is necessary that he should have testified truthfully,
obstruction to legislative processes. Marshall vs. Gordon, 243 U. disclosing the real identity of the person subject of the inquiry. No person
S. 521, 61 L. ed. 881, 37 S. Ct. 448, L.R. A. 1917F, Ann. Cas. guilty of contempt may purge himself by another lie or falsehood; this
1918B, 731 supra. would be repetition of the offense. It is true that he gave a name, Jess D.
Santos, as that of the person to whom delivery of the sum of P440,000
The principle that Congress or any of its bodies has the power to punish was made. The Senate Committee refused to believe, and justly, that is
recalcitrant witnesses is founded upon reason and policy. Said power the real name of the person whose identity is being the subject of the
must be considered implied or incidental to the exercise of legislative inquiry. The Senate, therefore, held that the act of the petitioner
power, or necessary to effectuate said power. How could a legislative continued the original contempt, or reiterated it. Furthermore, the act
body obtain the knowledge and information on which to base intended further interpreted as an affront to its dignity. It may well be taken as
legislation if it cannot require and compel the disclosure of such insult to the intelligence of the honorable members of the body that
knowledge and information, if it is impotent to punish a defiance of its conducted the investigation. The act of defiance and contempt could not
power and authority? When the framers of the Constitution adopted the have been clearer and more evident. Certainly, the Senate resolution
principle of separation of powers, making each branch supreme within declaring the petitioner in contempt may not be claimed as an exertion of
the realm of its respective authority, it must have intended each an arbitrary power.
department's authority to be full and complete, independently of the
other's authority and power. And how could the authority and power One last contention of petitioner remains to be considered. It is the claim
become complete if for every act of refusal, every act of defiance, every that as the period of imprisonment has lasted for a period which
act of contumacy against it, the legislative body must resort to the judicial exceeded that provided by law punishment for contempt, i. e., 6 months
department for the appropriate remedy, because it is impotent by itself to of arresto mayor, the petitioner is now entitled to be released. This claim
punish or deal therewith, with the affronts committed against its authority is not justified by the record. Petitioner was originally confined by
or dignity. The process by which a contumacious witness is dealt with by Resolution No. 17 on May 15, 1950. On December 13, 1951, he
the legislature in order to enable it to exercise its legislative power or executed his affidavit and thereafter he was called to testify again before
authority must be distinguished from the judicial process by which the Senate Committee. The latter passed its Resolution No. 114 on
offenders are brought to the courts of justice for the meting of the November 6, 1952, and he presented the petition for habeas corpus in
punishment which the criminal law imposes upon them. The former falls this case on March 3, 1953, i. e., five months after the last resolution
exclusively within the legislative authority, the latter within the domain of when the Senate found that the petitioner committed another contempt. It
the courts; because the former is a necessary concommitant of the is not true, therefore, that the petitioner's punishment is beyond the full
legislative power or process, while the latter has to do with the period prescribed in the criminal law.
enforcement and application of the criminal law.
Besides, the last resolution of November 8, 1952 is also of a coersive
We must also and that provided the contempt is related to the exercise of nature, in the sense that the Senate Committee still demands and
the legislative power and is committed in the course of the legislative requires the disclosure of the fact which the petitioner had obstinately
process, the legislature's authority to deal with the defiant and refused to divulge. While the Philippine Senate has not given up hope
contumacious witness should be supreme, and unless there is a manifest that the petitioner may ultimately disclose the record, it is improper for the
and absolute disregard of discretion and a mere exertion of arbitrary courts to declare that the continued confinement is an abuse of the
power coming within the reach of constitutional limitations, the exercise of legislative power and thereby interfere in the exercise of the legislative
the authority is not subject to judicial interference. (Marshall vs. discretion.
Gordon, supra).
The judgment appealed from should be, as it hereby is, reversed, and the
The next question concerns the claim that the petitioner has purged petition for the issuance of the writ ofhabeas corpus denied. The order of
himself of contempt, because he says he has already answered the the court allowing the petitioner to give bail is declared null and void and
the petitioner is hereby ordered to be recommitted to the custody of the On 30 July 1987, the Republic of the Philippines, represented by the
respondent. With cost against the petitioner-appellee. Presidential Commission on Good Government (PCGG), assisted by the
Solicitor General, filed with the Sandiganbayan Civil Case No. 0035
(PCGG Case No. 35) entitled "Republic of the Philippines vs. Benjamin
"Kokoy" Romualdez, et al.", for reconveyance, reversion, accounting,
restitution and damages.
Republic of the Philippines
SUPREME COURT The complaint was amended several times by impleading new
Manila defendants and/or amplifying the allegations therein. Under the Second
Amended Complaint, 1 the herein petitioners were impleaded as party
defendants.
EN BANC
The complaint insofar as pertinent to herein petitioners, as defendants,
alleges among others that:
G.R. No. 89914 November 20, 1991
14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez
Romualdez, acting by themselves and/or in unlawful concert with
JOSE F.S. BENGZON JR., ABELARDO TERMULO, JOSE Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking
MANTECON, VICENTE MILLS JR., LEONARDO GAMBOA, KURT undue advantage of their relationship, influence and connection with the
BACHMANN JR., JOSE V.E. JIMENEZ, ERNESTO CALUYA, latter Defendant spouses, engaged in devices, schemes and strategems
AGERICO UNGSON, SUSAN ROXAS, ELVIE CASTILLO, and to unjuestly enrigh themselves at the expense of Plaintiff and the Filipino
CYNTHIA SABIDO LIMJAP, petitioners, people, among others:
vs.
THE SENATE BLUE RIBBON COMMITTEE AND ITS MEMBERS,
(a) Obatained, with the active collaboration of Defendants Sene J.
represented by and through the CHAIRMAN, HON. WIGBERTO
Gabaldon, Mario D. Camacho, Mamerto Nepomuceno, Carlos J. Valdez,
TAÑADA, respondents, JOSE S. SANDEJAS, intervenor.
Cesar C. Zalamea and Francisco Tantuico, Atty. Jose Bengzon, Jr. and
his law partners, namely: Edilberto S. Narciso, Jr., Jose Vicente E.
Bengzon, Zarraga, Narciso, Cudala, Pecson & Bengson for petitioners. Jimenez, Amando V. Faustino, Jr., and Leonardo C. Cruz; Jose S.
Balgos & Perez for intervening petitioner. Sandejas and his fellow senior managers of FMMC/PNI Holdings groups
of companies such as Leonardo Gamboa, Vicente T. Mills, Jr., Jose M.
Eddie Tamondong and Antonio T. Tagaro for respondents. Mantecon, Abelardo S. Termulo, Rex C. Drilon II and Kurt Bachmann, Jr.,
control of some of the biggest business enterprises in the Philippines,
such as the Manila Corporation (MERALCO), Benguet Consolidated and
the Philippine Commercial International Bank (PCI Bank) by employing
PADILLA, J.: devious financial schemes and techniques calculated to require the
massive infusion and hemorrhage of government funds with minimum or
This is a petition for prohibition with prayer for the issuance of a negligible "cashout" from Defendant Benjamin Romualdez...
temporary restraining order and/or injuective relief, to enjoin the
respondent Senate Blue Ribbon committee from requiring the petitioners xxx xxx xxx
to testify and produce evidence at its inquiry into the alleged sale of the
equity of Benjamin "Kokoy" Romualdez to the Lopa Group in thirty-six (m) manipulated, with the support, assistance and collaboration of
(36) or thirty-nine (39) corporations. Philgurantee officials led by chairman Cesar E.A. Virata and the Senior
managers of FMMC/PNI Holdings, Inc. led by Jose S. Sandejas, Jr., Jose
M. Mantecom and Kurt S. Bachmann, Jr., among others, the formation of D. Camacho amd Senen J. Gabaldon as members of the Board of
Erectors Holdings, Inc. without infusing additional capital solely for the Directors of the Philippine Commercial International bank (PCIB), the
purpose of Erectors Incorporated with Philguarantee in the amount of Meralco Pension Fund (Fund, for short) in the amount of P25 million by
P527,387,440.71 with insufficient securities/collaterals just to enable cuasing it to be invested in the PCIB and through the Bank's TSG,
Erectors Inc, to appear viable and to borrow more capitals, so much so assigned to PCI Development and PCI Equity at 50% each, the Fund's
that its obligation with Philgurantee has reached a total of more than P2 (a) 8,028.011 common shares in the Bank and (b) "Deposit in
Billion as of June 30, 1987. Subscription" in the amount of P4,929.972.50 but of the agreed
consideration of P28 million for the said assignment, PCI Development
(n) at the onset of the present Administration and/or within the week and PCI Equity were able to pay only P5,500.00 downpayment and the
following the February 1986 People's Revolution, in conspiracy with, first amortization of P3,937,500.00 thus prompting the Fund to rescind its
supoort, assistance and collaboration of the abovenamed lawyers of the assignment, and the consequent reversion of the assigned brought the
Bengzon Law Offices, or specifically Defendants Jose F.S. Bengzon, Jr., total shareholding of the Fund to 11,470,555 voting shares or 36.8% of
V.E. Jimenez, Amando V. Faustino, Jr., and Edilberto S. Narciso, Jr., the voting stock of the PCIB, and this development (which the defendants
manipulated, shcemed, and/or executed a series of devices intended to themselves orchestrated or allowed to happen) was used by them as an
conceal and place, and/or for the purpose of concealing and placing, excuse for the unlawful dismantling or cancellation of the Fund's 10
beyond the inquiry and jurisdiction of the Presidential Commission on million shares for allegedly exceeding the 30-percent ceiling prescribed
Good Government (PCGG) herein Defendant's individual and collective by Section 12-B of the General Banking Act, although they know for a
funds, properties, and assets subject of and/or suited int he instant fact that what the law declares as unlawful and void ab initio are the
Complaint. subscriptions in excess of the 30% ceiling "to the extent of the excess
over any of the ceilings prescribed ..." and not the whole or entire
(o) manuevered, with the technical know-how and legalitic talents of the stockholding which they allowed to stay for six years (from June 30, 1980
FMMC senior manager and some of the Bengzon law partners, such as to March 24, 1986);
Attys. Jose F.S. Bengzon, Jr., Edilberto S. Narciso, Jr., Amando V.
Faustino, Jose Vicente E. Jimenez and Leonardo C. Cruz, the purported (q) cleverly hid behind the veil of corporate entity, through the use of the
sale of defendant Benjamin Romualdez's interests in the (i) Professional names and managerial expertise of the FMMC senior manager and
Managers, (ii) A & E International Corporation (A & E), (iii) First Manila lawyers identified as Jose B. Sandejas, Leonardo Gamboa, Vicente T.
Managerment Corporation (FMMC), (iv) Philippine World Travel Inc. Mills, Abelardo S, Termulo, Edilberto S. Narciso, Jr., Jose M. Mantecon,
(PWTI) and its subsidiaries consisting of 36 corporations in all, to PNI Rex C. Drilon II, Kurt Bachmann, Jr. together with the legal talents of
Holdings, Inc. (wjose purported incorporations are all members of Atty. corporate lawyers, such as Attys. Jose F.S. Bengzon, Jr., Jose V.E.
Jose F.S. Bengzon's law firm) for only P5 million on March 3, 1986 or Jimenez, Amando V. Faustino, Jr., and Leonardo C. Cruz, the ill-gotten
three days after the creation of the Presidential Commission on Good wealth of Benjamin T. Romualdez including, among others, the 6,229,177
Government on February 28, 1986, for the sole purpose of deceiving and shares in PCIB registered in the names of Trans Middle East Phils.
preempting the Government, particularly the PCGG, and making it Equities, Inc. and Edilberto S. Narciso, Jr. which they refused to
appear that defendant Benjamin Romualdez had already divested himself surrender to PCGG despite their disclosure as they tried and continue to
of his ownership of the same when in truth and in fact, his interests are exert efforts in getting hold of the same as well as the shares in Benguet
well intact and being protected by Atty. Jose F.S. Bengzon, Jr. and some registered in the names of Palm Avenue Holdings and Palm Avenue
of his law partners, together with the FMMC senior managers who still Realty Development Corp. purportedly to be applied as payment for the
control and run the affiars of said corporations, and in order to entice the claim of P70 million of a "merger company of the First Manila
PCGG to approve the said fictitious sale, the above-named defendants Managerment Corp. group" supposedly owned by them although the truth
offered P20 million as "donation" to the Government; is that all the said firms are still beneficially owned by defendants
Benjamin Romualdez.
(p) misused, with the connivance, support and technical assitance of the
Bengzon law firm represented by Atty. Jose F.S. Bengzon, Jr. as legal xxx xxx xxx
counsel, together with defendants Cesar Zalamea, Antonio Ozaeta, Mario
On 28 September 1988, petitioner (as defendants) filed their respective Claiming that the Senate Blue Ribbon Committee is poised to subpoena them and required their
answers. 2 Meanwhile, from 2 to 6 August 1988, conflicting reports on the attendance and testimony in proceedings before the Committee, in excess of its jurisdiction and
disposition by the PCGG of the "Romualdez corporations" were carried in legislative purpose, in clear and blatant disregard of their constitutional rights, and to their grave
various metropolitan newspapers. Thus, one newspaper reported that the and irreparable damager, prejudice and injury, and that there is no appeal nor any other plain,
Romuladez firms had not been sequestered because of the opposition of speedy and adequate remedy in the ordinary course of law, the petitioners filed the present
certain PCGG officials who "had worked prviously as lawyers of the
petition for prohibition with a prayer for temporary restraning order and/or injunctive relief.
Marcos crony firms." Another daily reported otherwise, while others
Meanwhile, one of the defendants in Civil Case No. 0035 before the Sandiganbayan, Jose S. Sandejas, filed with the Court of
declared that on 3 March 1986, or shortly after the EDSA February 1986
revolution, the Romualdez companies" were sold for P5 million, without which the Court granted in the resolution 9 of 21 December
motion for intervention, 8

PCGG approval, to a holding company controlled by Romualdez, and that 1989, and required the respondent Senate Blue Ribbon Committee to
Ricardo Lopa, the President's brother-in-law, had effectively taken over comment on the petition in intervention. In compliance, therewith,
the firms, even pending negotiations for the purchase of the corporations, respondent Senate Blue Ribbon Committee filed its comment 10 thereon.
for the same price of P5 million which was reportedly way below the fair
value of their assets. 3 Before discussing the issues raised by petitioner and intervenor, we will
first tackle the jurisdictional question raised by the respondent
On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan Ponce Enrile delivered a speech "on a matter of Committee.
personal privilege" before the Senate on the alleged "take-over personal privilege" before the Senate on the alleged
"take-over of SOLOIL Incorporated, the flaship of the First Manila Management of Companies (FMMC) by Ricardo
In its comment, respondent Committee claims that this court cannot
Lopa" and called upon "the Senate to look into the possible violation of the law in the case, particularly with regard to
properly inquire into the motives of the lawmakers in conducting
Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act." 4
legislative investigations, much less cna it enjoin the Congress or any its
regular and special commitees — like what petitioners seek — from
On motion of Senator Orlando Mercado, the matter was referred by the Senate to the Committee on Accountability of
making inquiries in aid of legislation, under the doctrine of separation of
Public Officers (Blue Ribbon Committee). 5
Thereafter, the Senate Blue Ribbon Committee powers, which obtaines in our present system of government.
started its investigation on the matter. Petitioners and Ricardo Lopa were
subpoenaed by the Committee to appear before it and testify on "what The contention is untenable. In Angara vs. Electoral Commission, 11 the
they know" regarding the "sale of thirty-six (36) corporations belonging to Court held:
Benjamin "Kokoy" Romualdez."
The separation of powers is a fundamental principle in our system of
At the hearing held on 23 May 1989, Ricardo Lopa declined to testify on government. It obtains not hrough express provision but by actual division
the ground that his testimony may "unduly prejudice" the defendants in in our Constitution. Each department of the government has exclusive
Civil Case No. 0035 before the Sandiganbayan. Petitioner Jose F.S. cognizance of matters wihtin its jurisdiction, and is supreme within its own
Bengzon, Jr. likewise refused to testify involing his constitutional right to sphere. But it does not follow from the fact that the three powers are to be
due process, and averring that the publicity generated by respondents kept separate and distinct that the Constitution intended them to be
Committee's inquiry could adversely affect his rights as well as those of absolutely unrestrained and independent of each other. The Constitution
the other petitioners who are his co-defendants in Civil Case No. 0035 has provided for an elaborate system of checks and balances to secure
before the Sandiganbayan. coordination in the workings of the various departments of the
government...
The Senate Blue Ribbon Committee, thereupon, suspended its inquiry
and directed the petitioners to file their memorandum on the constitutional xxx xxx xxx
issues raised, after which, it issued a resolution 6 dated 5 June 1989
rejecting the petitioner's plea to be excused from testifying, and the
But in the main, the Constitution has blocked out with deft strokes and in
Committee voted to pursue and continue its investigation of the matter.
bold lines, allotment of power to the executive, the legislative and the
Senator Neptali Gonzales dissented. 7
judicial departments of the government. The ovelapping and interlacing of
funcstions and duties between the several deaprtments, however,
sometimes makes it hard to say just where the political excitement, the
great landmarks of the Constitution are apt to be forgotten or marred, if The Court is thus of the considered view that it has jurisdiction over the present
not entirely obliterated, in cases of conflict, the judicial departments is the controversy for the purpose of determining the scope and extent of the power of the
only constitutional organ which can be called upon to determine the
Senate Blue Ribbon Committee to conduct inquiries into private affirs in purported aid
proper allocation of powers between the several departments and among
the integral or constituent units thereof. of legislation.

xxx xxx xxx Coming to the specific issues raised in this case, petitioners contend that (1) the
Senate Blue Ribbon Committee's inquiry has no valid legislative purpose, i.e., it is not
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution done in aid of legislation; (2) the sale or disposition of hte Romualdez corporations is
itself has provided for the instrumentality of the judiciary as the rational a "purely private transaction" which is beyond the power of the Senate Blue Ribbon
way. And when the judiciary mediates to allocate constitutional
Committee to inquire into; and (3) the inquiry violates their right to due process.
boundaries; it does not assert any superiority over the other departments;
The 1987 Constition expressly recognizes the power of both houses of Congress to conduct inquiries in aid of
it does not inr eality nullify or invalidate an act of the legislature, but only
legislation. 14
asserts the solemn and sacred obligation assigned to it by tyhe
Constitution to determine conflicting claims of authority under the
Constitution and to established for the parties in an actual controversy the Thus, Section 21, Article VI thereof provides:
rights which that instrument secures and guarantess to them. This is in
thruth all that is involved in what is termed "judicial supremacy" which The Senate or the House of Representatives or any of its respective
properly is the power of judicial review under the Constitution. Even the, committee may conduct inquiries in aid of legislation in accordance with
this power of judicial review is limited to actual cases and controversies to its duly published rules of procedure. The rights of persons appearing in
be exercised after full opportunity of argument by the parties, and limited or affected by such inquiries shall be respected. 15
further to the constitutional question raised or the very lis mota presented. As held in Jean L. Arnault vs. Leon Nazareno, et al., 16
Any attempt at abstraction could only lead to dialectics and barren legal the inquiry,
questions and to sterile conclusions unrelated to actualities. Narrowed as to be within the jurisdiction of the legislative body making it, must be
its function is in this manner, the judiciary does not pass upon questions material or necessary to the exervise of a power in it vested by the
of wisdom, justice or expediency of legislation. More thatn that, courts Constitution, such as to legislate or to expel a member.
accord the presumption of constitutionality to legislative enactments, not
only because the legislature is presumed to abide by the Constitution but Under Sec. 4 of the aforementioned Rules, the Senate may refer to any
also becuase the judiciary in the determination of actual cases and committee or committees any speech or resolution filed by any Senator
controversies must reflect the wisdom and justice of the people as which in tis judgment requires an appropriate inquiry in aid of legislation.
expressed through their representatives in the executive and legislative In order therefore to ascertain the character or nature of an inquiry, resort
departments of the government. must be had to the speech or resolution under which such an inquiry is
proposed to be made.
The "allocation of constituional boundaries" is a task that this Court must
perfomr under the Constitution. Moreowever, as held in a recent A perusal of the speech of Senator Enrile reveals that he (Senator Enrile)
case, 12 "(t)he political question doctrine neither interposes an obstacle to made a statement which was published in various newspapers on 2
judicial determination of the rival claims. The jurisdiction to delimit September 1988 accusing Mr. Ricardo "Baby" Lopa of "having taken over
constitutional boundaries has been given to this Court. It cannot abdicate the FMMC Group of Companies." As a consequence thereof, Mr. Lopa
that obligation mandated by the 1987 Constitution, although said wrote a letter to Senator Enrile on 4 September 1988 categorically
provision by no means does away with kthe applicability of the principle in denying that he had "taken over " the FMMC Group of Companies; that
appropriate cases." 13 former PCGG Chairman Ramon Diaz himself categorically stated in a
telecast interview by Mr. Luis Beltran on Channel 7 on 31 August 1988 discussing and representing SOLOIL, so the order of
that there has been no takeover by him (Lopa); and that theses repeated sequestration will finally be lifted. While we attempted to carry on
allegations of a "takeover" on his (Lopa's) part of FMMC are baseless as our order, management refused to cooperate and vehemently
they are malicious. turned down our request to make available to us the records of
the company. In fact it was obviously clear that they will meet us
The Lopa reply prompted Senator Enrile, during the session of the with forcethe moment we insist on doing normally our assigned
Senate on 13 September 1988, to avail of the privilege hour, 17 so that he task. In view of the impending threat, and to avoid any untoward
could repond to the said Lopa letter, and also to vindicate his reputation incident we decided to temporarily suspend our work until there is
as a Member of the Senate of the Philippines, considering the claim of a more categorical stand of this Commission in view of the
Mr. Lopa that his (Enrile's) charges that he (Lopa) had taken over the seemingly influential represetation being made by SOLOIL for us
FMMC Group of Companies are "baseless" and "malicious." Thus, in his not to continue our work."
speech, 18Senator Enrile said, among others, as follows:
Another pertinent portion of the same memorandum is paragraph five,
Mr. President, I rise this afternnon on a matter of personal privilege; the which reads as follows, and I quote Mr. President:
privilege being that I received, Mr. President, a letter dated September 4,
1988, signed by Mr. ricardo A. Lopa, a.k.a. or Baby Lopa, wherein he "The President, Mr. Gamboa, this is, I understand, the President
denied categorically that he has taken over the First Manila Management of SOLOIL, and the Plant Superintendent, Mr. Jimenez including
Group of Companies which includes SOLOIL Incorporated. their chief counsel, Atty. Mandong Mendiola are now saying that
there have been divestment, and that the new owner is now Mr.
xxx xxxx xxx Ricardo Lopa who according to them, is the brother-in-law of the
President. They even went further by telling us that even Peping
In answer to Mr. Lopa, I will quote pertinent portions from an Official Cojuangco who we know is the brother of her excellency is also
Memorandum to the Presidential Commission of Good Government interested in the ownership and management of SOLOIL. When
written and signed by former Governor, now Congressman Jose he demanded for supporting papers which will indicate aforesaid
Ramirez, in his capacity as head of the PCGG Task Force for Region divestment, Messrs. Gamboa, Jimenez and Mendiola refused
VIII. In his memorandum dated July 3, 1986, then Governor Ramirez vehemently to submit these papers to us, instead they said it will
stated that when he and the members of his task force sought to serve a be submitted directly to this Commission. To our mind their
sequestration order on the management of SOLOIL in Tanauan, Leyte, continuous dropping of names is not good for this Commission
management officials assured him that relatives of the President of the and even to the President if our dersire is to achieve
Philippines were personally discussing and representing SOLOIL so that respectability and stability of the government."
the order of sequestration would be lifted and that the new owner was Mr.
Ricardo A. Lopa. The contents of the memorandum of then Governor and now
Congressman Jose Ramirez were personally confirmed by him in a news
I will quote the pertinent portions in the Ramire's memorandum. interview last September 7, 1988.

The first paragraph of the memorandum reads as follows and I quote, Mr. xxx xxxx xxx
President:
Also relevant to this case, Mr. President, is a letter of Mr. Ricardo Lopa
"Our sequestration work of SOLOIL in Tanauan, Leyte was not himself in August 11, 1988 issue of the newspaper Malaya headlined "On
heeded by management because they said another Alleged Takeover of Romualdez Firms."
representation was being made to this Commission for the
ventual lifting of our sequestrationorder. They even assured us Mr. Lopa states in the last paragraph of the published letter and I quote
that Mr. Ricardo Lopa and Peping Cojunangco were personally him:
12. As of this writing, the sales agreement is under review by the Lopaa Group. There appears to be, therefore, no intended
PCGG solely to determine the appropriate price. The sale of legislation involved.
these companies and our prior rigtht to requires them have never
been at issue. The Court is also not impressed with the respondent Committee's
argument that the questioned inquiry is to be conducted pursuant
Perhaps I could not make it any clearer to Mr. Lopa that I was not really to Senate Resolution No. 212. The said resolution was introduced
making baseless and malicious statements. by Senator Jose D. Lina in view of the representaions made by
leaders of school youth, community groups and youth of non-
Senator Enrile concluded his privilege speech in the following tenor: governmental organizations to the Senate Committee on Youth
and Sports Development, to look into the charges against the
Mr. President, it may be worthwhile for the Senate to look into the PCGG filed by three (3) stockholders of Oriental petroleum, i.e.,
possible violation of the law in the case particularly with regard to that it has adopted a "get-rich-quick scheme" for its nominee-
Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, Section directors in a sequestered oil exploration firm.The pertinent
5 of which reads as follows and I quote: portion of Senate Resolution No. 212 reads as follows:

Sec. 5. Prohibition on certain relatives. — It shall be unlawful for xxx xxx xxx
the spouse or for nay relative, by consanguinity or affinity, within
the third civil degree, of the President of the Philippines, the Vice- WHEREAS, recent developments have shown that no
President of the Philippines, the President of the Senate, or the less than the Solicitor-General has stated that the PCGG
Speaker of the House of Representatives, to intervene directly or Chairman and at least three Commissioners should resign
indirectly, in any business, transaction, contract or application and that the agency should rid itself of "ineptness,
with the Government: Provided, that this section shall not apply to incompetence and corruption" and that the
any person who prior to the assumption of office of any of the Sandiganbayan has reportedly ordered the PCGG to
above officials to whom he is related, has been already dealing answer charges filed by three stockholders of Oriental
with the Government along the same line of business, nor to any Petroleum that it has adopted a "get-rich-quick scheme"
transaction, contract or application filed by him for approval of for its nominee-directors in a sequestered oil exploration
which is not discretionary on the part of the officials concerned firm;
but depends upon compliance with requisites provided by law,
nor to any act lawfully performed in an official capacity or in the WHEREAS, leaders of school youth, community groups
exercise of a profession. and youth of non-governmental organization had made
representations to the Senate Committee on Youth and
Mr. President, I have done duty to this Senate and to myself. I leave it to Sports Development to look into the charges against the
this august Body to make its own conclusion. PCGG since said agency is a symbol of the changes
expected by the people when the EDSA revolution took
Verily, the speech of Senator Enrile contained no suggestion of place and that the ill-gotten wealth to be recovered will
contemplated legislation; he merely called upon the Senate to fund priority projects which will benefit our people such as
look into a possible violation of Sec. 5 of RA No. 3019, otherwise CARP, free education in the elementary and secondary
known as "The Anti-Graft and Corrupt Practices Act." I other levels reforestration, and employment generation for rural
words, the purpose of the inquiry to be conducted by respondent and urban workers;
Blue Ribbon commitee was to find out whether or not the relatives
of President Aquino, particularly Mr. ricardo Lopa, had violated WHEREAS, the government and the present leadeship
the law in connection with the alleged sale of the 36 or 39 must demonstrate in their public and private lives integrity,
corporations belonging to Benjamin "Kokoy" Romualdez to the honor and efficient management of government services
lest our youth become disillusioned and lose hope and existing laws as well as proposed, or possibly needed
return to an Idelogy and form of government which is statutes. It includes surveys of defects in our
repugnant to true freedom, democratic participation and social,economic, or political system for the purpose of
human rights: Now, therefore, be it. enabling Congress to remedy them. It comprehends
probes into departments of the Federal Government to
Resolved by the Senate, That the activities of the expose corruption, inefficiency or waste. But broad asis
Presidential Commission on Good Government be this power of inquiry, it is not unlimited. There is no
investigated by the appropriate Committee in connection general authority to expose the private affairs
with the implementation of Section 26, Article XVIII of the ofindividuals without justification in terms of the functions
Constitution. 19 of congress. This was freely conceded by Solicitor
General in his argument in this case. Nor is the Congress
a law enforcement or trial agency. These are functions of
Thus, the inquiry under Senate Resolution No. 212 is to look into the the executive and judicial departments of government. No
charges against the PCGG filed by the three (3) stockholders of Oriental inquiry is an end in itself; it must be related to and in
furtherance of a legitimate task of Congress.
Petroleum in connection with the implementation of Section 26, Article XVIII
Investigations conducted soly for the personal
of the Constitution. aggrandizement of the investigators or to "punish" those
investigated are indefensible. (emphasis supplied)
It cannot, therefore, be said that the contemplated inquiry on the subject of
It can not be overlooked that when respondent Committee decide
the privilege speech of Senator Juan Ponce Enrile, i.e., the alleged sale of
to conduct its investigation of the petitioners, the complaint in Civil
the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez to the No. 0035 had already been filed with the Sandiganbayan. A
Lopa Group is to be conducted pursuant to Senate Resolution No. 212 perusal of that complaint shows that one of its principal causes of
action against herein petitioners, as defendants therein, is the
because, firstly, Senator Enrile did not indict the PCGG, and, secondly,
alleged sale of the 36 (or 39) corporations belonging to Benjamin
neither Mr. Ricardo Lopa nor the herein petitioners are connected with the "Kokoy" Romualdez. Since the issues in said complaint had long
government but are private citizens. been joined by the filing of petitioner's respective answers
thereto, the issue sought to be investigated by the respondent
It appeals, therefore, that the contemplated inquiry by respondent Committee
Commitee is one over which jurisdiction had been acquired by the
is not really "in aid of legislation" becuase it is not related to a purpose within Sandiganbayan. In short, the issue had been pre-empted by that
the jurisdiction of Congress, since the aim of the investigation is to find out court. To allow the respondent Committee to conduct its own
investigation of an issue already before the Sandiganbayan would
whether or not the ralatives of the President or Mr. Ricardo Lopa had
not only pose the possibility of conflicting judgments betweena
violated Section 5 RA No. 3019, the "Anti-Graft and Corrupt Practices Act", a legislative commitee and a judicial tribunal, but if the Committee's
matter that appears more within the province of the courts rather than of the judgment were to be reached before that of the Sandiganbayan,
the possibility of its influence being made to bear on the ultimate
legislature. Besides, the Court may take judicial notice that Mr. Ricardo Lopa
judgment of the Sandiganbayan can not be discounted.
died during the pendency of this case. In John T. Watkins vs. United
States, 20
it was held held: In fine, for the rspondent Committee to probe and inquire into the
same justiciable controversy already before the Sandiganbayan,
would be an encroachment into the exclusive domain of judicial
... The power of congress to conduct investigations in jurisdiction that had much earlier set in. In Baremblatt vs. United
inherent in the legislative process. That power is broad. it States, 21 it was held that:
encompasses inquiries concerning the administration of
Broad as it is, the power is not, howevern, without Petitioner, as accused, occupies a different tier of
limitations. Since congress may only investigate into protection from an ordinary witness. Whereas an ordinary
those areas in which it may potentially legislate or witness may be compelled to take the witness stand and
appropriate, it cannot inquire into matters which are within claim the privilege as each question requiring an
the exclusive province of one of the other branches of the incriminating answer is hot at him, an accused may
government. Lacking the judicial power given to the altother refuse to take the witness stand and refuse to
Judiciary, it cannot inquire into mattes that are exclusively answer any all questions.
the concern of the Judiciary. Neither can it suplant the
Executive in what exclusively belongs to the Executive. ... Moreover, this right of the accused is extended to respondents in
Now to another matter. It has been held that "a congressional administrative investigations but only if they partake of the nature
committee's right to inquire is 'subject to all relevant limitations of a criminal proceeding or analogous to a criminal proceeding.
placed by the Constitution on governmental action,' including "'the In Galman vs. Pamaran,26 the Court reiterated the doctrine
relevant limitations of the Bill of Rights'." 22 in Cabal vs. Kapuanan (6 SCRA 1059) to illustrate the right of
witnesses to invoke the right against self-incrimination not only in
In another case — criminal proceedings but also in all other types of suit

... the mere semblance of legislative purpose would not justify an It was held that:
inquiry in the face of the Bill of Rights. The critical element is the
We did not therein state that since he is not an accused
exeistence of, and the weight to be ascribed to, the interest of the and the case is not a criminal case, Cabal cannot refuse
Congress in demanding disclosures from an unwilling witness. to take the witness stand and testify, and that he can
invoke his right against self-incrimination only when a
We cannot simply assume, however, that every congressional question which tends to elicit an answer that will
investigation is justified by a public need that over-balances any incriminate him is propounded to him. Clearly then, it is
not the characeter of the suit involved but the nature of
private rights affected. To do so would be to abdicate the the proceedings that controls. The privilege has
responsibility placed by the Constitution upon the judiciary to consistenly been held to extend to all proceedings
sanctioned by law and to all cases in which punishment is
insure that the Congress does not unjustifiably encroah upon an sought to be visited upon a witness, whether a party or
individual's right to privacy nor abridge his liberty of speech, not.

press, religion or assembly. 23 We do not here modify these doctrines. If we presently rule that
One of the basic rights guaranteed by the Constitution to an petitioners may not be compelled by the respondent Committee
to appear, testify and produce evidenc before it, it is only becuase
individual is the right against self-incrimination. 24 we hold that the questioned inquiry is not in aid of legislation and,
This right construed as the right to remain completely silent may if pursued, would be violative of the principle of separation of
be availed of by the accused in a criminal case; but kit may be powers between the legislative and the judicial departments of
invoked by other witnesses only as questions are asked of them. government, ordained by the Constitution.

This distinction was enunciated by the Court in Romeo Chavez WHEREFORE, the petition is GRANTED. The Court holds that,
vs. The Honorable Court of Appeals, et al. 25thus — under the facts, including the circumtance that petitioners are
presently impleaded as defendants in a case before the
Sandiganbayan, which involves issues intimately related to the
subject of contemplated inquiry before the respondet Committee, banking, trust, and other related operations in the Philippines. Petitioners
the respondent Senate Blue Ribbon Committee is hereby Paul Simon Morris, Sundara Ramesh, Owen Belman, Sanjay Aggarwal,
enjoined from compelling the petitioners and intervenor to testify Rajamani Chandrashekar, Marivel Gonzales, Ma. Ellen Victor, Chona G.
before it and produce evidence at the said inquiry. Reyes, Zenaida Iglesias, Ramona Bernad, Michaelangelo Aguilar, and
Fernand Tansingco are the Chief Executive Officer, Chief Operations
SO ORDERED. Officer, Country Head of Consumer Banking, General Manager for Credit
Card and Personal Loans, Chief Financial Officer, Legal and Compliance
Officer, former Trust and Investment Services Head, Country Tax Officer,
Head of Corporate Affairs, Head of Banking Services, Head of Client
Relationships, and the Head of Global Markets of SCB-Philippines,
respectively. Respondent, on the other hand, is one of the permanent
committees of the Senate of the Philippines.
Republic of the Philippines
SUPREME COURT
The petition seeks the issuance of a temporary restraining order (TRO) to
Manila
enjoin respondent from (1) proceeding with its inquiry pursuant to
Philippine Senate (P.S.) Resolution No. 166; (2) compelling petitioners
EN BANC who are officers of petitioner SCB-Philippines to attend and testify before
any further hearing to be conducted by respondent, particularly that set
G.R. No. 167173 December 27, 2007 on March 15, 2005; and (3) enforcing any hold-departure order (HDO)
and/or putting the petitioners on the Watch List. It also prays that
STANDARD CHARTERED BANK (Philippine Branch), PAUL SIMON judgment be rendered (1) annulling the subpoenae ad testificandum and
MORRIS, SUNDARA RAMESH, OWEN BELMAN, SANJAY duces tecum issued to petitioners, and (2) prohibiting the respondent
AGGARWAL, RAJAMANI CHANDRASHEKAR, MARIVEL GONZALES, from compelling petitioners to appear and testify in the inquiry being
MA. ELLEN VICTOR, CHONA G. REYES, ZENAIDA IGLESIAS, conducted pursuant to P.S. Resolution No. 166.
RAMONA BERNAD, MICHAELANGELO AGUILAR, and FERNAND
TANSINGCO, Petitioners, The facts are as follows:
vs.
SENATE COMMITTEE ON BANKS, FINANCIAL INSTITUTIONS AND On February 1, 2005, Senator Juan Ponce Enrile, Vice Chairperson of
CURRENCIES, as represented by its Chairperson, HON. EDGARDO respondent, delivered a privilege speech entitled "Arrogance of
J. ANGARA, Respondent. Wealth"1 before the Senate based on a letter from Atty. Mark R. Bocobo
denouncing SCB-Philippines for selling unregistered foreign securities in
DECISION violation of the Securities Regulation Code (R.A. No. 8799) and urging
the Senate to immediately conduct an inquiry, in aid of legislation, to
NACHURA, J.: prevent the occurrence of a similar fraudulent activity in the future. Upon
motion of Senator Francis Pangilinan, the speech was referred to
Before us is a Petition for Prohibition (With Prayer for Issuance of respondent. Prior to the privilege speech, Senator Enrile had introduced
Temporary Restraining Order and/or Injunction) dated and filed on March P.S. Resolution No. 166,2 to wit:
11, 2005 by petitioners against respondent Senate Committee on Banks,
Financial Institutions and Currencies, as represented by its Chairperson RESOLUTION
Edgardo J. Angara (respondent).
DIRECTING THE COMMITTEE ON BANKS, FINANCIAL
Petitioner Standard Chartered Bank (SCB)-Philippines is an institution INSTITUTIONS AND CURRENCIES, TO CONDUCT AN INQUIRY, IN
incorporated in England with limited liability and is licensed to engage in AID OF LEGISLATION, INTO THE ILLEGAL SALE OF
UNREGISTERED AND HIGH-RISK SECURITIES BY STANDARD WHEREAS, Republic Act No. 8791 or the "General Banking Act of 2000"
CHARTERED BANK, WHICH RESULTED IN BILLIONS OF PESOS OF deems a particular act or omission as conducting business in an unsafe
LOSSES TO THE INVESTING PUBLIC and unsound manner as follows:

WHEREAS, Republic Act No. 7721, otherwise known as the "Law "Section 56.2 The act or omission has resulted or may result in material
Liberalizing the Entry and Scope of Operations of Foreign Banks in the loss or damage or abnormal risk to the institution's depositors, creditors,
Philippines," was approved on May 18, 1994 to promote greater investors, stockholders or to the Bangko Sentral or to the public in
participation of foreign banks in the Philippine Banking Industry that will general."
stimulate economic growth and serve as a channel for the flow of funds
into the economy; WHEREAS, the sale of unregistered securities is also a clear violation of
Republic Act No. 8799 or "The Securities Regulation Code of 2000"
WHEREAS, to promote greater competition in the Philippine Banking which states:
Industry, foreign banks were accorded the same privileges, allowed to
perform the same functions and subjected to the same limitations under "Section 8.1 Securities shall not be sold or offered for sale or distribution
relevant banking laws imposed upon domestic banks; within the Philippines, without a registration statement duly filed with and
approved by the Commission. Prior to such sale, information on the
WHEREAS, Standard Chartered Bank was among the foreign banks securities, in such form and with such substance as the Commission may
granted the privilege to do business in our country under Republic Act prescribe, shall be made available to each prospective purchaser."
No. 7721;
WHEREAS, the Securities and Exchange Commission (SEC) reportedly
WHEREAS, there are complaints against Standard Chartered Bank issued a Cease-and-Desist Order (CDO) against Standard Chartered
whose actions have reportedly defrauded hundreds of Filipino investors Bank for the sale of these unregistered securities but the case was
of billions of pesos through the sale of unregistered securities in the form reportedly settled administratively and dismissed after Standard
of high-risk mutual funds falsely advertised and marketed as safe Chartered Bank paid a fine of ₱7 Million;
investment havens;
WHEREAS, the SEC reportedly made an official finding that Standard
WHEREAS, there are reports that Standard Chartered Bank clearly knew Chartered Bank actively engaged in promoting and marketing the so-
that its actions were violative of Philippine banking and securities laws called "Global Third Party Mutual Funds" to the investing public and even
but cleverly disguised its illegal acts through the use of pro-forma set revenue quotas for the sale of these funds;
agreements containing waivers of liability in favor of the bank;
WHEREAS, existing laws including the Securities Regulation Code seem
WHEREAS, there are reports that in the early stages of conducting these to be inadequate in preventing the sale of unregistered securities and in
questionable activities, the Bangko Sentral ng Pilipinas warned and effectively enforcing the registration rules intended to protect the
eventually fined Standard Chartered Bank a measly ₱30,000 for violating investing public from fraudulent practices;
Philippine banking laws;
WHEREAS, the regulatory intervention by the SEC and BSP likewise
WHEREAS, the particular operations of Standard Chartered Bank may appears inadequate in preventing the conduct of proscribed activities in a
constitute "conducting business in an unsafe and unsound manner," manner that would protect the investing public;
punishable under Section 37 of Republic Act No. 7653 and should have
drawn the higher penalty of revocation of its quasi-banking license; WHEREAS, there is a need for remedial legislation to address the
situation, having in mind the imposition of proportionate penalties to
offending entities and their directors, officers and representatives among
other additional regulatory measures;
Now, therefore, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, to The grounds relied upon by petitioners are as follows:
direct the Committee on Banks, Currencies, and Financial Institutions, to
conduct an inquiry, in aid of legislation, into the reported sale of I.
unregistered and high-risk securities by Standard Chartered Bank which
resulted in billions of losses to the investing public. THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
Acting on the referral, respondent, through its Chairperson, Senator JURISDICTION IN CONDUCTING AN INVESTIGATION,
Edgardo J. Angara, set the initial hearing on February 28, 2005 to PURPORTEDLY IN AID OF LEGISLATION, BUT IN REALITY PROBING
investigate, in aid of legislation, the subject matter of the speech and INTO THE ISSUE OF WHETHER THE STANDARD CHARTERED BANK
resolution filed by Senator Enrile. HAD SOLD UNREGISTERED FOREIGN SECURITIES IN THE
PHILIPPINES. SAID ISSUE HAS LONG BEEN THE SUBJECT OF
Respondent invited petitioners, among others, to attend the hearing, CRIMINAL AND CIVIL ACTIONS NOW PENDING BEFORE THE
requesting them to submit their written position paper. Petitioners, COURT OF APPEALS, REGIONAL TRIAL COURT OF PASIG CITY,
through counsel, submitted to respondent a letter3 dated February 24, METROPOLITAN TRIAL COURT OF MAKATI CITY AND THE
2005 presenting their position, particularly stressing that there were PROSECUTOR'S OFFICE OF MAKATI CITY.
cases pending in court allegedly involving the same issues subject of the
legislative inquiry, thereby posing a challenge to the jurisdiction of II.
respondent to continue with the inquiry.
THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION
On February 28, 2005, respondent commenced the investigation. AMOUNTING TO LACK OF JURISDICTION BY CONDUCTING AN
Senator Enrile inquired who among those invited as resource persons INVESTIGATION, PURPORTEDLY "IN AID OF LEGISLATION," BUT IN
were present and who were absent. Thereafter, Senator Enrile moved REALITY IN "AID OF COLLECTION" BY A HANDFUL OF TWO (2)
that subpoenae be issued to those who did not attend the hearing and CLIENTS OF STANDARD CHARTERED BANK OF LOSSES WHICH
that the Senate request the Department of Justice, through the Bureau of WERE FOR THEIR ACCOUNT AND RISK. AT ANY RATE, SUCH
Immigration and Deportation, to issue an HDO against them and/or COLLECTION IS WITHIN THE PROVINCE OF THE COURT RATHER
include them in the Bureau’s Watch List. Senator Juan Flavier seconded THAN OF THE LEGISLATURE.
the motion and the motion was approved.
III.
Respondent then proceeded with the investigation proper. Towards the
end of the hearing, petitioners, through counsel, made an Opening THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED
Statement4 that brought to the attention of respondent the lack of proper WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
authorization from affected clients for the bank to make disclosures of JURISDICTION IN COMPELLING PETITIONERS, SOME OF WHOM
their accounts and the lack of copies of the accusing documents ARE RESPONDENTS IN THE PENDING CRIMINAL AND CIVIL
mentioned in Senator Enrile's privilege speech, and reiterated that there ACTIONS BROUGHT BY SAID CLIENTS, IN VIOLATION OF
were pending court cases regarding the alleged sale in the Philippines by PETITIONERS’ RIGHT AGAINST SELF-INCRIMINATION AND RIGHT
SCB-Philippines of unregistered foreign securities. TO PURSUE AND DEFEND THEIR CAUSE IN COURT RATHER THAN
ENGAGE IN TRIAL BY PUBLICITY – A CLEAR VIOLATION OF DUE
The February 28, 2005 hearing was adjourned without the setting of the PROCESS, RIGHT TO PRIVACY AND TO TRAVEL.
next hearing date. However, petitioners were later served by respondent
with subpoenae ad testificandum and duces tecum to compel them to IV.
attend and testify at the hearing set on March 15, 2005. Hence, this
petition.
THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION against Mr. Baviera for demanding the payment of US$2 Million
AMOUNTING TO LACK OF JURISDICTION BY DISREGARDING ITS with the threat to EXPOSE THE BANK'S "LARGE SCALE
OWN RULES.5 SCAM" CONSISTING [OF] ILLEGAL SELLING OF
UNREGISTERED FOREIGN SECURITIES BY THE BANK,
Petitioners argue that respondent has no jurisdiction to conduct the before various government offices, such as the Department of
inquiry because its subject matter is the very same subject matter of the Justice, the BIR, Bangko Sentral ng Pilipinas, Regional Trial
following cases, to wit: Courts, and both houses of Congress.

(a) CA-G.R. SP No. 85078, entitled "Manuel V. Baviera vs. Hon. (f) Criminal Case No. 331395, entitled "People of the Philippines
Esperanza P. Rosario, et al., pending before the 9th Division of vs. Manuel V. Baviera," pending before Branch 64 of the
the Court of Appeals. In the petition, Mr. Baviera seeks to annul Metropolitan Trial Court of Makati City. Petitioners Victor and
and set aside the dismissal by the Department of Justice of his Chona Reyes are the private complainants in this information for
complaint against Standard Chartered Bank and its officers perjury committed by Mr. Baviera in securing a hold departure
accusing them of SELLING UNREGISTERED FOREIGN order against the petitioners herein from the Department of
SECURITIES IN VIOLATION OF P.D. NO. 1869 (SYNDICATED Justice for their alleged involvement in syndicated estafa and
ESTAFA) AND ARTICLE 315 OF THE REVISED PENAL CODE. swindling BY SELLING UNREGISTERED FOREIGN
SECURITIES.
(b) CA-G.R. SP No. 86200, entitled "Manuel V. Baviera vs. Hon.
Rafael Buenaventura, et al.", pending before the 15th Division of (g) I.S. No. 2004-B-2279-80, entitled "Aurelio Litonjua III and
the Court of Appeals. In the petition, Mr. Baviera seeks to annul Aurelio Litonjua, Jr. vs. Antonette de los Reyes, et al.," pending
and set aside the termination for lack of probable cause by the before the Office of the Prosecutor, Makati City. This is a criminal
Anti-Money Laundering Council ("AMLC") of the investigation of complaint accusing SCB and its officers of estafa for SELLING
Standard Chartered Bank for money laundering activities BY UNREGISTERED FOREIGN SECURITIES.6
SELLING UNREGISTERED FOREIGN SECURITIES.
Citing Bengzon, Jr. v. Senate Blue Ribbon Committee,7 the petitioners
(c) CA-G.R. SP No. 87328, entitled "Manuel V. Baviera vs. Hon. claim that since the issue of whether or not SCB-Philippines illegally sold
Esperanza Paglinawan Rozario, et al.,"pending before the 16th unregistered foreign securities is already preempted by the courts that
Division of the Court of Appeals. The petition seeks to annul and took cognizance of the foregoing cases, the respondent, by this
set aside the dismissal by the Department of Justice of Mr. investigation, would encroach upon the judicial powers vested solely in
Baviera's complaint accusing SCB and its officers of violation of these courts.
the Securities Regulation Code by SELLING UNREGISTERED
FOREIGN SECURITIES. The argument is misplaced. Bengzon does not apply squarely to
petitioners’ case.
(d) Civil Case No. 70173, entitled "Mr. Noel G. Sanchez, et al. vs.
Standard Chartered Bank," pending before Branch 155 of the It is true that in Bengzon, the Court declared that the issue to be
Regional Trial Court of Pasig City. Plaintiff seeks damages and investigated was one over which jurisdiction had already been acquired
recovery of their investment accusing the bank of SELLING by the Sandiganbayan, and to allow the [Senate Blue Ribbon] Committee
UNREGISTERED FOREIGN SECURITIES. to investigate the matter would create the possibility of conflicting
judgments; and that the inquiry into the same justiciable controversy
(e) Criminal Case No. 332034, entitled "People of the Philippines would be an encroachment on the exclusive domain of judicial jurisdiction
vs. Manuel V. Baviera," pending before Branch 64 of the that had set in much earlier.
Metropolitan Trial Court of Makati City. Petitioner Morris is the
private complainant in this information for extortion or blackmail
To the extent that, in the case at bench, there are a number of cases The unmistakable objective of the investigation, as set forth in the said
already pending in various courts and administrative bodies involving the resolution, exposes the error in petitioners’ allegation that the inquiry, as
petitioners, relative to the alleged sale of unregistered foreign securities, initiated in a privilege speech by the very same Senator Enrile, was
there is a resemblance between this case and Bengzon. However, the simply "to denounce the illegal practice committed by a foreign bank in
similarity ends there. selling unregistered foreign securities x x x." This fallacy is made more
glaring when we consider that, at the conclusion of his privilege speech,
Central to the Court’s ruling in Bengzon -- that the Senate Blue Ribbon Senator Enrile urged the Senate "to immediately conduct an inquiry, in
Committee was without any constitutional mooring to conduct the aid of legislation, so as to prevent the occurrence of a similar fraudulent
legislative investigation -- was the Court’s determination that the intended activity in the future."
inquiry was not in aid of legislation. The Court found that the speech of
Senator Enrile, which sought such investigation contained no suggestion Indeed, the mere filing of a criminal or an administrative complaint before
of any contemplated legislation; it merely called upon the Senate to look a court or a quasi-judicial body should not automatically bar the conduct
into possible violations of Section 5, Republic Act No. 3019. Thus, the of legislative investigation. Otherwise, it would be extremely easy to
Court held that the requested probe failed to comply with a fundamental subvert any intended inquiry by Congress through the convenient ploy of
requirement of Section 21, Article VI of the Constitution, which states: instituting a criminal or an administrative complaint. Surely, the exercise
of sovereign legislative authority, of which the power of legislative inquiry
The Senate or the House of Representatives or any of its respective is an essential component, cannot be made subordinate to a criminal or
committees may conduct inquiries in aid of legislation in accordance with an administrative investigation.
its duly published rules of procedure. The rights of persons appearing in
or affected by such inquiries shall be respected. As succinctly stated in the landmark case Arnault v. Nazareno8 –

Accordingly, we stopped the Senate Blue Ribbon Committee from [T]he power of inquiry – with process to enforce it – is an essential and
proceeding with the legislative investigation in that case. appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the
Unfortunately for the petitioners, this distinguishing factual milieu in conditions which the legislation is intended to affect or change; and
Bengzon does not obtain in the instant case. P.S. Resolution No. 166 is where the legislative body does not itself possess the requisite
explicit on the subject and nature of the inquiry to be (and already being) information – which is not infrequently true – recourse must be had to
conducted by the respondent Committee, as found in the last three others who possess it.
Whereas clauses thereof, viz.:
Neither can the petitioners claim that they were singled out by the
WHEREAS, existing laws including the Securities Regulation Code seem respondent Committee. The Court notes that among those invited as
to be inadequate in preventing the sale of unregistered securities and in resource persons were officials of the Securities and Exchange
effectively enforcing the registration rules intended to protect the Commission (SEC) and the Bangko Sentral ng Pilipinas (BSP). These
investing public from fraudulent practices; officials were subjected to the same critical scrutiny by the respondent
relative to their separate findings on the illegal sale of unregistered
WHEREAS, the regulatory intervention by the SEC and BSP likewise foreign securities by SCB-Philippines. It is obvious that the objective of
appears inadequate in preventing the conduct of proscribed activities in a the investigation was the quest for remedies, in terms of legislation, to
manner that would protect the investing public; prevent the recurrence of the allegedly fraudulent activity.

WHEREAS, there is a need for remedial legislation to address the Still, petitioners insist that the inquiry conducted by respondent was, in
situation, having in mind the imposition of proportionate penalties to fact, "in aid of collection." They claim that Atty. Bocobo and Manuel
offending entities and their directors, officers and representatives among Baviera, the latter a party to the pending court cases cited by petitioners,
other additional regulatory measures; (emphasis supplied) were only seeking a friendly forum so that they could recover their
investments from SCB-Philippines; and that the respondent has allowed intended each department’s authority to be full and complete,
itself to be used as the conveniently available vehicle to effect this independently of each other’s authority or power. And how could the
purpose. authority and power become complete if for every act of refusal, every act
of defiance, every act of contumacy against it, the legislative body must
However, as correctly pointed out by respondent in its Comment on the resort to the judicial department for the appropriate remedy, because it is
petition, Atty. Bocobo did not file a complaint before the Senate for the impotent by itself to punish or deal therewith, with affronts committed
purpose of recovering his investment. On the contrary, and as confirmed against its authority or dignity.11
during the initial hearing on February 28, 2005, his letter-complaint
humbly requested the Senate to conduct an inquiry into the purportedly The exercise by Congress or by any of its committees of the power to
illegal activities of SCB-Philippines, with the end view of preventing the punish contempt is based on the principle of self-preservation. As the
future occurrence of any similar fraudulent activity by the banks in branch of the government vested with the legislative power,
general.9 Baviera, on the other hand, was not a "complainant" but merely independently of the judicial branch, it can assert its authority and punish
a witness in the investigation, invited to testify on the alleged illegal sale contumacious acts against it. Such power is sui generis, as it attaches
of unregistered foreign securities by SCB-Philippines, being one of the not to the discharge of legislative functions per se, but to the sovereign
supposed victims thereof. character of the legislature as one of the three independent and
coordinate branches of government.12
The Court further notes that when it denied petitioners’ prayer for the
issuance of a TRO to restrain the hearing set on March 15, In this case, petitioners’ imputation that the investigation was "in aid of
2005,10 respondent proceeded with the investigation. On the said date, collection" is a direct challenge against the authority of the Senate
outraged by petitioners’ imputation that it was conducting the Committee, as it ascribes ill motive to the latter. In this light, we find the
investigation "in aid of collection," respondent held petitioners, together contempt citation against the petitioners reasonable and justified.
with their counsel, Atty. Reynaldo Geronimo, in contempt and ordered
their detention for six hours. Furthermore, it is axiomatic that the power of legislative investigation
includes the power to compel the attendance of witnesses. Corollary to
Petitioners filed a Motion for Partial Reconsideration of this Court’s the power to compel the attendance of witnesses is the power to ensure
Resolution dated March 14, 2005 only with respect to the denial of the that said witnesses would be available to testify in the legislative
prayer for the issuance of a TRO and/or writ of preliminary injunction, investigation. In the case at bench, considering that most of the officers of
alleging that their being held in contempt was without legal basis, as the SCB-Philippines are not Filipino nationals who may easily evade the
phrase "in aid of collection" partakes of an absolutely privileged allegation compulsive character of respondent’s summons by leaving the country, it
in the petition. was reasonable for the respondent to request the assistance of the
Bureau of Immigration and Deportation to prevent said witnesses from
We do not agree. The Court has already expounded on the essence of evading the inquiry and defeating its purpose. In any event, no HDO was
the contempt power of Congress and its committees in this wise – issued by a court. The BID instead included them only in the Watch List,
which had the effect of merely delaying petitioners’ intended travel
The principle that Congress or any of its bodies has the power to punish abroad for five (5) days, provided no HDO is issued against them. 13
recalcitrant witnesses is founded upon reason and policy. Said power
must be considered implied or incidental to the exercise of legislative With respect to the right of privacy which petitioners claim respondent
power. How could a legislative body obtain the knowledge and has violated, suffice it to state that privacy is not an absolute right. While
information on which to base intended legislation if it cannot require and it is true that Section 21, Article VI of the Constitution, guarantees respect
compel the disclosure of such knowledge and information, if it is impotent for the rights of persons affected by the legislative investigation, not every
to punish a defiance of its power and authority? When the framers of the invocation of the right to privacy should be allowed to thwart a legitimate
Constitution adopted the principle of separation of powers, making each congressional inquiry. In Sabio v. Gordon,14 we have held that the right of
branch supreme within the realm of its respective authority, it must have the people to access information on matters of public concern generally
prevails over the right to privacy of ordinary financial transactions. In that
case, we declared that the right to privacy is not absolute where there is the authority of that body, directly or through its Committees, to require
an overriding compelling state interest. Employing the rational basis pertinent disclosures in aid of its own constitutional power is not abridged
relationship test, as laid down in Morfe v. Mutuc, 15 there is no because the information sought to be elicited may also be of use in such
infringement of the individual’s right to privacy as the requirement to suits. x x x It is plain that investigation of the matters involved in suits
disclosure information is for a valid purpose, in this case, to ensure that brought or to be commenced under the Senate resolution directing the
the government agencies involved in regulating banking transactions institution of suits for the cancellation of the leases might directly aid in
adequately protect the public who invest in foreign securities. Suffice it to respect of legislative action.
state that this purpose constitutes a reason compelling enough to
proceed with the assailed legislative investigation. 16 The prosecution of offenders by the prosecutorial agencies and the trial
before the courts is for the punishment of persons who transgress the
As regards the issue of self-incrimination, the petitioners, officers of SCB- law. The intent of legislative inquiries, on the other hand, is to arrive at a
Philippines, are not being indicted as accused in a criminal proceeding. policy determination, which may or may not be enacted into law.
They were summoned by respondent merely as resource persons, or as
witnesses, in a legislative inquiry. As distinguished by this Court – Except only when it exercises the power to punish for contempt, the
respondent, as with the other Committees of the Senate or of the House
[An] accused occupies a different tier of protection from an ordinary of Representatives, cannot penalize violators even if there is
witness. Whereas an ordinary witness may be compelled to take the overwhelming evidence of criminal culpability. Other than proposing or
witness stand and claim the privilege as each question requiring an initiating amendatory or remedial legislation, respondent can only
incriminating answer is shot at him, an accused may altogether refuse to recommend measures to address or remedy whatever irregularities may
take the witness stand and refuse to answer any and all questions. 17 be unearthed during the investigation, although it may include in its
Report a recommendation for the criminal indictment of persons who may
Concededly, this right of the accused against self-incrimination is appear liable. At best, the recommendation, along with the evidence,
extended to respondents in administrative investigations that partake of contained in such a Report would be persuasive, but it is still up to the
the nature of or are analogous to criminal proceedings. The privilege has prosecutorial agencies and the courts to determine the liabilities of the
consistently been held to extend to all proceedings sanctioned by law; offender.
and to all cases in which punishment is sought to be visited upon a
witness, whether a party or not.18 Finally, petitioners sought anew, in their Manifestation and Motion21 dated
June 21, 2006, the issuance by this Court of a TRO and/or writ of
However, in this case, petitioners neither stand as accused in a criminal preliminary injunction to prevent respondent from submitting its
case nor will they be subjected by the respondent to any penalty by Committee Report No. 75 to the Senate in plenary for approval. However,
reason of their testimonies. Hence, they cannot altogether decline 16 days prior to the filing of the Manifestation and Motion, or on June 5,
appearing before respondent, although they may invoke the privilege 2006, respondent had already submitted the report to the Senate in
when a question calling for an incriminating answer is propounded. 19 plenary. While there is no showing that the said report has been
approved by the Senate, the subject of the Manifestation and Motion has
Petitioners’ argument, that the investigation before respondent may result inescapably become moot and academic.
in a recommendation for their prosecution by the appropriate government
agencies, such as the Department of Justice or the Office of the WHEREFORE, the Petition for Prohibition is DENIED for lack of merit.
Ombudsman, does not persuade. The Manifestation and Motion dated June 21, 2006 is, likewise, DENIED
for being moot and academic.
As held in Sinclair v. United States 20 --
SO ORDERED.
It may be conceded that Congress is without authority to compel
disclosures for the purpose of aiding the prosecution of pending suits; but
Republic of the Philippines x-------------------------x
SUPREME COURT G.R. No. 169667 April 20, 2006
Manila ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EN BANC HON. EDUARDO R. ERMITA, in his capacity as Executive
Secretary, Respondent.
x-------------------------x
G.R. No. 169777* April 20, 2006
G.R. No. 169834 April 20, 2006
PDP- LABAN, Petitioner,
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. vs.
DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
his capacity as Senate President Pro Tempore, FRANCIS N. x-------------------------x
PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. G.R. No. 171246 April 20, 2006
PIMENTEL, JR., in his capacity as Minority Leader, SENATORS JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL,
JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C.
JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the
LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, INTEGRATED BAR FOR THE PHILIPPINES, Petitioners,
RALPH G. RECTO, and MAR ROXAS, Petitioners, vs.
vs. HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and
alter-ego of President Gloria Macapagal-Arroyo, and anyone acting
DECISION
in his stead and in behalf of the President of the
Philippines, Respondents.
CARPIO MORALES, J.:
x-------------------------x
G.R. No. 169659 April 20, 2006 A transparent government is one of the hallmarks of a truly republican
BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. state. Even in the early history of republican thought, however, it has
SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL been recognized that the head of government may keep certain
MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL information confidential in pursuit of the public interest. Explaining the
VIRADOR, COURAGE represented by FERDINAND GAITE, and reason for vesting executive power in only one magistrate, a
COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL) distinguished delegate to the U.S. Constitutional Convention said:
represented by ATTY. REMEDIOS BALBIN, Petitioners, "Decision, activity, secrecy, and dispatch will generally characterize the
vs. proceedings of one man, in a much more eminent degree than the
EDUARDO ERMITA, in his capacity as Executive Secretary and alter- proceedings of any greater number; and in proportion as the number is
ego of President Gloria Macapagal-Arroyo, Respondent. increased, these qualities will be diminished." 1
x-------------------------x
G.R. No. 169660 April 20, 2006 History has been witness, however, to the fact that the power to withhold
FRANCISCO I. CHAVEZ, Petitioner, information lends itself to abuse, hence, the necessity to guard it
vs. zealously.
EDUARDO R. ERMITA, in his capacity as Executive Secretary,
AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense, and The present consolidated petitions for certiorari and prohibition proffer
GENEROSO S. SENGA, in his capacity as AFP Chief of that the President has abused such power by issuing Executive Order
Staff, Respondents.
No. 464 (E.O. 464) last September 28, 2005. They thus pray for its Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26,
declaration as null and void for being unconstitutional. 2005 entitled "The Philippines as the Wire-Tapping Capital of the World";
(3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1,
In resolving the controversy, this Court shall proceed with the recognition 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No. 285
that the issuance under review has come from a co-equal branch of filed by Senator Maria Ana Consuelo Madrigal – Resolution Directing the
government, which thus entitles it to a strong presumption of Committee on National Defense and Security to Conduct an Inquiry, in
constitutionality. Once the challenged order is found to be indeed Aid of Legislation, and in the National Interest, on the Role of the Military
violative of the Constitution, it is duty-bound to declare it so. For the in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295
Constitution, being the highest expression of the sovereign will of the filed by Senator Biazon – Resolution Directing the Committee on National
Filipino people, must prevail over any issuance of the government that Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the
contravenes its mandates. Wire-Tapping of the President of the Philippines.

In the exercise of its legislative power, the Senate of the Philippines, Also invited to the above-said hearing scheduled on September 28 2005
through its various Senate Committees, conducts inquiries or was the AFP Chief of Staff, General Generoso S. Senga who, by
investigations in aid of legislation which call for, inter alia, the attendance letter3 dated September 27, 2005, requested for its postponement "due to
of officials and employees of the executive department, bureaus, and a pressing operational situation that demands [his utmost personal
offices including those employed in Government Owned and Controlled attention" while "some of the invited AFP officers are currently attending
Corporations, the Armed Forces of the Philippines (AFP), and the to other urgent operational matters."
Philippine National Police (PNP).
On September 28, 2005, Senate President Franklin M. Drilon received
On September 21 to 23, 2005, the Committee of the Senate as a whole from Executive Secretary Eduardo R. Ermita a letter 4 dated September
issued invitations to various officials of the Executive Department for 27, 2005 "respectfully request[ing] for the postponement of the hearing
them to appear on September 29, 2005 as resource speakers in a public [regarding the NorthRail project] to which various officials of the
hearing on the railway project of the North Luzon Railways Corporation Executive Department have been invited" in order to "afford said officials
with the China National Machinery and Equipment Group (hereinafter ample time and opportunity to study and prepare for the various issues so
North Rail Project). The public hearing was sparked by a privilege speech that they may better enlighten the Senate Committee on its investigation."
of Senator Juan Ponce Enrile urging the Senate to investigate the alleged
overpricing and other unlawful provisions of the contract covering the Senate President Drilon, however, wrote5 Executive Secretary Ermita that
North Rail Project. 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
The Senate Committee on National Defense and Security likewise issued all resource persons were completed [the previous] week."
invitations2 dated September 22, 2005 to the following officials of the
AFP: the Commanding General of the Philippine Army, Lt. Gen. Senate President Drilon likewise received on September 28, 2005 a
Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral letter6 from the President of the North Luzon Railways Corporation Jose
Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear L. Cortes, Jr. requesting that the hearing on the NorthRail project be
Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. postponed or cancelled until a copy of the report of the UP Law Center on
Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine the contract agreements relative to the project had been secured.
Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant
Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, On September 28, 2005, the President issued E.O. 464, "Ensuring
for them to attend as resource persons in a public hearing scheduled on Observance of the Principle of Separation of Powers, Adherence to the
September 28, 2005 on the following: (1) Privilege Speech of Senator Rule on Executive Privilege and Respect for the Rights of Public Officials
Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Appearing in Legislative Inquiries in Aid of Legislation Under the
Provided Smoking Gun or has Opened a Can of Worms that Show Constitution, and For Other Purposes,"7 which, pursuant to Section 6
Massive Electoral Fraud in the Presidential Election of May 2005"; (2)
thereof, took effect immediately. The salient provisions of the Order are Discussion in close-door Cabinet meetings (Chavez v. Presidential
as follows: Commission on Good Government, G.R. No. 130716, 9 December 1998);

SECTION 1. Appearance by Heads of Departments Before Congress. – Matters affecting national security and public order (Chavez v. Public
In accordance with Article VI, Section 22 of the Constitution and to Estates Authority, G.R. No. 133250, 9 July 2002).
implement the Constitutional provisions on the separation of powers
between co-equal branches of the government, all heads of departments (b) Who are covered. – The following are covered by this executive order:
of the Executive Branch of the government shall secure the consent of
the President prior to appearing before either House of Congress. Senior officials of executive departments who in the judgment of the
department heads are covered by the executive privilege;
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 Generals and flag officers of the Armed Forces of the Philippines and
executive session. such other officers who in the judgment of the Chief of Staff are covered
by the executive privilege;
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
Philippine National Police (PNP) officers with rank of chief superintendent
(a) Nature and Scope. - The rule of confidentiality based on executive or higher and such other officers who in the judgment of the Chief of the
privilege is fundamental to the operation of government and rooted in the PNP are covered by the executive privilege;
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 Senior national security officials who in the judgment of the National
Conduct and Ethical Standards for Public Officials and Employees Security Adviser are covered by the executive privilege; and
provides that Public Officials and Employees shall not use or divulge
confidential or classified information officially known to them by reason of
Such other officers as may be determined by the President.
their office and not made available to the public to prejudice the public
interest.
SECTION 3. Appearance of Other Public Officials Before Congress. – All
public officials enumerated in Section 2 (b) hereof shall secure prior
Executive privilege covers all confidential or classified information
consent of the President prior to appearing before either House of
between the President and the public officers covered by this executive
Congress to ensure the observance of the principle of separation of
order, including:
powers, adherence to the rule on executive privilege and respect for the
rights of public officials appearing in inquiries in aid of legislation.
Conversations and correspondence between the President and the public (Emphasis and underscoring supplied)
official covered by this executive order (Almonte vs. Vasquez G.R. No.
95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No.
Also on September 28, 2005, Senate President Drilon received from
133250, 9 July 2002);
Executive Secretary Ermita a copy of E.O. 464, and another
letter8 informing him "that officials of the Executive Department invited to
Military, diplomatic and other national security matters which in the appear at the meeting [regarding the NorthRail project] will not be able to
interest of national security should not be divulged (Almonte vs. Vasquez, attend the same without the consent of the President, pursuant to [E.O.
G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on 464]" and that "said officials have not secured the required consent from
Good Government, G.R. No. 130716, 9 December 1998). the President." On even date which was also the scheduled date of the
hearing on the alleged wiretapping, Gen. Senga sent a letter 9 to Senator
Information between inter-government agencies prior to the conclusion of Biazon, Chairperson of the Committee on National Defense and Security,
treaties and executive agreements (Chavez v. Presidential Commission informing him "that per instruction of [President Arroyo], thru the
on Good Government, G.R. No. 130716, 9 December 1998); Secretary of National Defense, no officer of the [AFP] is authorized to
appear before any Senate or Congressional hearings without seeking a capacity as Executive Secretary and alter-ego of President Arroyo, be
written approval from the President" and "that no approval has been prohibited from imposing, and threatening to impose sanctions on officials
granted by the President to any AFP officer to appear before the public who appear before Congress due to congressional summons.
hearing of the Senate Committee on National Defense and Security Additionally, petitioners claim that E.O. 464 infringes on their rights and
scheduled [on] 28 September 2005." impedes them from fulfilling their respective obligations. Thus, Bayan
Muna alleges that E.O. 464 infringes on its right as a political party
Despite the communications received from Executive Secretary Ermita entitled to participate in governance; Satur Ocampo, et al. allege that
and Gen. Senga, the investigation scheduled by the Committee on E.O. 464 infringes on their rights and duties as members of Congress to
National Defense and Security pushed through, with only Col. Balutan conduct investigation in aid of legislation and conduct oversight functions
and Brig. Gen. Gudani among all the AFP officials invited attending. in the implementation of laws; Courage alleges that the tenure of its
members in public office is predicated on, and threatened by, their
For defying President Arroyo’s order barring military personnel from submission to the requirements of E.O. 464 should they be summoned by
testifying before legislative inquiries without her approval, Brig. Gen. Congress; and CODAL alleges that its members have a sworn duty to
Gudani and Col. Balutan were relieved from their military posts and were uphold the rule of law, and their rights to information and to transparent
made to face court martial proceedings. governance are threatened by the imposition of E.O. 464.

As to the NorthRail project hearing scheduled on September 29, 2005, In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his
Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in constitutional rights as a citizen, taxpayer and law practitioner, are
response to the invitations sent to the following government officials: affected by the enforcement of E.O. 464, prays in his petition that E.O.
Light Railway Transit Authority Administrator Melquiades Robles, Metro 464 be declared null and void for being unconstitutional.
Rail Transit Authority Administrator Roberto Lastimoso, Department of
Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG),
Legal Counsel Merceditas Gutierrez, Department of Transportation and alleging that as a coalition of 17 legal resource non-governmental
Communication (DOTC) Undersecretary Guiling Mamonding, DOTC organizations engaged in developmental lawyering and work with the
Secretary Leandro Mendoza, Philippine National Railways General poor and marginalized sectors in different parts of the country, and as an
Manager Jose Serase II, Monetary Board Member Juanita Amatong, organization of citizens of the Philippines and a part of the general public,
Bases Conversion Development Authority Chairperson Gen. Narciso it has legal standing to institute the petition to enforce its constitutional
Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent right to information on matters of public concern, a right which was
personal regrets likewise citing E.O. 464.11 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
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, Secretary Ermita be ordered to cease from implementing it.
169660, and 169667, for certiorari and prohibition, were filed before this
Court challenging the constitutionality of E.O. 464. 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
In G.R. No. 169659, petitioners party-list Bayan Muna, House of for it stands to suffer imminent and material injury, as it has already
Representatives Members Satur Ocampo, Crispin Beltran, Rafael sustained the same with its continued enforcement since it directly
Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an interferes with and impedes the valid exercise of the Senate’s powers
organization of government employees, and Counsels for the Defense of and functions and conceals information of great public interest and
Liberties (CODAL), a group of lawyers dedicated to the promotion of concern, filed its petition for certiorari and prohibition, docketed as G.R.
justice, democracy and peace, all claiming to have standing to file the suit No. 169777 and prays that E.O. 464 be declared unconstitutional.
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 On October 14, 2005, PDP-Laban, a registered political party with
unconstitutional; that respondent Executive Secretary Ermita, in his 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 All the petitions pray for the issuance of a Temporary Restraining Order
challenged E.O. 464 because it hampers its legislative agenda to be enjoining respondents from implementing, enforcing, and observing E.O.
implemented through its members in Congress, particularly in the 464.
conduct of inquiries in aid of legislation and transcendental issues need
to be resolved to avert a constitutional crisis between the executive and In the oral arguments on the petitions conducted on February 21, 2006,
legislative branches of the government. the following substantive issues were ventilated: (1) whether respondents
committed grave abuse of discretion in implementing E.O. 464 prior to its
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated publication in the Official Gazette or in a newspaper of general
his invitation to Gen. Senga for him and other military officers to attend circulation; and (2) whether E.O. 464 violates the following provisions of
the hearing on the alleged wiretapping scheduled on February 10, 2005. the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV.
Gen. Senga replied, however, by letter15 dated February 8, 2006, that Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec.
"[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for 16. The procedural issue of whether there is an actual case or
a clearance from the President to allow [them] to appear before the public controversy that calls for judicial review was not taken up; instead, the
hearing" and that "they will attend once [their] request is approved by the parties were instructed to discuss it in their respective memoranda.
President." As none of those invited appeared, the hearing on February
10, 2006 was cancelled.16 After the conclusion of the oral arguments, the parties were directed to
submit their respective memoranda, paying particular attention to the
In another investigation conducted jointly by the Senate Committee on following propositions: (1) that E.O. 464 is, on its face, unconstitutional;
Agriculture and Food and the Blue Ribbon Committee on the alleged and (2) assuming that it is not, it is unconstitutional as applied in four
mismanagement and use of the fertilizer fund under the Ginintuang instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail
Masaganang Ani program of the Department of Agriculture (DA), several investigation (c) the Wiretapping activity of the ISAFP; and (d) the
Cabinet officials were invited to the hearings scheduled on October 5 and investigation on the Venable contract.22
26, November 24 and December 12, 2005 but most of them failed to
attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their
Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director memoranda on March 7, 2006, while those in G.R. No. 16966725 and
Norlito R. Gicana,17 and those from the Department of Budget and G.R. No. 16983426 filed theirs the next day or on March 8, 2006.
Management18 having invoked E.O. 464. Petitioners in G.R. No. 171246 did not file any memorandum.

In the budget hearings set by the Senate on February 8 and 13, 2006, Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for
Press Secretary and Presidential Spokesperson Ignacio R. Bunye, 19 DOJ extension to file memorandum 27 was granted, subsequently filed a
Secretary Raul M. Gonzalez20 and Department of Interior and Local manifestation28 dated March 14, 2006 that it would no longer file its
Government Undersecretary Marius P. Corpus 21 communicated their memorandum in the interest of having the issues resolved soonest,
inability to attend due to lack of appropriate clearance from the President prompting this Court to issue a Resolution reprimanding them. 29
pursuant to E.O. 464. During the February 13, 2005 budget hearing,
however, Secretary Bunye was allowed to attend by Executive Secretary Petitioners submit that E.O. 464 violates the following constitutional
Ermita. provisions:

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent Art. VI, Sec. 2130
members of the Board of Governors of the Integrated Bar of the Art. VI, Sec. 2231
Philippines, as taxpayers, and the Integrated Bar of the Philippines as the Art. VI, Sec. 132
official organization of all Philippine lawyers, all invoking their Art. XI, Sec. 133
constitutional right to be informed on matters of public interest, filed their Art. III, Sec. 734
petition for certiorari and prohibition, docketed as G.R. No. 171246, and Art. III, Sec. 435
pray that E.O. 464 be declared null and void.
Art. XIII, Sec. 16 36 Respondents, through the Solicitor General, assert that the allegations in
Art. II, Sec. 2837 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
Respondents Executive Secretary Ermita et al., on the other hand, pray the investigations called by the different committees of the Senate, were
in their consolidated memorandum38 on March 13, 2006 for the dismissal brought to vindicate the constitutional duty of the Senate or its different
of the petitions for lack of merit. committees to conduct inquiry in aid of legislation or in the exercise of its
oversight functions. They maintain that Representatives Ocampo et al.
The Court synthesizes the issues to be resolved as follows: 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
1. Whether E.O. 464 contravenes the power of inquiry vested in
Representatives or any of its committees which was aborted due to the
Congress;
implementation of E.O. 464.
2. Whether E.O. 464 violates the right of the people to information
As for Bayan Muna’s alleged interest as a party-list representing the
on matters of public concern; and
marginalized and underrepresented, and that of the other petitioner
groups and individuals who profess to have standing as advocates and
3. Whether respondents have committed grave abuse of defenders of the Constitution, respondents contend that such interest
discretion when they implemented E.O. 464 prior to its publication falls short of that required to confer standing on them as parties "injured-
in a newspaper of general circulation. in-fact."40

Essential requisites for judicial review Respecting petitioner Chavez, respondents contend that Chavez may not
claim an interest as a taxpayer for the implementation of E.O. 464 does
Before proceeding to resolve the issue of the constitutionality of E.O. 464, not involve the exercise of taxing or spending power. 41
ascertainment of whether the requisites for a valid exercise of the Court’s
power of judicial review are present is in order. 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
Like almost all powers conferred by the Constitution, the power of judicial E.O. 464, the Senate and its individual members are not the proper
review is subject to limitations, to wit: (1) there must be an actual case or parties to assail the constitutionality of E.O. 464.
controversy calling for the exercise of judicial power; (2) the person
challenging the act must have standing to challenge the validity of the Invoking this Court’s ruling in National Economic Protectionism
subject act or issuance; otherwise stated, he must have a personal and Association v. Ongpin42 and Valmonte v. Philippine Charity Sweepstakes
substantial interest in the case such that he has sustained, or will sustain, Office,43 respondents assert that to be considered a proper party, one
direct injury as a result of its enforcement; (3) the question of must have a personal and substantial interest in the case, such that he
constitutionality must be raised at the earliest opportunity; and (4) the has sustained or will sustain direct injury due to the enforcement of E.O.
issue of constitutionality must be the very lis mota of the case. 39 464.44

Except with respect to the requisites of standing and existence of an That the Senate of the Philippines has a fundamental right essential not
actual case or controversy where the disagreement between the parties only for intelligent public decision-making in a democratic system, but
lies, discussion of the rest of the requisites shall be omitted. more especially for sound legislation45 is not disputed. E.O. 464, however,
allegedly stifles the ability of the members of Congress to access
Standing 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 assertion of a public right, the mere fact that he is a citizen satisfies the
inviolate the prerogative, powers and privileges vested by the requirement of personal interest.
Constitution in their office and are allowed to sue to question the validity
of any official action which they claim infringes their prerogatives as As for petitioner PDP-Laban, it asseverates that it is clothed with legal
legislators.47 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
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), to be accorded standing on the ground of transcendental importance,
Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin however, it must establish (1) the character of the funds (that it is public)
Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza or other assets involved in the case, (2) the presence of a clear case of
(Gabriela) are allowed to sue to question the constitutionality of E.O. 464, disregard of a constitutional or statutory prohibition by the public
the absence of any claim that an investigation called by the House of respondent agency or instrumentality of the government, and (3) the lack
Representatives or any of its committees was aborted due to the of any party with a more direct and specific interest in raising the
implementation of E.O. 464 notwithstanding, it being sufficient that a questions being raised.54 The first and last determinants not being
claim is made that E.O. 464 infringes on their constitutional rights and present as no public funds or assets are involved and petitioners in G.R.
duties as members of Congress to conduct investigation in aid of Nos. 169777 and 169659 have direct and specific interests in the
legislation and conduct oversight functions in the implementation of laws. resolution of the controversy, petitioner PDP-Laban is bereft of standing
to file its petition. Its allegation that E.O. 464 hampers its legislative
The national political party, Bayan Muna, likewise meets the standing agenda is vague and uncertain, and at best is only a "generalized
requirement as it obtained three seats in the House of Representatives in interest" which it shares with the rest of the political parties. Concrete
the 2004 elections and is, therefore, entitled to participate in the injury, whether actual or threatened, is that indispensable element of a
legislative process consonant with the declared policy underlying the dispute which serves in part to cast it in a form traditionally capable of
party list system of affording citizens belonging to marginalized and judicial resolution.55 In fine, PDP-Laban’s alleged interest as a political
underrepresented sectors, organizations and parties who lack well- party does not suffice to clothe it with legal standing.
defined political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation. 48 Actual Case or Controversy

As Bayan Muna and Representatives Ocampo et al. have the standing to Petitioners assert that an actual case exists, they citing the absence of
file their petitions, passing on the standing of their co-petitioners Courage the executive officials invited by the Senate to its hearings after the
and Codal is rendered unnecessary.49 issuance of E.O. 464, particularly those on the NorthRail project and the
wiretapping controversy.
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 Respondents counter that there is no case or controversy, there being no
Governors and the IBP in behalf of its lawyer members,50 invoke their showing that President Arroyo has actually withheld her consent or
constitutional right to information on matters of public concern, asserting prohibited the appearance of the invited officials. 56 These officials, they
that the right to information, curtailed and violated by E.O. 464, is claim, merely communicated to the Senate that they have not yet secured
essential to the effective exercise of other constitutional rights 51 and to the the consent of the President, not that the President prohibited their
maintenance of the balance of power among the three branches of the attendance.57 Specifically with regard to the AFP officers who did not
government through the principle of checks and balances. 52 attend the hearing on September 28, 2005, respondents claim that the
instruction not to attend without the President’s consent was based on its
It is well-settled that when suing as a citizen, the interest of the petitioner role as Commander-in-Chief of the Armed Forces, not on E.O. 464.
in assailing the constitutionality of laws, presidential decrees, orders, and
other regulations, must be direct and personal. In Franciso v. House of Respondents thus conclude that the petitions merely rest on an
Representatives,53 this Court held that when the proceeding involves the unfounded apprehension that the President will abuse its power of
preventing the appearance of officials before Congress, and that such The 1935 Constitution did not contain a similar provision. Nonetheless, in
apprehension is not sufficient for challenging the validity of E.O. 464. 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
The Court finds respondents’ assertion that the President has not power to legislate.
withheld her consent or prohibited the appearance of the officials
concerned immaterial in determining the existence of an actual case or Arnault involved a Senate investigation of the reportedly anomalous
controversy insofar as E.O. 464 is concerned. For E.O. 464 does not purchase of the Buenavista and Tambobong Estates by the Rural
require either a deliberate withholding of consent or an express Progress Administration. Arnault, who was considered a leading witness
prohibition issuing from the President in order to bar officials from in the controversy, was called to testify thereon by the Senate. On
appearing before Congress. account of his refusal to answer the questions of the senators on an
important point, he was, by resolution of the Senate, detained for
As the implementation of the challenged order has already resulted in the contempt. Upholding the Senate’s power to punish Arnault for contempt,
absence of officials invited to the hearings of petitioner Senate of the this Court held:
Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be Although there is no provision in the Constitution expressly investing
sheer abandonment of duty if this Court would now refrain from passing either House of Congress with power to make investigations and exact
on the constitutionality of E.O. 464. testimony to the end that it may exercise its legislative functions advisedly
and effectively, such power is so far incidental to the legislative function
Constitutionality of E.O. 464 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
E.O. 464, to the extent that it bars the appearance of executive officials function. A legislative body cannot legislate wisely or effectively in the
before Congress, deprives Congress of the information in the possession absence of information respecting the conditions which the legislation is
of these officials. To resolve the question of whether such withholding of intended to affect or change; and where the legislative body does not
information violates the Constitution, consideration of the general power itself possess the requisite information – which is not infrequently true –
of Congress to obtain information, otherwise known as the power of recourse must be had to others who do possess it. Experience has
inquiry, is in order. 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
The power of inquiry
needed.59 . . . (Emphasis and underscoring supplied)
The Congress power of inquiry is expressly recognized in Section 21 of
That this power of inquiry is broad enough to cover officials of the
Article VI of the Constitution which reads:
executive branch may be deduced from the same case. The power of
inquiry, the Court therein ruled, is co-extensive with the power to
SECTION 21. The Senate or the House of Representatives or any of its legislate.60 The matters which may be a proper subject of legislation and
respective committees may conduct inquiries in aid of legislation in those which may be a proper subject of investigation are one. It follows
accordance with its duly published rules of procedure. The rights of that the operation of government, being a legitimate subject for
persons appearing in or affected by such inquiries shall be respected. legislation, is a proper subject for investigation.
(Underscoring supplied)
Thus, the Court found that the Senate investigation of the government
This provision is worded exactly as Section 8 of Article VIII of the 1973 transaction involved in Arnault was a proper exercise of the power of
Constitution except that, in the latter, it vests the power of inquiry in the inquiry. Besides being related to the expenditure of public funds of which
unicameral legislature established therein – the Batasang Pambansa – Congress is the guardian, the transaction, the Court held, "also involved
and its committees. 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 the legislative power of inquiry might be established, resulting in palpable
executive branch, it would be incongruous to hold that the power of violations of the rights guaranteed to members of the executive
inquiry does not extend to executive officials who are the most familiar department under the Bill of Rights. In such instances, depending on the
with and informed on executive operations. particulars of each case, attempts by the Executive Branch to forestall
these abuses may be accorded judicial sanction.
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 Even where the inquiry is in aid of legislation, there are still recognized
the information possessed by executive officials on the operation of their exemptions to the power of inquiry, which exemptions fall under the rubric
offices is necessary for wise legislation on that subject, by parity of of "executive privilege." Since this term figures prominently in the
reasoning, Congress has the right to that information and the power to challenged order, it being mentioned in its provisions, its preambular
compel the disclosure thereof. clauses,62 and in its very title, a discussion of executive privilege is crucial
for determining the constitutionality of E.O. 464.
As evidenced by the American experience during the so-called "McCarthy
era," however, the right of Congress to conduct inquiries in aid of Executive privilege
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 The phrase "executive privilege" is not new in this jurisdiction. It has been
Court’s certiorari powers under Section 1, Article VIII of the Constitution. 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
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 61 the and used in the legal literature of the United States.
inquiry itself might not properly be in aid of legislation, and thus beyond
the constitutional power of Congress. Such inquiry could not usurp Schwartz defines executive privilege as "the power of the Government to
judicial functions. Parenthetically, one possible way for Congress to avoid withhold information from the public, the courts, and the
such a result as occurred in Bengzon is to indicate in its invitations to the Congress."64 Similarly, Rozell defines it as "the right of the President and
public officials concerned, or to any person for that matter, the possible high-level executive branch officers to withhold information from
needed statute which prompted the need for the inquiry. Given such Congress, the courts, and ultimately the public." 65
statement in its invitations, along with the usual indication of the subject
of inquiry and the questions relative to and in furtherance thereof, there Executive privilege is, nonetheless, not a clear or unitary concept. 66 It
would be less room for speculation on the part of the person invited on has encompassed claims of varying kinds. 67Tribe, in fact, comments that
whether the inquiry is in aid of legislation. while it is customary to employ the phrase "executive privilege," it may be
more accurate to speak of executive privileges "since presidential
Section 21, Article VI likewise establishes crucial safeguards that refusals to furnish information may be actuated by any of at least three
proscribe the legislative power of inquiry. The provision requires that the distinct kinds of considerations, and may be asserted, with differing
inquiry be done in accordance with the Senate or House’s duly published degrees of success, in the context of either judicial or legislative
rules of procedure, necessarily implying the constitutional infirmity of an investigations."
inquiry conducted without duly published rules of procedure. Section 21
also mandates that the rights of persons appearing in or affected by such One variety of the privilege, Tribe explains, is the state secrets privilege
inquiries be respected, an imposition that obligates Congress to adhere invoked by U.S. Presidents, beginning with Washington, on the ground
to the guarantees in the Bill of Rights. that the information is of such nature that its disclosure would subvert
crucial military or diplomatic objectives. Another variety is the informer’s
These abuses are, of course, remediable before the courts, upon the privilege, or the privilege of the Government not to disclose the identity of
proper suit filed by the persons affected, even if they belong to the persons who furnish information of violations of law to officers charged
executive branch. Nonetheless, there may be exceptional circumstances, with the enforcement of that law. Finally, a generic privilege for internal
none appearing to obtain at present, wherein a clear pattern of abuse of deliberations has been said to attach to intragovernmental documents
reflecting advisory opinions, recommendations and deliberations conversations and correspondence. The U.S. Court held that while there
comprising part of a process by which governmental decisions and is no explicit reference to a privilege of confidentiality in the U.S.
policies are formulated. 68 Constitution, it is constitutionally based to the extent that it relates to the
effective discharge of a President’s powers. The Court, nonetheless,
Tribe’s comment is supported by the ruling in In re Sealed Case, thus: rejected the President’s claim of privilege, ruling that the privilege must
be balanced against the public interest in the fair administration of
Since the beginnings of our nation, executive officials have claimed a criminal justice. Notably, the Court was careful to clarify that it was not
variety of privileges to resist disclosure of information the confidentiality of there addressing the issue of claims of privilege in a civil litigation or
which they felt was crucial to fulfillment of the unique role and against congressional demands for information.
responsibilities of the executive branch of our government. Courts ruled
early that the executive had a right to withhold documents that might Cases in the U.S. which involve claims of executive privilege against
reveal military or state secrets. The courts have also granted the Congress are rare.73 Despite frequent assertion of the privilege to deny
executive a right to withhold the identity of government informers in some information to Congress, beginning with President Washington’s refusal
circumstances and a qualified right to withhold information related to to turn over treaty negotiation records to the House of Representatives,
pending investigations. x x x"69 (Emphasis and underscoring supplied) 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
The entry in Black’s Law Dictionary on "executive privilege" is similarly decided earlier in the same year as Nixon, recognized the President’s
instructive regarding the scope of the doctrine. 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
This privilege, based on the constitutional doctrine of separation of
protected by the claim of privilege against the interest that would be
powers, exempts the executive from disclosure requirements applicable
served by disclosure to the Committee. Ruling that the balance favored
to the ordinary citizen or organization where such exemption is necessary
the President, the Court declined to enforce the subpoena. 76
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 In this jurisdiction, the doctrine of executive privilege was recognized by
exercise of the executive’ domestic decisional and policy making this Court in Almonte v. Vasquez.77Almonte used the term in reference to
functions, that is, those documents reflecting the frank expression the same privilege subject of Nixon. It quoted the following portion of the
necessary in intra-governmental advisory and deliberative Nixon decision which explains the basis for the privilege:
communications.70 (Emphasis and underscoring supplied)
"The expectation of a President to the confidentiality of his conversations
That a type of information is recognized as privileged does not, however, and correspondences, like the claim of confidentiality of judicial
necessarily mean that it would be considered privileged in all instances. deliberations, for example, has all the values to which we accord
For in determining the validity of a claim of privilege, the question that deference for the privacy of all citizens and, added to those values, is the
must be asked is not only whether the requested information falls within necessity for protection of the public interest in candid, objective, and
one of the traditional privileges, but also whether that privilege should be even blunt or harsh opinions in Presidential decision-making. A President
honored in a given procedural setting. 71 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
The leading case on executive privilege in the United States is U.S. v.
considerations justifying a presumptive privilege for Presidential
Nixon, 72 decided in 1974. In issue in that case was the validity of
communications. The privilege is fundamental to the operation of
President Nixon’s claim of executive privilege against a subpoena issued
government and inextricably rooted in the separation of powers under the
by a district court requiring the production of certain tapes and documents
Constitution x x x " (Emphasis and underscoring supplied)
relating to the Watergate investigations. The claim of privilege was based
on the President’s general interest in the confidentiality of his
Almonte involved a subpoena duces tecum issued by the Ombudsman however, which constrain this Court to discuss the validity of these
against the therein petitioners. It did not involve, as expressly stated in provisions separately.
the decision, the right of the people to information. 78 Nonetheless, the
Court recognized that there are certain types of information which the Section 1 specifically applies to department heads. It does not, unlike
government may withhold from the public, thus acknowledging, in Section 3, require a prior determination by any official whether they are
substance if not in name, that executive privilege may be claimed against covered by E.O. 464. The President herself has, through the challenged
citizens’ demands for information. order, made the determination that they are. Further, unlike also Section
3, the coverage of department heads under Section 1 is not made to
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the depend on the department heads’ possession of any information which
common law holding that there is a "governmental privilege against public might be covered by executive privilege. In fact, in marked contrast to
disclosure with respect to state secrets regarding military, diplomatic and Section 3 vis-à-vis Section 2, there is no reference to executive privilege
other national security matters."80 The same case held that closed-door at all. Rather, the required prior consent under Section 1 is grounded on
Cabinet meetings are also a recognized limitation on the right to Article VI, Section 22 of the Constitution on what has been referred to as
information. the question hour.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the SECTION 22. The heads of departments may upon their own initiative,
right to information does not extend to matters recognized as "privileged with the consent of the President, or upon the request of either House, as
information under the separation of powers,"82 by which the Court meant the rules of each House shall provide, appear before and be heard by
Presidential conversations, correspondences, and discussions in closed- such House on any matter pertaining to their departments. Written
door Cabinet meetings. It also held that information on military and questions shall be submitted to the President of the Senate or the
diplomatic secrets and those affecting national security, and information Speaker of the House of Representatives at least three days before their
on investigations of crimes by law enforcement agencies before the scheduled appearance. Interpellations shall not be limited to written
prosecution of the accused were exempted from the right to information. 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
From the above discussion on the meaning and scope of executive writing, the appearance shall be conducted in executive session.
privilege, both in the United States and in this jurisdiction, a clear
principle emerges. Executive privilege, whether asserted against Determining the validity of Section 1 thus requires an examination of the
Congress, the courts, or the public, is recognized only in relation to meaning of Section 22 of Article VI. Section 22 which provides for the
certain types of information of a sensitive character. While executive question hour must be interpreted vis-à-vis Section 21 which provides for
privilege is a constitutional concept, a claim thereof may be valid or not the power of either House of Congress to "conduct inquiries in aid of
depending on the ground invoked to justify it and the context in which it is legislation." As the following excerpt of the deliberations of the
made. Noticeably absent is any recognition that executive officials are Constitutional Commission shows, the framers were aware that these two
exempt from the duty to disclose information by the mere fact of being provisions involved distinct functions of Congress.
executive officials. Indeed, the extraordinary character of the exemptions
indicates that the presumption inclines heavily against executive secrecy MR. MAAMBONG. x x x When we amended Section 20 [now Section 22
and in favor of disclosure. on the Question Hour] yesterday, I noticed that members of the Cabinet
cannot be compelled anymore to appear before the House of
Validity of Section 1 Representatives or before the Senate. I have a particular problem in this
regard, Madam President, because in our experience in the Regular
Section 1 is similar to Section 3 in that both require the officials covered Batasang Pambansa – as the Gentleman himself has experienced in the
by them to secure the consent of the President prior to appearing before interim Batasang Pambansa – one of the most competent inputs that we
Congress. There are significant differences between the two provisions, 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 THE PRESIDING OFFICER. What does the committee say?
investigation, we usually issue subpoenas.
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding
I want to be clarified on a statement made by Commissioner Suarez Officer.
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 MR. MAAMBONG. Actually, we considered that previously when we
Section 22] does not mean that they need not come when they are sequenced this but we reasoned that in Section 21, which is Legislative
invited or subpoenaed by the committee of either House when it comes to Inquiry, it is actually a power of Congress in terms of its own lawmaking;
inquiries in aid of legislation or congressional investigation. According to whereas, a Question Hour is not actually a power in terms of its own
Commissioner Suarez, that is allowed and their presence can be had lawmaking power because in Legislative Inquiry, it is in aid of legislation.
under Section 21. Does the gentleman confirm this, Madam President? And so we put Question Hour as Section 31. I hope Commissioner
Davide will consider this.
MR. DAVIDE. We confirm that, Madam President, because Section 20
refers only to what was originally the Question Hour, whereas, Section 21 MR. DAVIDE. The Question Hour is closely related with the legislative
would refer specifically to inquiries in aid of legislation, under which power, and it is precisely as a complement to or a supplement of the
anybody for that matter, may be summoned and if he refuses, he can be Legislative Inquiry. The appearance of the members of Cabinet would be
held in contempt of the House.83 (Emphasis and underscoring supplied) very, very essential not only in the application of check and balance but
also, in effect, in aid of legislation.
A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the MR. MAAMBONG. After conferring with the committee, we find merit in
question hour, it was compulsory in inquiries in aid of legislation. The the suggestion of Commissioner Davide. In other words, we are
reference to Commissioner Suarez bears noting, he being one of the accepting that and so this Section 31 would now become Section 22.
proponents of the amendment to make the appearance of department Would it be, Commissioner Davide?
heads discretionary in the question hour.
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
So clearly was this distinction conveyed to the members of the
Commission that the Committee on Style, precisely in recognition of this Consistent with their statements earlier in the deliberations,
distinction, later moved the provision on question hour from its original Commissioners Davide and Maambong proceeded from the same
position as Section 20 in the original draft down to Section 31, far from assumption that these provisions pertained to two different functions of
the provision on inquiries in aid of legislation. This gave rise to the the legislature. Both Commissioners understood that the power to
following exchange during the deliberations: conduct inquiries in aid of legislation is different from the power to
conduct inquiries during the question hour. Commissioner Davide’s only
MR. GUINGONA. [speaking in his capacity as Chairman of the concern was that the two provisions on these distinct powers be placed
Committee on Style] We now go, Mr. Presiding Officer, to the Article on closely together, they being complementary to each other. Neither
Legislative and may I request the chairperson of the Legislative Commissioner considered them as identical functions of Congress.
Department, Commissioner Davide, to give his reaction.
The foregoing opinion was not the two Commissioners’ alone. From the
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is above-quoted exchange, Commissioner Maambong’s committee – the
recognized. |avvphi|.net
Committee on Style – shared the view that the two provisions reflected
distinct functions of Congress. Commissioner Davide, on the other hand,
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction was speaking in his capacity as Chairman of the Committee on the
to the Question Hour. I propose that instead of putting it as Section 31, it Legislative Department. His views may thus be presumed as
should follow Legislative Inquiries. representing that of his Committee.
In the context of a parliamentary system of government, the "question under a parliamentary system, and the nonexistence in the Congress of
hour" has a definite meaning. It is a period of confrontation initiated by an institution such as the British question period have perforce made
Parliament to hold the Prime Minister and the other ministers accountable reliance by the Congress upon its right to obtain information from the
for their acts and the operation of the government, 85 corresponding to executive essential, if it is intelligently to perform its legislative tasks.
what is known in Britain as the question period. There was a specific Unless the Congress possesses the right to obtain executive information,
provision for a question hour in the 1973 Constitution86 which made the its power of oversight of administration in a system such as ours
appearance of ministers mandatory. The same perfectly conformed to the becomes a power devoid of most of its practical content, since it depends
parliamentary system established by that Constitution, where the for its effectiveness solely upon information parceled out ex gratia by the
ministers are also members of the legislature and are directly executive.89 (Emphasis and underscoring supplied)
accountable to it.
Sections 21 and 22, therefore, while closely related and complementary
An essential feature of the parliamentary system of government is the to each other, should not be considered as pertaining to the same power
immediate accountability of the Prime Minister and the Cabinet to the of Congress. One specifically relates to the power to conduct inquiries in
National Assembly. They shall be responsible to the National Assembly aid of legislation, the aim of which is to elicit information that may be used
for the program of government and shall determine the guidelines of for legislation, while the other pertains to the power to conduct a question
national policy. Unlike in the presidential system where the tenure of hour, the objective of which is to obtain information in pursuit of
office of all elected officials cannot be terminated before their term Congress’ oversight function.
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 When Congress merely seeks to be informed on how department heads
confidence is lost the Prime Minister and the Cabinet may be changed. 87 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
The framers of the 1987 Constitution removed the mandatory nature of Chief Executive, such department heads must give a report of their
such appearance during the question hour in the present Constitution so performance as a matter of duty. In such instances, Section 22, in
as to conform more fully to a system of separation of powers. 88 To that keeping with the separation of powers, states that Congress may only
extent, the question hour, as it is presently understood in this jurisdiction, request their appearance. Nonetheless, when the inquiry in which
departs from the question period of the parliamentary system. That Congress requires their appearance is "in aid of legislation" under
department heads may not be required to appear in a question hour does Section 21, the appearance is mandatory for the same reasons stated in
not, however, mean that the legislature is rendered powerless to elicit Arnault.90
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 In fine, the oversight function of Congress may be facilitated by
executive information in the performance of its legislative function compulsory process only to the extent that it is performed in pursuit of
becomes more imperative. As Schwartz observes: legislation. This is consistent with the intent discerned from the
deliberations of the Constitutional Commission.
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 Ultimately, the power of Congress to compel the appearance of executive
information from any source – even from officials of departments and officials under Section 21 and the lack of it under Section 22 find their
agencies in the executive branch. In the United States there is, unlike the basis in the principle of separation of powers. While the executive branch
situation which prevails in a parliamentary system such as that in Britain, is a co-equal branch of the legislature, it cannot frustrate the power of
a clear separation between the legislative and executive branches. It is Congress to legislate by refusing to comply with its demands for
this very separation that makes the congressional right to obtain information.
information from the executive so essential, if the functions of the
Congress as the elected representatives of the people are adequately to When Congress exercises its power of inquiry, the only way for
be carried out. The absence of close rapport between the legislative and department heads to exempt themselves therefrom is by a valid claim of
executive branches in this country, comparable to those which exist
privilege. They are not exempt by the mere fact that they are department before either house of Congress. The enumeration is broad. It covers all
heads. Only one executive official may be exempted from this power — senior officials of executive departments, all officers of the AFP and the
the President on whom executive power is vested, hence, beyond the PNP, and all senior national security officials who, in the judgment of the
reach of Congress except through the power of impeachment. It is based heads of offices designated in the same section (i.e. department heads,
on her being the highest official of the executive branch, and the due Chief of Staff of the AFP, Chief of the PNP, and the National Security
respect accorded to a co-equal branch of government which is Adviser), are "covered by the executive privilege."
sanctioned by a long-standing custom.
The enumeration also includes such other officers as may be determined
By the same token, members of the Supreme Court are also exempt from by the President. Given the title of Section 2 — "Nature, Scope and
this power of inquiry. Unlike the Presidency, judicial power is vested in a Coverage of Executive Privilege" —, it is evident that under the rule of
collegial body; hence, each member thereof is exempt on the basis not ejusdem generis, the determination by the President under this provision
only of separation of powers but also on the fiscal autonomy and the is intended to be based on a similar finding of coverage under executive
constitutional independence of the judiciary. This point is not in dispute, privilege.
as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the
oral argument upon interpellation of the Chief Justice. 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
Having established the proper interpretation of Section 22, Article VI of doctrine. Executive privilege, as discussed above, is properly invoked in
the Constitution, the Court now proceeds to pass on the constitutionality relation to specific categories of information and not to categories of
of Section 1 of E.O. 464. persons.

Section 1, in view of its specific reference to Section 22 of Article VI of the In light, however, of Sec 2(a) of E.O. 464 which deals with the nature,
Constitution and the absence of any reference to inquiries in aid of scope and coverage of executive privilege, the reference to persons
legislation, must be construed as limited in its application to appearances being "covered by the executive privilege" may be read as an abbreviated
of department heads in the question hour contemplated in the provision way of saying that the person is in possession of information which is, in
of said Section 22 of Article VI. The reading is dictated by the basic rule the judgment of the head of office concerned, privileged as defined in
of construction that issuances must be interpreted, as much as possible, Section 2(a). The Court shall thus proceed on the assumption that this is
in a way that will render it constitutional. the intention of the challenged order.

The requirement then to secure presidential consent under Section 1, Upon a determination by the designated head of office or by the
limited as it is only to appearances in the question hour, is valid on its President that an official is "covered by the executive privilege," such
face. For under Section 22, Article VI of the Constitution, the appearance official is subjected to the requirement that he first secure the consent of
of department heads in the question hour is discretionary on their part. the President prior to appearing before Congress. This requirement
effectively bars the appearance of the official concerned unless the same
Section 1 cannot, however, be applied to appearances of department is permitted by the President. The proviso allowing the President to give
heads in inquiries in aid of legislation. Congress is not bound in such its consent means nothing more than that the President may reverse a
instances to respect the refusal of the department head to appear in such prohibition which already exists by virtue of E.O. 464.
inquiry, unless a valid claim of privilege is subsequently made, either by
the President herself or by the Executive Secretary. 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
Validity of Sections 2 and 3 President herself, that such official is in possession of information that is
covered by executive privilege. This determination then becomes the
Section 3 of E.O. 464 requires all the public officials enumerated in basis for the official’s not showing up in the legislative investigation.
Section 2(b) to secure the consent of the President prior to appearing
In view thereof, whenever an official invokes E.O. 464 to justify his failure Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that
to be present, such invocation must be construed as a declaration to the executive branch, either through the President or the heads of offices
Congress that the President, or a head of office authorized by the authorized under E.O. 464, has made a determination that the
President, has determined that the requested information is privileged, information required by the Senate is privileged, and that, at the time of
and that the President has not reversed such determination. Such writing, there has been no contrary pronouncement from the President. In
declaration, however, even without mentioning the term "executive fine, an implied claim of privilege has been made by the executive.
privilege," amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President, on the While there is no Philippine case that directly addresses the issue of
basis of executive privilege. Verily, there is an implied claim of privilege. whether executive privilege may be invoked against Congress, it is
gathered from Chavez v. PEA that certain information in the possession
The letter dated September 28, 2005 of respondent Executive Secretary of the executive may validly be claimed as privileged even against
Ermita to Senate President Drilon illustrates the implied nature of the Congress. Thus, the case holds:
claim of privilege authorized by E.O. 464. It reads:
There is no claim by PEA that the information demanded by petitioner is
In connection with the inquiry to be conducted by the Committee of the privileged information rooted in the separation of powers. The information
Whole regarding the Northrail Project of the North Luzon Railways does not cover Presidential conversations, correspondences, or
Corporation on 29 September 2005 at 10:00 a.m., please be informed discussions during closed-door Cabinet meetings which, like internal-
that officials of the Executive Department invited to appear at the meeting deliberations of the Supreme Court and other collegiate courts, or
will not be able to attend the same without the consent of the President, executive sessions of either house of Congress, are recognized as
pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring confidential. This kind of information cannot be pried open by a co-equal
Observance Of The Principle Of Separation Of Powers, Adherence To branch of government. A frank exchange of exploratory ideas and
The Rule On Executive Privilege And Respect For The Rights Of Public assessments, free from the glare of publicity and pressure by interested
Officials Appearing In Legislative Inquiries In Aid Of Legislation Under parties, is essential to protect the independence of decision-making of
The Constitution, And For Other Purposes". Said officials have not those tasked to exercise Presidential, Legislative and Judicial power. This
secured the required consent from the President. (Underscoring supplied) is not the situation in the instant case.91 (Emphasis and 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 Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid
under the recognized grounds of the privilege to justify their absence. Nor by the mere fact that it sanctions claims of executive privilege. This Court
does it expressly state that in view of the lack of consent from the must look further and assess the claim of privilege authorized by the
President under E.O. 464, they cannot attend the hearing. Order to determine whether it is valid.

Significant premises in this letter, however, are left unstated, deliberately While the validity of claims of privilege must be assessed on a case to
or not. The letter assumes that the invited officials are covered by E.O. case basis, examining the ground invoked therefor and the particular
464. As explained earlier, however, to be covered by the order means circumstances surrounding it, there is, in an implied claim of privilege, a
that a determination has been made, by the designated head of office or defect that renders it invalid per se. By its very nature, and as
the President, that the invited official possesses information that is demonstrated by the letter of respondent Executive Secretary quoted
covered by executive privilege. Thus, although it is not stated in the letter above, the implied claim authorized by Section 3 of E.O. 464 is not
that such determination has been made, the same must be deemed accompanied by any specific allegation of the basis thereof (e.g., whether
implied. Respecting the statement that the invited officials have not the information demanded involves military or diplomatic secrets, closed-
secured the consent of the President, it only means that the President door Cabinet meetings, etc.). While Section 2(a) enumerates the types of
has not reversed the standing prohibition against their appearance before information that are covered by the privilege under the challenged order,
Congress. 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 And so is U.S. v. Article of Drug:97
"confidential or classified information between the President and the
public officers covered by this executive order." 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
Certainly, Congress has the right to know why the executive considers interrogatories, government asserts, and nothing more, that the
the requested information privileged. It does not suffice to merely declare disclosures sought by claimant would inhibit the free expression of
that the President, or an authorized head of office, has determined that it opinion that non-disclosure is designed to protect. The government has
is so, and that the President has not overturned that determination. Such not shown – nor even alleged – that those who evaluated claimant’s
declaration leaves Congress in the dark on how the requested product were involved in internal policymaking, generally, or in this
information could be classified as privileged. That the message is particular instance. Privilege cannot be set up by an unsupported claim.
couched in terms that, on first impression, do not seem like a claim of The facts upon which the privilege is based must be established. To find
privilege only makes it more pernicious. It threatens to make Congress these interrogatories objectionable, this Court would have to assume that
doubly blind to the question of why the executive branch is not providing the evaluation and classification of claimant’s products was a matter of
it with the information that it has requested. internal policy formulation, an assumption in which this Court is unwilling
to indulge sua sponte.98 (Emphasis and underscoring supplied)
A claim of privilege, being a claim of exemption from an obligation to
disclose information, must, therefore, be clearly asserted. As U.S. v. Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an
Reynolds teaches: agency must provide ‘precise and certain’ reasons for preserving the
confidentiality of requested information."
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 Black v. Sheraton Corp. of America100 amplifies, thus:
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 A formal and proper claim of executive privilege requires a specific
consideration by that officer. The court itself must determine whether the designation and description of the documents within its scope as well as
circumstances are appropriate for the claim of privilege, and yet do so precise and certain reasons for preserving their confidentiality. Without
without forcing a disclosure of the very thing the privilege is designed to this specificity, it is impossible for a court to analyze the claim short of
protect.92 (Underscoring supplied) 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
Absent then a statement of the specific basis of a claim of executive which to weigh the applicability of the claim. An improperly asserted claim
privilege, there is no way of determining whether it falls under one of the of privilege is no claim of privilege. Therefore, despite the fact that a claim
traditional privileges, or whether, given the circumstances in which it is was made by the proper executive as Reynolds requires, the Court can
made, it should be respected.93 These, in substance, were the same not recognize the claim in the instant case because it is legally insufficient
criteria in assessing the claim of privilege asserted against the to allow the Court to make a just and reasonable determination as to its
Ombudsman in Almonte v. Vasquez94 and, more in point, against a applicability. To recognize such a broad claim in which the Defendant has
committee of the Senate in Senate Select Committee on Presidential given no precise or compelling reasons to shield these documents from
Campaign Activities v. Nixon.95 outside scrutiny, would make a farce of the whole
procedure.101 (Emphasis and underscoring supplied)
A.O. Smith v. Federal Trade Commission is enlightening:
Due respect for a co-equal branch of government, moreover, demands
[T]he lack of specificity renders an assessment of the potential harm no less than a claim of privilege clearly stating the grounds therefor.
resulting from disclosure impossible, thereby preventing the Court from Apropos is the following ruling in McPhaul v. U.S: 102
balancing such harm against plaintiffs’ needs to determine whether to
override any claims of privilege.96 (Underscoring supplied)
We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
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 No infirmity, however, can be imputed to Section 2(a) as it merely
the records of the association, a decent respect for the House of provides guidelines, binding only on the heads of office mentioned in
Representatives, by whose authority the subpoenas issued, would have Section 2(b), on what is covered by executive privilege. It does not
required that (he) state (his) reasons for noncompliance upon the return purport to be conclusive on the other branches of government. It may
of the writ. Such a statement would have given the Subcommittee an thus be construed as a mere expression of opinion by the President
opportunity to avoid the blocking of its inquiry by taking other appropriate regarding the nature and scope of executive privilege.
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 Petitioners, however, assert as another ground for invalidating the
an obstruction of its processes. His failure to make any such statement challenged order the alleged unlawful delegation of authority to the heads
was "a patent evasion of the duty of one summoned to produce papers of offices in Section 2(b). Petitioner Senate of the Philippines, in
before a congressional committee[, and] cannot be condoned." particular, cites the case of the United States where, so it claims, only the
(Emphasis and underscoring supplied; citations omitted) President can assert executive privilege to withhold information from
Congress.
Upon the other hand, Congress must not require the executive to state
the reasons for the claim with such particularity as to compel disclosure Section 2(b) in relation to Section 3 virtually provides that, once the head
of the information which the privilege is meant to protect. 103 A useful of office determines that a certain information is privileged, such
analogy in determining the requisite degree of particularity would be the determination is presumed to bear the President’s authority and has the
privilege against self-incrimination. Thus, Hoffman v. U.S.104 declares: effect of prohibiting the official from appearing before Congress, subject
only to the express pronouncement of the President that it is allowing the
The witness is not exonerated from answering merely because he appearance of such official. These provisions thus allow the President to
declares that in so doing he would incriminate himself – his say-so does authorize claims of privilege by mere silence.
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 Such presumptive authorization, however, is contrary to the exceptional
appears to the court that he is mistaken.’ However, if the witness, upon nature of the privilege. Executive privilege, as already discussed, is
interposing his claim, were required to prove the hazard in the sense in recognized with respect to information the confidential nature of which is
which a claim is usually required to be established in court, he would be crucial to the fulfillment of the unique role and responsibilities of the
compelled to surrender the very protection which the privilege is designed executive branch,105 or in those instances where exemption from
to guarantee. To sustain the privilege, it need only be evident from the disclosure is necessary to the discharge of highly important executive
implications of the question, in the setting in which it is asked, that a responsibilities.106 The doctrine of executive privilege is thus premised on
responsive answer to the question or an explanation of why it cannot be the fact that certain informations must, as a matter of necessity, be kept
answered might be dangerous because injurious disclosure could result." confidential in pursuit of the public interest. The privilege being, by
x x x (Emphasis and underscoring supplied) definition, an exemption from the obligation to disclose information, in this
case to Congress, the necessity must be of such high degree as to
The claim of privilege under Section 3 of E.O. 464 in relation to Section outweigh the public interest in enforcing that obligation in a particular
2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead case.
of providing precise and certain reasons for the claim, it merely invokes
E.O. 464, coupled with an announcement that the President has not In light of this highly exceptional nature of the privilege, the Court finds it
given her consent. It is woefully insufficient for Congress to determine essential to limit to the President the power to invoke the privilege. She
whether the withholding of information is justified under the may of course authorize the Executive Secretary to invoke the privilege
circumstances of each case. It severely frustrates the power of inquiry of on her behalf, in which case the Executive Secretary must state that the
Congress. authority is "By order of the President," which means that he personally
consulted with her. The privilege being an extraordinary power, it must be There are, it bears noting, clear distinctions between the right of
wielded only by the highest official in the executive hierarchy. In other Congress to information which underlies the power of inquiry and the
words, the President may not authorize her subordinates to exercise such right of the people to information on matters of public concern. For one,
power. There is even less reason to uphold such authorization in the the demand of a citizen for the production of documents pursuant to his
instant case where the authorization is not explicit but by mere silence. right to information does not have the same obligatory force as a
Section 3, in relation to Section 2(b), is further invalid on this score. subpoena duces tecum issued by Congress. Neither does the right to
information grant a citizen the power to exact testimony from government
It follows, therefore, that when an official is being summoned by officials. These powers belong only to Congress and not to an individual
Congress on a matter which, in his own judgment, might be covered by citizen.
executive privilege, he must be afforded reasonable time to inform the
President or the Executive Secretary of the possible need for invoking the Thus, while Congress is composed of representatives elected by the
privilege. This is necessary in order to provide the President or the people, it does not follow, except in a highly qualified sense, that in every
Executive Secretary with fair opportunity to consider whether the matter exercise of its power of inquiry, the people are exercising their right to
indeed calls for a claim of executive privilege. If, after the lapse of that information.
reasonable time, neither the President nor the Executive Secretary
invokes the privilege, Congress is no longer bound to respect the failure To the extent that investigations in aid of legislation are generally
of the official to appear before Congress and may then opt to avail of the conducted in public, however, any executive issuance tending to unduly
necessary legal means to compel his appearance. limit disclosures of information in such investigations necessarily deprives
the people of information which, being presumed to be in aid of
The Court notes that one of the expressed purposes for requiring officials legislation, is presumed to be a matter of public concern. The citizens are
to secure the consent of the President under Section 3 of E.O. 464 is to thereby denied access to information which they can use in formulating
ensure "respect for the rights of public officials appearing in inquiries in their own opinions on the matter before Congress — opinions which they
aid of legislation." That such rights must indeed be respected by can then communicate to their representatives and other government
Congress is an echo from Article VI Section 21 of the Constitution officials through the various legal means allowed by their freedom of
mandating that "[t]he rights of persons appearing in or affected by such expression. Thus holds Valmonte v. Belmonte:
inquiries shall be respected."
It is in the interest of the State that the channels for free political
In light of the above discussion of Section 3, it is clear that it is essentially discussion be maintained to the end that the government may perceive
an authorization for implied claims of executive privilege, for which and be responsive to the people’s will. Yet, this open dialogue can be
reason it must be invalidated. That such authorization is partly motivated effective only to the extent that the citizenry is informed and thus able to
by the need to ensure respect for such officials does not change the formulate its will intelligently. Only when the participants in the discussion
infirm nature of the authorization itself. are aware of the issues and have access to information relating thereto
can such bear fruit.107(Emphasis and underscoring supplied)
Right to Information
The impairment of the right of the people to information as a
E.O 464 is concerned only with the demands of Congress for the consequence of E.O. 464 is, therefore, in the sense explained above, just
appearance of executive officials in the hearings conducted by it, and not as direct as its violation of the legislature’s power of inquiry.
with the demands of citizens for information pursuant to their right to
information on matters of public concern. Petitioners are not amiss in Implementation of E.O. 464 prior to its publication
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 While E.O. 464 applies only to officials of the executive branch, it does
information. 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 shall not have merely nullified the power of our legislature to inquire into
people in general, Tañada v. Tuvera states: 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.
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 WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and
albeit there are some that do not apply to them directly. An example is a 3 of Executive Order No. 464 (series of 2005), "Ensuring Observance of
law granting citizenship to a particular individual, like a relative of the Principle of Separation of Powers, Adherence to the Rule on
President Marcos who was decreed instant naturalization. It surely Executive
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 Privilege and Respect for the Rights of Public Officials Appearing in
such law is a matter of public interest which any member of the body Legislative Inquiries in Aid of Legislation Under the Constitution, and For
politic may question in the political forums or, if he is a proper party, even Other Purposes," are declared VOID. Sections 1 and 2(a) are, however,
in courts of justice.108 (Emphasis and underscoring supplied) VALID.

Although the above statement was made in reference to statutes, logic SO ORDERED.
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.
Republic of the Philippines
Conclusion SUPREME COURT
Manila
Congress undoubtedly has a right to information from the executive
EN BANC
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. G.R. No. 180643 September 4, 2008

The infirm provisions of E.O. 464, however, allow the executive branch to ROMULO L. NERI, petitioner,
evade congressional requests for information without need of clearly vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS
asserting a right to do so and/or proffering its reasons therefor. By the
AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND
mere expedient of invoking said provisions, the power of Congress to
COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND
conduct inquiries in aid of legislation is frustrated. That is impermissible. SECURITY, respondents.
For
RESOLUTION
[w]hat republican theory did accomplish…was to reverse the old
presumption in favor of secrecy, based on the divine right of kings and
LEONARDO-DE CASTRO, J.:
nobles, and replace it with a presumption in favor of publicity, based on
the doctrine of popular sovereignty. (Underscoring supplied) 109
Executive privilege is not a personal privilege, but one that adheres to the
Office of the President. It exists to protect public interest, not to benefit a
Resort to any means then by which officials of the executive branch could particular public official. Its purpose, among others, is to assure that the
refuse to divulge information cannot be presumed valid. Otherwise, we nation will receive the benefit of candid, objective and untrammeled
communication and exchange of information between the President and Respondent Committees persisted in knowing petitioner’s answers to these
his/her advisers in the process of shaping or forming policies and arriving at three questions by requiring him to appear and testify once more on
decisions in the exercise of the functions of the Presidency under the November 20, 2007. On November 15, 2007, Executive Secretary Eduardo
Constitution. The confidentiality of the President’s conversations and R. Ermita wrote to respondent Committees and requested them to dispense
correspondence is not unique. It is akin to the confidentiality of judicial with petitioner’s testimony on the ground of executive privilege.7The letter of
deliberations. It possesses the same value as the right to privacy of all Executive Secretary Ermita pertinently stated:
citizens and more, because it is dictated by public interest and the
constitutionally ordained separation of governmental powers. Following the ruling in Senate v. Ermita, the foregoing questions fall
under conversations and correspondence between the President and
In these proceedings, this Court has been called upon to exercise its power public officials which are considered executive privilege (Almonte v.
of review and arbitrate a hotly, even acrimoniously, debated dispute between Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250,
the Court’s co-equal branches of government. In this task, this Court should July 9, 2002). Maintaining the confidentiality of conversations of the
neither curb the legitimate powers of any of the co-equal and coordinate President is necessary in the exercise of her executive and policy
branches of government nor allow any of them to overstep the boundaries decision making process. The expectation of a President to the
set for it by our Constitution. The competing interests in the case at bar are confidentiality of her conversations and correspondences, like the
the claim of executive privilege by the President, on the one hand, and the value which we accord deference for the privacy of all citizens, is the
respondent Senate Committees’ assertion of their power to conduct necessity for protection of the public interest in candid, objective, and
legislative inquiries, on the other. The particular facts and circumstances of even blunt or harsh opinions in Presidential decision-making.
the present case, stripped of the politically and emotionally charged rhetoric Disclosure of conversations of the President will have a chilling effect
from both sides and viewed in the light of settled constitutional and legal on the President, and will hamper her in the effective discharge of
doctrines, plainly lead to the conclusion that the claim of executive privilege her duties and responsibilities, if she is not protected by the
must be upheld. confidentiality of her conversations.

Assailed in this motion for reconsideration is our Decision dated March 25, The context in which executive privilege is being invoked is that the
2008 (the "Decision"), granting the petition for certiorari filed by petitioner information sought to be disclosed might impair our diplomatic as
Romulo L. Neri against the respondent Senate Committees on Accountability well as economic relations with the People’s Republic of China.
of Public Officers and Investigations,1 Trade and Commerce,2 and National Given the confidential nature in which these information were
Defense and Security (collectively the "respondent Committees"). 3 conveyed to the President, he cannot provide the Committee any
further details of these conversations, without disclosing the very
A brief review of the facts is imperative. thing the privilege is designed to protect.

On September 26, 2007, petitioner appeared before respondent Committees In light of the above considerations, this Office is constrained to
and testified for about eleven (11) hours on matters concerning the National invoke the settled doctrine of executive privilege as refined in Senate
Broadband Project (the "NBN Project"), a project awarded by the Department v. Ermita, and has advised Secretary Neri accordingly.
of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Considering that Sec. Neri has been lengthily interrogated on the
Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered subject in an unprecedented 11-hour hearing, wherein he has
him P200 Million in exchange for his approval of the NBN Project. He further answered all questions propounded to him except the foregoing
narrated that he informed President Gloria Macapagal Arroyo ("President questions involving executive privilege, we therefore request that his
Arroyo") of the bribery attempt and that she instructed him not to accept the testimony on 20 November 2007 on the ZTE / NBN project be
bribe. However, when probed further on President Arroyo and petitioner’s dispensed with.
discussions relating to the NBN Project, petitioner refused to answer,
invoking "executive privilege." To be specific, petitioner refused to answer On November 20, 2007, petitioner did not appear before respondent
questions on: (a) whether or not President Arroyo followed up the NBN Committees upon orders of the President invoking executive privilege. On
Project,4 (b) whether or not she directed him to prioritize it, 5 and (c) whether November 22, 2007, the respondent Committees issued the show-cause
or not she directed him to approve it.6
letter requiring him to explain why he should not be cited in contempt. On inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding
November 29, 2007, in petitioner’s reply to respondent Committees, he that led to their issuance of the contempt order, (d) they violated Section 21,
manifested that it was not his intention to ignore the Senate hearing and that Article VI of the Constitution because their inquiry was not in accordance with
he thought the only remaining questions were those he claimed to be the "duly published rules of procedure," and (e) they issued the contempt
covered by executive privilege. He also manifested his willingness to appear order arbitrarily and precipitately.
and testify should there be new matters to be taken up. He just requested
that he be furnished "in advance as to what else" he "needs to clarify." On April 8, 2008, respondent Committees filed the present motion for
reconsideration, anchored on the following grounds:
Respondent Committees found petitioner’s explanations unsatisfactory.
Without responding to his request for advance notice of the matters that he I
should still clarify, they issued the Order dated January 30, 2008; In Re: P.S.
Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE
and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of IS NO DOUBT THAT THE ASSAILED ORDERS WERE ISSUED BY
respondent Committees and ordering his arrest and detention at the Office of RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE
the Senate Sergeant-at-Arms until such time that he would appear and give OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR
his testimony. OVERSIGHT FUNCTIONS.

On the same date, petitioner moved for the reconsideration of the above II
Order.8 He insisted that he had not shown "any contemptible conduct worthy
of contempt and arrest." He emphasized his willingness to testify on new
matters, but respondent Committees did not respond to his request for CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE
advance notice of questions. He also mentioned the petition for certiorari he CAN BE NO PRESUMPTION THAT THE INFORMATION
previously filed with this Court on December 7, 2007. According to him, this WITHHELD IN THE INSTANT CASE IS PRIVILEGED.
should restrain respondent Committees from enforcing the order dated
January 30, 2008 which declared him in contempt and directed his arrest and III
detention.
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent IS NO FACTUAL OR LEGAL BASIS TO HOLD THAT THE
Application for TRO/Preliminary Injunction) on February 1, 2008. In the COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3)
Court’s Resolution dated February 4, 2008, the parties were required to QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE,
observe the status quo prevailing prior to the Order dated January 30, 2008. CONSIDERING THAT:

On March 25, 2008, the Court granted his petition for certiorari on two A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH
grounds: first, the communications elicited by the three (3) questions were EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE STATE
covered by executive privilege; and second, respondent Committees SECRETS.
committed grave abuse of discretion in issuing the contempt order. Anent the
first ground, we considered the subject communications as falling under B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE
the presidential communications privilege because (a) they related to a COURT IN THE DECISION IS APPLIED, THERE IS NO SHOWING
quintessential and non-delegable power of the President, (b) they were THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS
received by a close advisor of the President, and (c) respondent Committees PRIVILEGE ARE PRESENT.
failed to adequately show a compelling need that would justify the limitation
of the privilege and the unavailability of the information elsewhere by an C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A
appropriate investigating authority. As to the second ground, we found that COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF THE
respondent Committees committed grave abuse of discretion in issuing the INFORMATION SOUGHT.
contempt order because (a) there was a valid claim of executive privilege, (b)
their invitations to petitioner did not contain the questions relevant to the
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE of executive privilege because it appears that they could legislate even
INSTANT CASE WOULD SERIOUSLY IMPAIR THE without the communications elicited by the three (3) questions, and they
RESPONDENTS’ PERFORMANCE OF THEIR PRIMARY admitted that they could dispense with petitioner’s testimony if certain NEDA
FUNCTION TO ENACT LAWS. documents would be given to them; third, the requirement of specificity
applies only to the privilege for State, military and diplomatic secrets, not to
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO the necessarily broad and all-encompassing presidential communications
INFORMATION, AND THE CONSTITUTIONAL POLICIES ON privilege; fourth, there is no right to pry into the President’s thought
PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH processes or exploratory exchanges; fifth, petitioner is not covering up or
THE CLAIM OF EXECUTIVE PRIVILEGE. hiding anything illegal; sixth, the Court has the power and duty to annul the
Senate Rules; seventh, the Senate is not a continuing body, thus the failure
IV of the present Senate to publish its Rules of Procedure Governing Inquiries
in Aid of Legislation (Rules) has a vitiating effect on them; eighth, the
requirement for a witness to be furnished advance copy of questions
CONTRARY TO THIS HONORABLE COURT’S DECISION, comports with due process and the constitutional mandate that the rights of
RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF witnesses be respected; and ninth, neither petitioner nor respondent has the
DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, final say on the matter of executive privilege, only the Court.
CONSIDERING THAT:
For its part, the Office of the Solicitor General maintains that: (1) there is no
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE categorical pronouncement from the Court that the assailed Orders were
PRIVILEGE IN THE INSTANT CASE. issued by respondent Committees pursuant to their oversight function;
hence, there is no reason for them "to make much" of the distinction between
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED Sections 21 and 22, Article VI of the Constitution; (2) presidential
REQUIREMENTS LAID DOWN IN SENATE V. ERMITA. communications enjoy a presumptive privilege against disclosure as earlier
held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10;
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN (3) the communications elicited by the three (3) questions are covered by
ACCORDANCE WITH THEIR INTERNAL RULES. executive privilege, because all the elements of the presidential
communications privilege are present; (4) the subpoena ad
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS testificandum issued by respondent Committees to petitioner is fatally
UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION defective under existing law and jurisprudence; (5) the failure of the present
REQUIRING THAT ITS RULES OF PROCEDURE BE DULY Senate to publish its Rules renders the same void; and (6) respondent
PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE Committees arbitrarily issued the contempt order.
COURT CONSIDERED THE OSG’S INTERVENTION ON THIS
ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY Incidentally, respondent Committees’ objection to the Resolution dated
TO COMMENT. March 18, 2008 (granting the Office of the Solicitor General’s Motion for
Leave to Intervene and to Admit Attached Memorandum) only after the
E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS promulgation of the Decision in this case is foreclosed by its untimeliness.
NOT ARBITRARY OR PRECIPITATE.
The core issues that arise from the foregoing respective contentions of the
In his Comment, petitioner charges respondent Committees with opposing parties are as follows:
exaggerating and distorting the Decision of this Court. He avers that there is
nothing in it that prohibits respondent Committees from investigating the NBN (1) whether or not there is a recognized presumptive presidential
Project or asking him additional questions. According to petitioner, the Court communications privilege in our legal system;
merely applied the rule on executive privilege to the facts of the case. He
further submits the following contentions: first, the assailed Decision did not
reverse the presumption against executive secrecy laid down in Senate v.
Ermita; second, respondent Committees failed to overcome the presumption
(2) whether or not there is factual or legal basis to hold that the Respondent Committees’ observation that this Court’s Decision reversed the
communications elicited by the three (3) questions are covered by "presumption that inclines heavily against executive secrecy and in favor of
executive privilege; disclosure" arises from a piecemeal interpretation of the said Decision. The
Court has repeatedly held that in order to arrive at the true intent and
(3) whether or not respondent Committees have shown that the meaning of a decision, no specific portion thereof should be isolated and
communications elicited by the three (3) questions are critical to the resorted to, but the decision must be considered in its entirety. 19
exercise of their functions; and
Note that the aforesaid presumption is made in the context of the
(4) whether or not respondent Committees committed grave abuse of circumstances obtaining in Senate v. Ermita, which declared void Sections
discretion in issuing the contempt order. 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent
portion of the decision in the said case reads:
We shall discuss these issues seriatim.
From the above discussion on the meaning and scope of executive
I privilege, both in the United States and in this jurisprudence, a clear
principle emerges. Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation
There Is a Recognized Presumptive to certain types of information of a sensitive character. While
Presidential Communications Privilege executive privilege is a constitutional concept, a claim thereof may
be valid or not depending on the ground invoked to justify it and the
Respondent Committees ardently argue that the Court’s declaration that context in which it is made. Noticeably absent is any recognition that
presidential communications are presumptively privileged reverses the executive officials are exempt from the duty to disclose
"presumption" laid down in Senate v. Ermita11 that "inclines heavily against information by the mere fact of being executive officials. Indeed, the
executive secrecy and in favor of disclosure." Respondent Committees then extraordinary character of the exemptions indicates that the
claim that the Court erred in relying on the doctrine in Nixon. presumption inclines heavily against executive secrecy and in
favor of disclosure. (Emphasis and underscoring supplied)
Respondent Committees argue as if this were the first time the presumption
in favor of the presidential communications privilege is mentioned and Obviously, the last sentence of the above-quoted paragraph in Senate v.
adopted in our legal system. That is far from the truth. The Court, in the Ermita refers to the "exemption" being claimed by the executive officials
earlier case of Almonte v. Vasquez,12 affirmed that the presidential mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions
communications privilege is fundamental to the operation of government in the Executive Branch. This means that when an executive official, who is
and inextricably rooted in the separation of powers under the Constitution. one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be
Even Senate v. Ermita,13 the case relied upon by respondent Committees, exempt from disclosure, there can be no presumption of authorization to
reiterated this concept. There, the Court enumerated the cases in which the invoke executive privilege given by the President to said executive
claim of executive privilege was recognized, among them Almonte v. official, such that the presumption in this situation inclines heavily against
Chavez, Chavez v. Presidential Commission on Good Government executive secrecy and in favor of disclosure.
(PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that
"there are certain types of information which the government may withhold Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this
from the public,16" that there is a "governmental privilege against public wise:
disclosure with respect to state secrets regarding military, diplomatic and
other national security matters";17 and that "the right to information does
not extend to matters recognized as ‘privileged information’ under the Section 2(b) in relation to Section 3 virtually provides that, once the
separation of powers, by which the Court meant Presidential head of office determines that a certain information is privileged,
conversations, correspondences, and discussions in closed-door such determination is presumed to bear the President’s authority and
Cabinet meetings."18 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 The phrase "executive privilege" is not new in this jurisdiction.
mere silence. It has been used even prior to the promulgation of the 1986
Constitution. Being of American origin, it is best understood in light of
Such presumptive authorization, however, is contrary to the how it has been defined and used in the legal literature of the United
exceptional nature of the privilege. Executive privilege, as already States.
discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and Schwart defines executive privilege as "the power of the
responsibilities of the executive branch, or in those instances where Government to withhold information from the public, the courts,
exemption from disclosure is necessary to the discharge of highly and the Congress. Similarly, Rozell defines it as "the right of the
important executive responsibilities. The doctrine of executive President and high-level executive branch officers to withhold
privilege is thus premised on the fact that certain information information from Congress, the courts, and ultimately the public." x x
must, as a matter of necessity, be kept confidential in pursuit of the x In this jurisdiction, the doctrine of executive privilege was
public interest. The privilege being, by definition, an exemption from recognized by this Court in Almonte v. Vasquez. Almonte used the
the obligation to disclose information, in this case to Congress, the term in reference to the same privilege subject of Nixon. It quoted the
necessity must be of such high degree as to outweigh the public following portion of the Nixon decision which explains the basis for
interest in enforcing that obligation in a particular case. the privilege:

In light of this highly exceptional nature of the privilege, the Court "The expectation of a President to the confidentiality of his
finds it essential to limit to the President the power to invoke the conversations and correspondences, like the claim of
privilege. She may of course authorize the Executive Secretary to confidentiality of judicial deliberations, for example, he has all the
invoke the privilege on her behalf, in which case the Executive values to which we accord deference for the privacy of all citizens
Secretary must state that the authority is "By order of the President", and, added to those values, is the necessity for protection of the
which means that he personally consulted with her. The privilege public interest in candid, objective, and even blunt or harsh opinions
being an extraordinary power, it must be wielded only by the highest in Presidential decision-making. A President and those who assist
official in the executive hierarchy. In other words, the President may him must be free to explore alternatives in the process of shaping
not authorize her subordinates to exercise such power. There is even policies and making decisions and to do so in a way many would be
less reason to uphold such authorization in the instant case where unwilling to express except privately. These are the considerations
the authorization is not explicit but by mere silence. Section 3, in justifying a presumptive privilege for Presidential
relation to Section 2(b), is further invalid on this score. communications. The privilege is fundamental to the operation
of government and inextricably rooted in the separation of
The constitutional infirmity found in the blanket authorization to invoke powers under the Constitution x x x " (Emphasis and italics
executive privilege granted by the President to executive officials in Sec. 2(b) supplied)
of E.O. No. 464 does not obtain in this case.
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege
In this case, it was the President herself, through Executive Secretary Ermita, for Presidential communication," which was recognized early on in Almonte
who invoked executive privilege on a specific matter involving an executive v. Vasquez. To construe the passage in Senate v. Ermita adverted to in the
agreement between the Philippines and China, which was the subject of the Motion for Reconsideration of respondent Committees, referring to the non-
three (3) questions propounded to petitioner Neri in the course of the Senate existence of a "presumptive authorization" of an executive official, to mean
Committees’ investigation. Thus, the factual setting of this case markedly that the "presumption" in favor of executive privilege "inclines heavily against
differs from that passed upon in Senate v. Ermita. executive secrecy and in favor of disclosure" is to distort the ruling in
the Senate v. Ermita and make the same engage in self-contradiction.
Moreover, contrary to the claim of respondents, the Decision in this present
case hews closely to the ruling in Senate v. Ermita,21 to wit: Senate v. Ermita22 expounds on the constitutional underpinning of the
relationship between the Executive Department and the Legislative
Department to explain why there should be no implied authorization or
Executive privilege
presumptive authorization to invoke executive privilege by the President’s The fact that a power is subject to the concurrence of another entity does not
subordinate officials, as follows: make such power less executive. "Quintessential" is defined as the most
perfect embodiment of something, the concentrated essence of
When Congress exercises its power of inquiry, the only way for substance.24 On the other hand, "non-delegable" means that a power or duty
department heads to exempt themselves therefrom is by a valid cannot be delegated to another or, even if delegated, the responsibility
claim of privilege. They are not exempt by the mere fact that remains with the obligor.25 The power to enter into an executive agreement is
they are department heads. Only one executive official may be in essence an executive power. This authority of the President to enter into
exempted from this power - the President on whom executive power executive agreements without the concurrence of the Legislature has
is vested, hence, beyond the reach of Congress except through the traditionally been recognized in Philippine jurisprudence. 26 Now, the fact that
power of impeachment. It is based on he being the highest official of the President has to secure the prior concurrence of the Monetary Board,
the executive branch, and the due respect accorded to a co-equal which shall submit to Congress a complete report of its decision before
branch of governments which is sanctioned by a long-standing contracting or guaranteeing foreign loans, does not diminish the executive
custom. (Underscoring supplied) nature of the power.

Thus, if what is involved is the presumptive privilege of presidential The inviolate doctrine of separation of powers among the legislative,
communications when invoked by the President on a matter clearly within the executive and judicial branches of government by no means prescribes
domain of the Executive, the said presumption dictates that the same be absolute autonomy in the discharge by each branch of that part of the
recognized and be given preference or priority, in the absence of proof of a governmental power assigned to it by the sovereign people. There is the
compelling or critical need for disclosure by the one assailing such corollary doctrine of checks and balances, which has been carefully
presumption. Any construction to the contrary will render meaningless the calibrated by the Constitution to temper the official acts of each of these
presumption accorded by settled jurisprudence in favor of executive privilege. three branches. Thus, by analogy, the fact that certain legislative acts require
In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations action from the President for their validity does not render such acts less
justifying a presumptive privilege for Presidential communications."23 legislative in nature. A good example is the power to pass a law. Article VI,
Section 27 of the Constitution mandates that every bill passed by Congress
II shall, before it becomes a law, be presented to the President who shall
approve or veto the same. The fact that the approval or vetoing of the bill is
lodged with the President does not render the power to pass law executive in
There Are Factual and Legal Bases to nature. This is because the power to pass law is generally a quintessential
Hold that the Communications Elicited by the and non-delegable power of the Legislature. In the same vein, the executive
Three (3) Questions Are Covered by Executive Privilege power to enter or not to enter into a contract to secure foreign loans does not
become less executive in nature because of conditions laid down in the
Respondent Committees claim that the communications elicited by the three Constitution. The final decision in the exercise of the said executive power is
(3) questions are not covered by executive privilege because the elements of still lodged in the Office of the President.
the presidential communications privilege are not present.
B. The "doctrine of operational proximity" was laid down precisely to
A. The power to enter into an executive agreement is a "quintessential limit the scope of the presidential communications privilege but, in any
and non-delegable presidential power." case, it is not conclusive.

First, respondent Committees contend that the power to secure a foreign Second, respondent Committees also seek reconsideration of the
loan does not relate to a "quintessential and non-delegable presidential application of the "doctrine of operational proximity" for the reason that "it
power," because the Constitution does not vest it in the President alone, but maybe misconstrued to expand the scope of the presidential communications
also in the Monetary Board which is required to give its prior concurrence privilege to communications between those who are ‘operationally proximate’
and to report to Congress. to the President but who may have "no direct communications with her."

This argument is unpersuasive. It must be stressed that the doctrine of "operational proximity" was laid down
in In re: Sealed Case27precisely to limit the scope of the presidential
communications privilege. The U.S. court was aware of the dangers that a C. The President’s claim of executive privilege is not merely based on a
limitless extension of the privilege risks and, therefore, carefully cabined its generalized interest; and in balancing respondent Committees’ and the
reach by explicitly confining it to White House staff, and not to staffs of the President’s clashing interests, the Court did not disregard the 1987
agencies, and then only to White House staff that has "operational proximity" Constitutional provisions on government transparency, accountability
to direct presidential decision-making, thus: and disclosure of information.

We are aware that such an extension, unless carefully circumscribed Third, respondent Committees claim that the Court erred in upholding the
to accomplish the purposes of the privilege, could pose a significant President’s invocation, through the Executive Secretary, of executive
risk of expanding to a large swath of the executive branch a privilege privilege because (a) between respondent Committees’ specific and
that is bottomed on a recognition of the unique role of the President. demonstrated need and the President’s generalized interest in confidentiality,
In order to limit this risk, the presidential communications privilege there is a need to strike the balance in favor of the former; and (b) in the
should be construed as narrowly as is consistent with ensuring that balancing of interest, the Court disregarded the provisions of the 1987
the confidentiality of the President’s decision-making process is Philippine Constitution on government transparency, accountability and
adequately protected. Not every person who plays a role in the disclosure of information, specifically, Article III, Section 7;29 Article II,
development of presidential advice, no matter how remote and Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section
removed from the President, can qualify for the privilege. In 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37
particular, the privilege should not extend to staff outside the
White House in executive branch agencies. Instead, the privilege It must be stressed that the President’s claim of executive privilege is not
should apply only to communications authored or solicited and merely founded on her generalized interest in confidentiality. The Letter
received by those members of an immediate White House advisor’s dated November 15, 2007 of Executive Secretary Ermita
staff who have broad and significant responsibility for investigation specified presidential communications privilege in relation to diplomatic
and formulating the advice to be given the President on the particular and economic relations with another sovereign nation as the bases for
matter to which the communications relate. Only communications the claim. Thus, the Letter stated:
at that level are close enough to the President to be revelatory
of his deliberations or to pose a risk to the candor of his The context in which executive privilege is being invoked is that
advisers. See AAPS, 997 F.2d at 910 (it is "operational the information sought to be disclosed might impair our
proximity" to the President that matters in determining whether diplomatic as well as economic relations with the People’s
"[t]he President’s confidentiality interests" is
Republic of China. Given the confidential nature in which this
implicated). (Emphasis supplied)
information were conveyed to the President, he cannot provide the
Committee any further details of these conversations, without
In the case at bar, the danger of expanding the privilege "to a large swath of disclosing the very thing the privilege is designed to
the executive branch" (a fear apparently entertained by respondents) is protect. (emphasis supplied)
absent because the official involved here is a member of the Cabinet, thus,
properly within the term "advisor" of the President; in fact, her alter ego and a Even in Senate v. Ermita, it was held that Congress must not require the
member of her official family. Nevertheless, in circumstances in which the Executive to state the reasons for the claim with such particularity as to
official involved is far too remote, this Court also mentioned in the Decision compel disclosure of the information which the privilege is meant to protect.
the organizational test laid down in Judicial Watch, Inc. v. Department of
This is a matter of respect for a coordinate and co-equal department.
Justice.28 This goes to show that the operational proximity test used in the
Decision is not considered conclusive in every case. In determining which
test to use, the main consideration is to limit the availability of executive It is easy to discern the danger that goes with the disclosure of the
privilege only to officials who stand proximate to the President, not only by President’s communication with her advisor. The NBN Project involves a
reason of their function, but also by reason of their positions in the foreign country as a party to the agreement. It was actually a product of the
Executive’s organizational structure. Thus, respondent Committees’ fear that meeting of minds between officials of the Philippines and China. Whatever
the scope of the privilege would be unnecessarily expanded with the use of the President says about the agreement - particularly while official
the operational proximity test is unfounded. negotiations are ongoing - are matters which China will surely view with
particular interest. There is danger in such kind of exposure. It could
adversely affect our diplomatic as well as economic relations with the The nature of diplomacy requires centralization of authority and
People’s Republic of China. We reiterate the importance of secrecy in expedition of decision which are inherent in executive
matters involving foreign negotiations as stated in United States v. Curtiss- action. Another essential characteristic of diplomacy is its
Wright Export Corp., 38 thus: confidential nature.Although much has been said about "open" and
"secret" diplomacy, with disparagement of the latter, Secretaries of
The nature of foreign negotiations requires caution, and their State Hughes and Stimson have clearly analyzed and justified the
success must often depend on secrecy, and even when brought to a practice. In the words of Mr. Stimson:
conclusion, a full disclosure of all the measures, demands, or
eventual concessions which may have been proposed or "A complicated negotiation …cannot be carried through
contemplated would be extremely impolitic, for this might have a without many, many private talks and discussion, man
pernicious influence on future negotiations or produce immediate to man; many tentative suggestions and
inconveniences, perhaps danger and mischief, in relation to other proposals. Delegates from other countries come and tell
powers. The necessity of such caution and secrecy was one cogent you in confidence of their troubles at home and of their
reason for vesting the power of making treaties in the President, with differences with other countries and with other
the advice and consent of the Senate, the principle on which the delegates; they tell you of what they would do under
body was formed confining it to a small number of members. To certain circumstances and would not do under other
admit, then, a right in the House of Representatives to demand and circumstances… If these reports… should become
to have as a matter of course all the papers respecting a negotiation public… who would ever trust American Delegations in
with a foreign power would be to establish a dangerous precedent. another conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284)
US jurisprudence clearly guards against the dangers of allowing Congress
access to all papers relating to a negotiation with a foreign power. In this xxxx
jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v.
Thomas G. Aquino, et al.39upheld the privileged character of diplomatic There is frequent criticism of the secrecy in which negotiation
negotiations. In Akbayan, the Court stated: with foreign powers on nearly all subjects is concerned. This, it
is claimed, is incompatible with the substance of democracy. As
Privileged character of diplomatic negotiations expressed by one writer, "It can be said that there is no more rigid
system of silence anywhere in the world." (E.J. Young, Looking
The privileged character of diplomatic negotiations has been recognized in Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson in
this jurisdiction. In discussing valid limitations on the right to information, the starting his efforts for the conclusion of the World War declared that
Court in Chavez v. PCGG held that "information on inter-government we must have "open covenants, openly arrived at." He quickly
exchanges prior to the conclusion of treaties and executive agreements may abandoned his thought.
be subject to reasonable safeguards for the sake of national interest." Even
earlier, the same privilege was upheld in People’s Movement for Press No one who has studied the question believes that such a method of
Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for publicity is possible. In the moment that negotiations are started,
the privilege in more precise terms. pressure groups attempt to "muscle in." An ill-timed speech by
one of the parties or a frank declaration of the concession
In PMPF v. Manglapus, the therein petitioners were seeking information from which are exacted or offered on both sides would quickly lead
the President’s representatives on the state of the then on-going negotiations to a widespread propaganda to block the negotiations. After a
of the RP-US Military Bases Agreement. The Court denied the petition, treaty has been drafted and its terms are fully published, there
stressing that "secrecy of negotiations with foreign countries is not is ample opportunity for discussion before it is approved. (The
violative of the constitutional provisions of freedom of speech or of the press New American Government and Its Works, James T. Young, 4th
nor of the freedom of access to information." The Resolution went on to Edition, p. 194) (Emphasis and underscoring supplied)
state, thus:
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss- In the case at bar, this Court, in upholding executive privilege with respect to
Wright Export Corp. that the President is the sole organ of the nation in its three (3) specific questions, did not in any way curb the public’s right to
negotiations with foreign countries,viz: information or diminish the importance of public accountability and
transparency.
"x x x In this vast external realm, with its important, complicated,
delicate and manifold problems, the President alone has the power This Court did not rule that the Senate has no power to investigate the NBN
to speak or listen as a representative of the nation. Project in aid of legislation. There is nothing in the assailed Decision that
He makes treaties with the advice and consent of the Senate; but he prohibits respondent Committees from inquiring into the NBN Project. They
alone negotiates. Into the field of negotiation the Senate cannot could continue the investigation and even call petitioner Neri to testify again.
intrude; and Congress itself is powerless to invade it. As Marshall He himself has repeatedly expressed his willingness to do so. Our Decision
said in his great arguments of March 7, 1800, in the House of merely excludes from the scope of respondents’ investigation the three (3)
Representatives, "The President is the sole organ of the nation in questions that elicit answers covered by executive privilege and rules that
its external relations, and its sole representative with foreign petitioner cannot be compelled to appear before respondents to answer the
nations." Annals, 6th Cong., col. 613… (Emphasis supplied; said questions. We have discussed the reasons why these answers are
underscoring in the original) covered by executive privilege. That there is a recognized public interest in
the confidentiality of such information is a recognized principle in other
Considering that the information sought through the three (3) questions democratic States. To put it simply, the right to information is not an absolute
subject of this Petition involves the President’s dealings with a foreign nation, right.
with more reason, this Court is wary of approving the view that Congress
may peremptorily inquire into not only official, documented acts of the Indeed, the constitutional provisions cited by respondent Committees do not
President but even her confidential and informal discussions with her close espouse an absolute right to information. By their wording, the intention of
advisors on the pretext that said questions serve some vague legislative the Framers to subject such right to the regulation of the law is unmistakable.
need. Regardless of who is in office, this Court can easily foresee unwanted The highlighted portions of the following provisions show the obvious
consequences of subjecting a Chief Executive to unrestricted congressional limitations on the right to information, thus:
inquiries done with increased frequency and great publicity. No Executive
can effectively discharge constitutional functions in the face of intense and Article III, Sec. 7. The right of the people to information on matters
unchecked legislative incursion into the core of the President’s decision- of public concern shall be recognized. Access to official records, and
making process, which inevitably would involve her conversations with a to documents, and papers pertaining to official records, and to
member of her Cabinet. documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
With respect to respondent Committees’ invocation of constitutional policy development, shall be afforded the citizen, subject to such
prescriptions regarding the right of the people to information and public limitations as may be provided by law.
accountability and transparency, the Court finds nothing in these arguments
to support respondent Committees’ case. Article II, Sec. 28. Subject to reasonable conditions prescribed
by law, the State adopts and implements a policy of full public
There is no debate as to the importance of the constitutional right of the disclosure of all its transactions involving public interest. (Emphasis
people to information and the constitutional policies on public accountability supplied)
and transparency. These are the twin postulates vital to the effective
functioning of a democratic government. The citizenry can become prey to In Chavez v. Presidential Commission on Good Government,40 it was stated
the whims and caprices of those to whom the power has been delegated if that there are no specific laws prescribing the exact limitations within which
they are denied access to information. And the policies on public the right may be exercised or the correlative state duty may be obliged.
accountability and democratic government would certainly be mere empty Nonetheless, it enumerated the recognized restrictions to such rights, among
words if access to such information of public concern is denied. them: (1) national security matters, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential information.
National security matters include state secrets regarding military and
diplomatic matters, as well as information on inter-government exchanges a whole may have relevance. The jurisprudential test laid down by this Court
prior to the conclusion of treaties and executive agreements. It was further in past decisions on executive privilege is that the presumption of privilege
held that even where there is no need to protect such state secrets, can only be overturned by a showing of compelling need for disclosure of
they must be "examined in strict confidence and given scrupulous the information covered by executive privilege.
protection."
In the Decision, the majority held that "there is no adequate showing of a
Incidentally, the right primarily involved here is the right of respondent compelling need that would justify the limitation of the privilege and of the
Committees to obtain information allegedly in aid of legislation, not the unavailability of the information elsewhere by an appropriate investigating
people’s right to public information. This is the reason why we stressed in the authority." In the Motion for Reconsideration, respondent Committees argue
assailed Decision the distinction between these two rights. As laid down that the information elicited by the three (3) questions are necessary in the
in Senate v. Ermita, "the demand of a citizen for the production of documents discharge of their legislative functions, among them, (a) to consider the three
pursuant to his right to information does not have the same obligatory force (3) pending Senate Bills, and (b) to curb graft and corruption.
as a subpoena duces tecum issued by Congress" and "neither does the right
to information grant a citizen the power to exact testimony from government We remain unpersuaded by respondents’ assertions.
officials." As pointed out, these rights belong to Congress, not to the
individual citizen. It is worth mentioning at this juncture that the parties here In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to
are respondent Committees and petitioner Neri and that there was no prior balancing against other interests and it is necessary to resolve the competing
request for information on the part of any individual citizen. This Court will not interests in a manner that would preserve the essential functions of each
be swayed by attempts to blur the distinctions between the Legislature's right branch. There, the Court weighed between presidential privilege and the
to information in a legitimate legislative inquiry and the public's right to legitimate claims of the judicial process. In giving more weight to the latter,
information.
the Court ruled that the President's generalized assertion of privilege must
yield to the demonstrated, specific need for evidence in a pending criminal
For clarity, it must be emphasized that the assailed Decision did not trial.
enjoin respondent Committees from inquiring into the NBN Project. All
that is expected from them is to respect matters that are covered by
The Nixon Court ruled that an absolute and unqualified privilege would stand
executive privilege.
in the way of the primary constitutional duty of the Judicial Branch to do
justice in criminal prosecutions. The said Court further ratiocinated, through
III. its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting
opinion, as follows:
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions "... this presumptive privilege must be considered in light of our
Are Critical to the Exercise of their Functions historic commitment to the rule of law. This is nowhere more
profoundly manifest than in our view that 'the twofold aim (of criminal
In their Motion for Reconsideration, respondent Committees devote an justice) is that guild shall not escape or innocence suffer.' Berger v.
unusually lengthy discussion on the purported legislative nature of their entire United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to
inquiry, as opposed to an oversight inquiry. employ an adversary system of criminal justice in which the parties
contest all issues before a court of law. The need to develop all
At the outset, it must be clarified that the Decision did not pass upon the relevant facts in the adversary system is both fundamental and
nature of respondent Committees’ inquiry into the NBN Project. To reiterate, comprehensive. The ends of criminal justice would be defeated
this Court recognizes respondent Committees’ power to investigate the NBN if judgments were to be founded on a partial or speculative
Project in aid of legislation. However, this Court cannot uphold the view that presentation of the facts. The very integrity of the judicial
when a constitutionally guaranteed privilege or right is validly invoked by a system and public confidence in the system depend on full
witness in the course of a legislative investigation, the legislative purpose of disclosure of all the facts, within the framework of the rules of
respondent Committees’ questions can be sufficiently supported by the evidence. To ensure that justice is done, it is imperative to the
expedient of mentioning statutes and/or pending bills to which their inquiry as function of courts that compulsory process be available for the
production of evidence needed either by the prosecution or by the privilege must yield to the demonstrated, specific need for
defense. evidence in a pending criminal trial. (emphasis supplied)

xxx xxx xxx In the case at bar, we are not confronted with a court’s need for facts in order
to adjudge liability in a criminal case but rather with the Senate’s need for
The right to the production of all evidence at a criminal trial similarly information in relation to its legislative functions. This leads us to consider
has constitutional dimensions. The Sixth Amendment explicitly once again just how critical is the subject information in the discharge of
confers upon every defendant in a criminal trial the right 'to be respondent Committees’ functions. The burden to show this is on the
confronted with the witness against him' and 'to have respondent Committees, since they seek to intrude into the sphere of
compulsory process for obtaining witnesses in his favor.' Moreover, competence of the President in order to gather information which, according
the Fifth Amendment also guarantees that no person shall be to said respondents, would "aid" them in crafting legislation.
deprived of liberty without due process of law. It is the manifest
duty of the courts to vindicate those guarantees, and to Senate Select Committee on Presidential Campaign Activities v.
accomplish that it is essential that all relevant and admissible Nixon41 expounded on the nature of a legislative inquiry in aid of legislation in
evidence be produced. this wise:

In this case we must weigh the importance of the general The sufficiency of the Committee's showing of need has come to
privilege of confidentiality of Presidential communications in depend, therefore, entirely on whether the subpoenaed materials are
performance of the President's responsibilities against the critical to the performance of its legislative functions. There is a clear
inroads of such a privilege on the fair administration of criminal difference between Congress' legislative tasks and the responsibility
justice. (emphasis supplied) of a grand jury, or any institution engaged in like functions. While
fact-finding by a legislative committee is undeniably a part of its
xxx xxx xxx task, legislative judgments normally depend more on the
predicted consequences of proposed legislative actions and
their political acceptability, than on precise reconstruction of
...the allowance of the privilege to withhold evidence that
past events; Congress frequently legislates on the basis of
is demonstrably relevant in a criminal trial would cut deeply into
the guarantee of due process of law and gravely impair the conflicting information provided in its hearings. In contrast, the
basic function of the courts. A President's acknowledged need responsibility of the grand jury turns entirely on its ability to determine
for confidentiality in the communications of his office is general in whether there is probable cause to believe that certain named
nature, whereas the constitutional need for production of individuals did or did not commit specific crimes. If, for example, as in
relevant evidence in a criminal proceeding is specific and Nixon v. Sirica, one of those crimes is perjury concerning the content
central to the fair adjudication of a particular criminal case in of certain conversations, the grand jury's need for the most precise
the administration of justice. Without access to specific facts a evidence, the exact text of oral statements recorded in their original
form, is undeniable. We see no comparable need in the legislative
criminal prosecution may be totally frustrated. The President's
process, at least not in the circumstances of this case. Indeed,
broad interest in confidentiality of communication will not be
vitiated by disclosure of a limited number of conversations whatever force there might once have been in the Committee's
preliminarily shown to have some bearing on the pending criminal argument that the subpoenaed materials are necessary to its
legislative judgments has been substantially undermined by
cases.
subsequent events. (Emphasis supplied)
We conclude that when the ground for asserting privilege as to
Clearly, the need for hard facts in crafting legislation cannot be equated with
subpoenaed materials sought for use in a criminal trial is based only
on the generalized interest in confidentiality, it cannot prevail the compelling or demonstratively critical and specific need for facts which is
over the fundamental demands of due process of law in the fair so essential to the judicial power to adjudicate actual controversies. Also, the
administration of criminal justice. The generalized assertion of bare standard of "pertinency" set in Arnault cannot be lightly applied to the
instant case, which unlike Arnault involves a conflict between two (2)
separate, co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting So can you tell the Court how critical are these questions to the
claims between the Executive and the Legislative Branches is the recognized lawmaking function of the Senate. For instance, question Number 1
existence of the presumptive presidential communications privilege. This is whether the President followed up the NBN project. According to the
conceded even in the Dissenting Opinion of the Honorable Chief Justice other counsel this question has already been asked, is that correct?
Puno, which states: ATTY. AGABIN
Well, the question has been asked but it was not answered, Your
A hard look at Senate v. Ermita ought to yield the conclusion that it Honor.
bestowed a qualified presumption in favor of the Presidential CHIEF JUSTICE PUNO
communications privilege. As shown in the previous discussion, U.S. Yes. But my question is how critical is this to the lawmaking function
v. Nixon, as well as the other related Nixon cases Sirica and Senate of the Senate?
Select Committee on Presidential Campaign Activities, et al., v. ATTY. AGABIN
Nixon in the D.C. Court of Appeals, as well as subsequent cases all I believe it is critical, Your Honor.
recognize that there is a presumptive privilege in favor of CHIEF JUSTICE PUNO
Presidential communications. The Almonte case quoted U.S. v. Why?
Nixon and recognized a presumption in favor of confidentiality of ATTY. AGABIN
Presidential communications. For instance, with respect to the proposed Bill of Senator Miriam
Santiago, she would like to indorse a Bill to include Executive
Agreements had been used as a device to the circumventing the
The presumption in favor of Presidential communications puts the burden on
Procurement Law.
the respondent Senate Committees to overturn the presumption by
CHIEF JUSTICE PUNO
demonstrating their specific need for the information to be elicited by the
But the question is just following it up.
answers to the three (3) questions subject of this case, to enable them to
ATTY. AGABIN
craft legislation. Here, there is simply a generalized assertion that the
I believe that may be the initial question, Your Honor, because if we
information is pertinent to the exercise of the power to legislate and a broad
look at this problem in its factual setting as counsel for petitioner has
and non-specific reference to pending Senate bills. It is not clear what
observed, there are intimations of a bribery scandal involving high
matters relating to these bills could not be determined without the said
government officials.
information sought by the three (3) questions. As correctly pointed out by the
CHIEF JUSTICE PUNO
Honorable Justice Dante O. Tinga in his Separate Concurring Opinion:
Again, about the second question, were you dictated to prioritize this
ZTE, is that critical to the lawmaking function of the Senate? Will it
…If respondents are operating under the premise that the result to the failure of the Senate to cobble a Bill without this
president and/or her executive officials have committed question?
wrongdoings that need to be corrected or prevented from ATTY. AGABIN
recurring by remedial legislation, the answer to those three I think it is critical to lay the factual foundations for a proposed
questions will not necessarily bolster or inhibit respondents amendment to the Procurement Law, Your Honor, because the
from proceeding with such legislation. They could easily petitioner had already testified that he was offered a P200 Million
presume the worst of the president in enacting such legislation. bribe, so if he was offered a P200 Million bribe it is possible that
other government officials who had something to do with the
For sure, a factual basis for situations covered by bills is not critically needed approval of the contract would be offered the same amount of bribes.
before legislatives bodies can come up with relevant legislation unlike in the CHIEF JUSTICE PUNO
adjudication of cases by courts of law. Interestingly, during the Oral Again, that is speculative.
Argument before this Court, the counsel for respondent Committees impliedly ATTY. AGABIN
admitted that the Senate could still come up with legislations even without That is why they want to continue with the investigation, Your Honor.
petitioner answering the three (3) questions. In other words, the information CHIEF JUSTICE PUNO
being elicited is not so critical after all. Thus: How about the third question, whether the President said to go
ahead and approve the project after being told about the alleged
CHIEF JUSTICE PUNO bribe. How critical is that to the lawmaking function of the Senate?
And the question is may they craft a Bill a remedial law without The "allocation of constitutional boundaries" is a task that this
forcing petitioner Neri to answer this question? Court must perform under the Constitution. Moreover, as held in
ATTY. AGABIN a recent case, "the political question doctrine neither interposes an
Well, they can craft it, Your Honor, based on mere speculation. And obstacle to judicial determination of the rival claims. The jurisdiction
sound legislation requires that a proposed Bill should have some to delimit constitutional boundaries has been given to this Court. It
basis in fact.42 cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the applicability
The failure of the counsel for respondent Committees to pinpoint the specific of the principle in appropriate cases.46 (Emphasis supplied)
need for the information sought or how the withholding of the information
sought will hinder the accomplishment of their legislative purpose is very There, the Court further ratiocinated that "the contemplated inquiry by
evident in the above oral exchanges. Due to the failure of the respondent respondent Committee is not really ‘in aid of legislation’ because it is not
Committees to successfully discharge this burden, the presumption in favor related to a purpose within the jurisdiction of Congress, since the aim
of confidentiality of presidential communication stands. The implication of the of the investigation is to find out whether or not the relatives of the
said presumption, like any other, is to dispense with the burden of proof as to President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019,
whether the disclosure will significantly impair the President’s performance of the Anti-Graft and Corrupt Practices Act, a matter that appears more
her function. Needless to state this is assumed, by virtue of the presumption. within the province of the courts rather than of the
Legislature."47 (Emphasis and underscoring supplied)
Anent respondent Committees’ bewailing that they would have to "speculate"
regarding the questions covered by the privilege, this does not evince a The general thrust and the tenor of the three (3) questions is to trace the
compelling need for the information sought. Indeed, Senate Select alleged bribery to the Office of the President.48While it may be a worthy
Committee on Presidential Campaign Activities v. Nixon 43 held that while endeavor to investigate the potential culpability of high government officials,
fact-finding by a legislative committee is undeniably a part of its task, including the President, in a given government transaction, it is simply not a
legislative judgments normally depend more on the predicted consequences task for the Senate to perform. The role of the Legislature is to make laws,
of proposed legislative actions and their political acceptability than on a not to determine anyone’s guilt of a crime or wrongdoing. Our Constitution
precise reconstruction of past events. It added that, normally, Congress has not bestowed upon the Legislature the latter role. Just as the Judiciary
legislates on the basis of conflicting information provided in its hearings. We cannot legislate, neither can the Legislature adjudicate or prosecute.
cannot subscribe to the respondent Committees’ self-defeating proposition
that without the answers to the three (3) questions objected to as privileged, Respondent Committees claim that they are conducting an inquiry in aid of
the distinguished members of the respondent Committees cannot intelligently legislation and a "search for truth," which in respondent Committees’ view
craft legislation. appears to be equated with the search for persons responsible for
"anomalies" in government contracts.
Anent the function to curb graft and corruption, it must be stressed that
respondent Committees’ need for information in the exercise of this function No matter how noble the intentions of respondent Committees are, they
is not as compelling as in instances when the purpose of the inquiry is cannot assume the power reposed upon our prosecutorial bodies and courts.
legislative in nature. This is because curbing graft and corruption is merely The determination of who is/are liable for a crime or illegal activity, the
an oversight function of Congress.44 And if this is the primary objective of investigation of the role played by each official, the determination of who
respondent Committees in asking the three (3) questions covered by should be haled to court for prosecution and the task of coming up with
privilege, it may even contradict their claim that their purpose is legislative in conclusions and finding of facts regarding anomalies, especially the
nature and not oversight. In any event, whether or not investigating graft and determination of criminal guilt, are not functions of the Senate. Congress is
corruption is a legislative or oversight function of Congress, respondent neither a law enforcement nor a trial agency. Moreover, it bears stressing
Committees’ investigation cannot transgress bounds set by the Constitution. that no inquiry is an end in itself; it must be related to, and in furtherance of, a
legitimate task of the Congress, i.e. legislation. Investigations conducted
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled: solely to gather incriminatory evidence and "punish" those investigated are
indefensible. There is no Congressional power to expose for the sake of
exposure.49 In this regard, the pronouncement in Barenblatt v. United
States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. because, unlike in the said case, no impeachment proceeding has been
Since Congress may only investigate into the areas in which it may initiated at present. The Court is not persuaded. While it is true that no
potentially legislate or appropriate, it cannot inquire into matters impeachment proceeding has been initiated, however, complaints relating to
which are within the exclusive province of one of the other branches the NBN Project have already been filed against President Arroyo and other
of the government. Lacking the judicial power given to the Judiciary, personalities before the Office of the Ombudsman. As the Court has said
it cannot inquire into matters that are exclusively the concern of the earlier, the prosecutorial and judicial arms of government are the bodies
Judiciary. Neither can it supplant the Executive in what exclusively equipped and mandated by the Constitution and our laws to determine
belongs to the Executive. (Emphasis supplied.) whether or not the allegations of anomaly in the NBN Project are true and, if
so, who should be prosecuted and penalized for criminal conduct.
At this juncture, it is important to stress that complaints relating to the NBN
Project have already been filed against President Arroyo and other Legislative inquiries, unlike court proceedings, are not subject to the exacting
personalities before the Office of the Ombudsman. Under our Constitution, it standards of evidence essential to arrive at accurate factual findings to which
is the Ombudsman who has the duty "to investigate any act or omission of to apply the law. Hence, Section 10 of the Senate Rules of Procedure
any public official, employee, office or agency when such act or Governing Inquiries in Aid of Legislation provides that "technical rules of
omission appears to be illegal, unjust, improper, or inefficient."51 The evidence applicable to judicial proceedings which do not affect substantive
Office of the Ombudsman is the body properly equipped by the Constitution rights need not be observed by the Committee." Court rules which prohibit
and our laws to preliminarily determine whether or not the allegations of leading, hypothetical, or repetitive questions or questions calling for a
anomaly are true and who are liable therefor. The same holds true for our hearsay answer, to name a few, do not apply to a legislative inquiry. Every
courts upon which the Constitution reposes the duty to determine criminal person, from the highest public official to the most ordinary citizen, has the
guilt with finality. Indeed, the rules of procedure in the Office of the right to be presumed innocent until proven guilty in proper proceedings by a
Ombudsman and the courts are well-defined and ensure that the competent court or body.
constitutionally guaranteed rights of all persons, parties and witnesses
alike, are protected and safeguarded. IV

Should respondent Committees uncover information related to a possible Respondent Committees Committed Grave
crime in the course of their investigation, they have the constitutional duty to Abuse of Discretion in Issuing the Contempt Order
refer the matter to the appropriate agency or branch of government. Thus,
the Legislature’s need for information in an investigation of graft and Respondent Committees insist that they did not commit grave abuse of
corruption cannot be deemed compelling enough to pierce the confidentiality discretion in issuing the contempt order because (1) there is no legitimate
of information validly covered by executive privilege. As discussed above, the claim of executive privilege; (2) they did not violate the requirements laid
Legislature can still legislate on graft and corruption even without the down in Senate v. Ermita; (3) they issued the contempt order in accordance
information covered by the three (3) questions subject of the petition. with their internal Rules; (4) they did not violate the requirement under Article
VI, Section 21 of the Constitution requiring the publication of their Rules; and
Corollarily, respondent Committees justify their rejection of petitioner’s claim (5) their issuance of the contempt order is not arbitrary or precipitate.
of executive privilege on the ground that there is no privilege when the
information sought might involve a crime or illegal activity, despite the
We reaffirm our earlier ruling.
absence of an administrative or judicial determination to that effect.
Significantly, however, in Nixon v. Sirica,52 the showing required to overcome
the presumption favoring confidentiality turned, not on the nature of the The legitimacy of the claim of executive privilege having been fully discussed
presidential conduct that the subpoenaed material might reveal, but, in the preceding pages, we see no reason to discuss it once again.
instead, on the nature and appropriateness of the function in the
performance of which the material was sought, and the degree to which Respondent Committees’ second argument rests on the view that the ruling
the material was necessary to its fulfillment. in Senate v. Ermita, requiring invitations or subpoenas to contain the
"possible needed statute which prompted the need for the inquiry" along with
Respondent Committees assert that Senate Select Committee on the "usual indication of the subject of inquiry and the questions relative to and
Presidential Campaign Activities v. Nixon does not apply to the case at bar
in furtherance thereof" is not provided for by the Constitution and is merely debate about the merits of proceeding with the
an obiter dictum. investigation.(Emphasis supplied)

On the contrary, the Court sees the rationale and necessity of compliance Clearly, petitioner’s request to be furnished an advance copy of questions is
with these requirements. a reasonable demand that should have been granted by respondent
Committees.
An unconstrained congressional investigative power, like an unchecked
Executive, generates its own abuses. Consequently, claims that the Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007
investigative power of Congress has been abused (or has the potential for made no specific reference to any pending Senate bill. It did not also inform
abuse) have been raised many times.53 Constant exposure to congressional petitioner of the questions to be asked. As it were, the subpoena merely
subpoena takes its toll on the ability of the Executive to function effectively. commanded him to "testify on what he knows relative to the subject matter
The requirements set forth in Senate v. Ermita are modest mechanisms that under inquiry."
would not unduly limit Congress’ power. The legislative inquiry must be
confined to permissible areas and thus, prevent the "roving commissions" Anent the third argument, respondent Committees contend that their Rules of
referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses Procedure Governing Inquiries in Aid of Legislation (the "Rules") are beyond
have their constitutional right to due process. They should be adequately the reach of this Court. While it is true that this Court must refrain from
informed what matters are to be covered by the inquiry. It will also allow them reviewing the internal processes of Congress, as a co-equal branch of
to prepare the pertinent information and documents. To our mind, these government, however, when a constitutional requirement exists, the Court
requirements concede too little political costs or burdens on the part of has the duty to look into Congress’ compliance therewith. We cannot turn a
Congress when viewed vis-à-vis the immensity of its power of inquiry. The blind eye to possible violations of the Constitution simply out of courtesy. In
logic of these requirements is well articulated in the study conducted by this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening,
William P. Marshall,55 to wit: thus:

A second concern that might be addressed is that the current system "Cases both here and abroad, in varying forms of expression, all
allows committees to continually investigate the Executive without deny to the courts the power to inquire into allegations that, in
constraint. One process solution addressing this concern is to enacting a law, a House of Congress failed to comply with its own
require each investigation be tied to a clearly stated purpose. At rules, in the absence of showing that there was a violation of a
present, the charters of some congressional committees are so constitutional provision or the rights of private individuals.
broad that virtually any matter involving the Executive can be
construed to fall within their province. Accordingly, investigations can
United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The
proceed without articulation of specific need or purpose. A
Constitution empowers each House to determine its rules of
requirement for a more precise charge in order to begin an inquiry proceedings. It may not by its rules ignore constitutional
should immediately work to limit the initial scope of the investigation restraints or violate fundamental rights, and there should be a
and should also serve to contain the investigation once it is reasonable relation between the mode or method of proceeding
instituted. Additionally, to the extent clear statements of rules established by the rule and the result which is sought to be
cause legislatures to pause and seriously consider the attained."
constitutional implications of proposed courses of action in
other areas, they would serve that goal in the context of
congressional investigations as well. In the present case, the Court’s exercise of its power of judicial review is
warranted because there appears to be a clear abuse of the power of
contempt on the part of respondent Committees. Section 18 of the Rules
The key to this reform is in its details. A system that allows a
provides that:
standing committee to simply articulate its reasons to
investigate pro forma does no more than imposes minimal
drafting burdens. Rather, the system must be designed in a "The Committee, by a vote of majority of all its members, may
manner that imposes actual burdens on the committee to punish for contempt any witness before it who disobey any order of
articulate its need for investigation and allows for meaningful the Committee or refuses to be sworn or to testify or to answer
proper questions by the Committee or any of its through a majority vote in a proceeding in which the matter has been fully
members." (Emphasis supplied) deliberated upon. There is a greater measure of protection for the witness
when the concerns and objections of the members are fully articulated in
In the assailed Decision, we said that there is a cloud of doubt as to the such proceeding. We do not believe that respondent Committees have the
validity of the contempt order because during the deliberation of the three (3) discretion to set aside their rules anytime they wish. This is especially true
respondent Committees, only seven (7) Senators were present. This number here where what is involved is the contempt power. It must be stressed that
could hardly fulfill the majority requirement needed by respondent Committee the Rules are not promulgated for their benefit. More than anybody else, it is
on Accountability of Public Officers and Investigations which has a the witness who has the highest stake in the proper observance of the Rules.
membership of seventeen (17) Senators and respondent Committee on
National Defense and Security which has a membership of eighteen (18) Having touched the subject of the Rules, we now proceed to respondent
Senators. With respect to respondent Committee on Trade and Committees’ fourth argument. Respondent Committees argue that the
Commerce which has a membership of nine (9) Senators, only three (3) Senate does not have to publish its Rules because the same was published
members were present.57 These facts prompted us to quote in the Decision in 1995 and in 2006. Further, they claim that the Senate is a continuing body;
the exchanges between Senators Alan Peter Cayetano and Aquilino thus, it is not required to republish the Rules, unless the same is repealed or
Pimentel, Jr. whereby the former raised the issue of lack of the required amended.
majority to deliberate and vote on the contempt order.
On the nature of the Senate as a "continuing body," this Court sees fit to
When asked about such voting during the March 4, 2008 hearing before this issue a clarification. Certainly, there is no debate that the Senate as an
Court, Senator Francis Pangilinan stated that any defect in the committee institution is "continuing", as it is not dissolved as an entity with each
voting had been cured because two-thirds of the Senators effectively signed national election or change in the composition of its members. However, in
for the Senate in plenary session.58 the conduct of its day-to-day business the Senate of each Congress acts
separately and independently of the Senate of the Congress before it. The
Obviously the deliberation of the respondent Committees that led to the Rules of the Senate itself confirms this when it states:
issuance of the contempt order is flawed. Instead of being submitted to a full
debate by all the members of the respondent Committees, the contempt RULE XLIV
order was prepared and thereafter presented to the other members for UNFINISHED BUSINESS
signing. As a result, the contempt order which was issued on January 30,
2008 was not a faithful representation of the proceedings that took place on SEC. 123. Unfinished business at the end of the session shall be
said date. Records clearly show that not all of those who signed the taken up at the next session in the same status.
contempt order were present during the January 30, 2008 deliberation when
the matter was taken up. All pending matters and proceedings shall terminate upon the
expiration of one (1) Congress, but may be taken by the
Section 21, Article VI of the Constitution states that: succeeding Congress as if present for the first time. (emphasis
supplied)
The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance Undeniably from the foregoing, all pending matters and proceedings, i.e.
with its duly published rules of procedure. The rights of person unpassed bills and even legislative investigations, of the Senate of a
appearing in or affected by such inquiries shall be particular Congress are considered terminated upon the expiration of that
respected. (Emphasis supplied) Congress and it is merely optional on the Senate of the succeeding
Congress to take up such unfinished matters, not in the same status, but as
All the limitations embodied in the foregoing provision form part of the if presented for the first time. The logic and practicality of such a rule is
witness’ settled expectation. If the limitations are not observed, the witness’ readily apparent considering that the Senate of the succeeding Congress
settled expectation is shattered. Here, how could there be a majority vote (which will typically have a different composition as that of the previous
when the members in attendance are not enough to arrive at such majority? Congress) should not be bound by the acts and deliberations of the Senate
Petitioner has the right to expect that he can be cited in contempt only of which they had no part. If the Senate is a continuing body even with
respect to the conduct of its business, then pending matters will not be The language of Section 21, Article VI of the Constitution requiring that the
deemed terminated with the expiration of one Congress but will, as a matter inquiry be conducted in accordance with the duly published rules of
of course, continue into the next Congress with the same status. procedure is categorical. It is incumbent upon the Senate to publish the
rules for its legislative inquiries in each Congress or otherwise make the
This dichotomy of the continuity of the Senate as an institution and of the published rules clearly state that the same shall be effective in subsequent
opposite nature of the conduct of its business is reflected in its Rules. The Congresses or until they are amended or repealed to sufficiently put public
Rules of the Senate (i.e. the Senate’s main rules of procedure) states: on notice.

RULE LI If it was the intention of the Senate for its present rules on legislative inquiries
AMENDMENTS TO, OR REVISIONS OF, THE RULES to be effective even in the next Congress, it could have easily adopted the
same language it had used in its main rules regarding effectivity.
SEC. 136. At the start of each session in which the Senators elected
in the preceding elections shall begin their term of office, the Lest the Court be misconstrued, it should likewise be stressed that not all
President may endorse the Rules to the appropriate committee for orders issued or proceedings conducted pursuant to the subject Rules are
amendment or revision. null and void. Only those that result in violation of the rights of witnesses
should be considered null and void, considering that the rationale for the
publication is to protect the rights of witnesses as expressed in Section 21,
The Rules may also be amended by means of a motion which should
Article VI of the Constitution. Sans such violation, orders and proceedings
be presented at least one day before its consideration, and the vote
are considered valid and effective.
of the majority of the Senators present in the session shall be
required for its approval. (emphasis supplied)
Respondent Committees’ last argument is that their issuance of the contempt
RULE LII order is not precipitate or arbitrary. Taking into account the totality of
DATE OF TAKING EFFECT circumstances, we find no merit in their argument.

SEC. 137. These Rules shall take effect on the date of their adoption As we have stressed before, petitioner is not an unwilling witness, and
contrary to the assertion of respondent Committees, petitioner did not
and shall remain in force until they are amended or repealed.
assume that they no longer had any other questions for him. He repeatedly
(emphasis supplied)
manifested his willingness to attend subsequent hearings and respond to
new matters. His only request was that he be furnished a copy of the new
Section 136 of the Senate Rules quoted above takes into account the new questions in advance to enable him to adequately prepare as a resource
composition of the Senate after an election and the possibility of the person. He did not attend the November 20, 2007 hearing because
amendment or revision of the Rules at the start of each session in which the Executive Secretary Ermita requested respondent Committees to dispense
newly elected Senators shall begin their term. with his testimony on the ground of executive privilege. Note that petitioner is
an executive official under the direct control and supervision of the Chief
However, it is evident that the Senate has determined that its main rules are Executive. Why punish petitioner for contempt when he was merely directed
intended to be valid from the date of their adoption until they are amended or by his superior? Besides, save for the three (3) questions, he was very
repealed. Such language is conspicuously absent from the Rules. cooperative during the September 26, 2007 hearing.
The Rules simply state "(t)hese Rules shall take effect seven (7) days after
publication in two (2) newspapers of general circulation." 59 The latter does On the part of respondent Committees, this Court observes their haste and
not explicitly provide for the continued effectivity of such rules until they are impatience. Instead of ruling on Executive Secretary Ermita’s claim of
amended or repealed. In view of the difference in the language of the two executive privilege, they curtly dismissed it as unsatisfactory and ordered the
sets of Senate rules, it cannot be presumed that the Rules (on legislative arrest of petitioner. They could have informed petitioner of their ruling and
inquiries) would continue into the next Congress. The Senate of the next given him time to decide whether to accede or file a motion for
Congress may easily adopt different rules for its legislative inquiries which reconsideration. After all, he is not just an ordinary witness; he is a high-
come within the rule on unfinished business. ranking official in a co-equal branch of government. He is an alter ego of the
President. The same haste and impatience marked the issuance of the WHEREFORE, respondent Committees’ Motion for Reconsideration dated
contempt order, despite the absence of the majority of the members of the April 8, 2008 is hereby DENIED.
respondent Committees, and their subsequent disregard of petitioner’s
motion for reconsideration alleging the pendency of his petition SO ORDERED.
for certiorari before this Court.

On a concluding note, we are not unmindful of the fact that the Executive and
the Legislature are political branches of government. In a free and
democratic society, the interests of these branches inevitably clash, but each
must treat the other with official courtesy and respect. This Court
wholeheartedly concurs with the proposition that it is imperative for the Republic of the Philippines
continued health of our democratic institutions that we preserve the SUPREME COURT
constitutionally mandated checks and balances among the different branches Manila
of government.
EN BANC
In the present case, it is respondent Committees’ contention that their
determination on the validity of executive privilege should be binding on the G.R. No. 170516 July 16, 2008
Executive and the Courts. It is their assertion that their internal procedures
and deliberations cannot be inquired into by this Court supposedly in AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), PAMBANSANG
accordance with the principle of respect between co-equal branches of KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN ("PKSK"),
government. Interestingly, it is a courtesy that they appear to be unwilling to
ALLIANCE OF PROGRESSIVE LABOR ("APL"), VICENTE A. FABE,
extend to the Executive (on the matter of executive privilege) or this Court
ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX
(on the matter of judicial review). It moves this Court to wonder: In
respondent Committees’ paradigm of checks and balances, what are the CRUZ-ANGELES, CONG. LORENZO R. TANADA III, CONG. MARIO
checks to the Legislature’s all-encompassing, awesome power of JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA
investigation? It is a power, like any other, that is susceptible to grave abuse. THERESIA HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL
JOEL J. VILLANUEVA, Petitioners,
While this Court finds laudable the respondent Committees’ well-intentioned
vs.
efforts to ferret out corruption, even in the highest echelons of government, THOMAS G. AQUINO, in his capacity as Undersecretary of the
such lofty intentions do not validate or accord to Congress powers denied to Department of Trade and Industry (DTI) and Chairman and Chief
it by the Constitution and granted instead to the other branches of Delegate of the Philippine Coordinating Committee (PCC) for the
government. Japan-Philippines Economic Partnership Agreement, EDSEL T.
CUSTODIO, in his capacity as Undersecretary of the Department of
There is no question that any story of government malfeasance deserves an Foreign Affairs (DFA) and Co-Chair of the PCC for the JPEPA,
inquiry into its veracity. As respondent Committees contend, this is founded EDGARDO ABON, in his capacity as Chairman of the Tariff
on the constitutional command of transparency and public accountability. The Commission and lead negotiator for Competition Policy and
recent clamor for a "search for truth" by the general public, the religious Emergency Measures of the JPEPA, MARGARITA SONGCO, in her
community and the academe is an indication of a concerned citizenry, a capacity as Assistant Director-General of the National Economic
nation that demands an accounting of an entrusted power. However, the best Development Authority (NEDA) and lead negotiator for Trade in
venue for this noble undertaking is not in the political branches of Services and Cooperation of the JPEPA, MALOU MONTERO, in her
government. The customary partisanship and the absence of generally capacity as Foreign Service Officer I, Office of the Undersecretary
accepted rules on evidence are too great an obstacle in arriving at the truth for International Economic Relations of the DFA and lead negotiator
or achieving justice that meets the test of the constitutional guarantee of due for the General and Final Provisions of the JPEPA, ERLINDA
process of law. We believe the people deserve a more exacting "search for ARCELLANA, in her capacity as Director of the Board of
truth" than the process here in question, if that is its objective. Investments and lead negotiator for Trade in Goods (General Rules)
of the JPEPA, RAQUEL ECHAGUE, in her capacity as lead In the course of its inquiry, the House Committee requested herein
negotiator for Rules of Origin of the JPEPA, GALLANT SORIANO, in respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman of
his official capacity as Deputy Commissioner of the Bureau of the Philippine Coordinating Committee created under Executive Order
Customs and lead negotiator for Customs Procedures and No. 213 ("Creation of A Philippine Coordinating Committee to Study the
Paperless Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL, in Feasibility of the Japan-Philippines Economic Partnership
her capacity as Director of the Bureau of Local Employment of the Agreement")1 to study and negotiate the proposed JPEPA, and to furnish
Department of Labor and Employment (DOLE) and lead negotiator the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino
for Movement of Natural Persons of the JPEPA, PASCUAL DE did not heed the request, however.
GUZMAN, in his capacity as Director of the Board of Investments
and lead negotiator for Investment of the JPEPA, JESUS Congressman Aguja later requested for the same document, but Usec.
MOTOOMULL, in his capacity as Director for the Bureau of Product Aquino, by letter of November 2, 2005, replied that the Congressman
Standards of the DTI and lead negotiator for Mutual Recognition of shall be provided with a copy thereof "once the negotiations are
the JPEPA, LOUIE CALVARIO, in his capacity as lead negotiator for completed and as soon as a thorough legal review of the proposed
Intellectual Property of the JPEPA, ELMER H. DORADO, in his agreement has been conducted."
capacity as Officer-in-Charge of the Government Procurement
Policy Board Technical Support Office, the government agency that In a separate move, the House Committee, through Congressman
is leading the negotiations on Government Procurement of the Herminio G. Teves, requested Executive Secretary Eduardo Ermita to
JPEPA, RICARDO V. PARAS, in his capacity as Chief State Counsel furnish it with "all documents on the subject including the latest draft of
of the Department of Justice (DOJ) and lead negotiator for Dispute the proposed agreement, the requests and offers etc."2 Acting on the
Avoidance and Settlement of the JPEPA, ADONIS SULIT, in his request, Secretary Ermita, by letter of June 23, 2005, wrote
capacity as lead negotiator for the General and Final Provisions of Congressman Teves as follows:
the JPEPA, EDUARDO R. ERMITA, in his capacity as Executive
Secretary, and ALBERTO ROMULO, in his capacity as Secretary of
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of]
the DFA,* Respondents.
F[oreign] A[ffairs] explains that the Committee’s request to be
furnished all documents on the JPEPA may be difficult to
DECISION accomplish at this time, since the proposed Agreement has been a
work in progress for about three years. A copy of the draft JPEPA will
CARPIO MORALES, J.: however be forwarded to the Committee as soon as the text thereof is
settled and complete. (Emphasis supplied)
Petitioners – non-government organizations, Congresspersons, citizens
and taxpayers – seek via the present petition for mandamus and Congressman Aguja also requested NEDA Director-General Romulo Neri
prohibition to obtain from respondents the full text of the Japan- and Tariff Commission Chairman Edgardo Abon, by letter of July 1, 2005,
Philippines Economic Partnership Agreement (JPEPA) including the for copies of the latest text of the JPEPA.
Philippine and Japanese offers submitted during the negotiation process Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff
and all pertinent attachments and annexes thereto. Commission does not have a copy of the documents being requested,
albeit he was certain that Usec. Aquino would provide the Congressman
Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja with a copy "once the negotiation is completed." And by letter of July 18,
filed on January 25, 2005 House Resolution No. 551 calling for an inquiry 2005, NEDA Assistant Director-General Margarita R. Songco informed
into the bilateral trade agreements then being negotiated by the the Congressman that his request addressed to Director-General Neri
Philippine government, particularly the JPEPA. The Resolution became had been forwarded to Usec. Aquino who would be "in the best position
the basis of an inquiry subsequently conducted by the House Special to respond" to the request.
Committee on Globalization (the House Committee) into the negotiations
of the JPEPA.
In its third hearing conducted on August 31, 2005, the House Committee definitive resolution of the substantive issues raised," however,
resolved to issue a subpoena for the most recent draft of the JPEPA, but respondents consider it sufficient to cite a portion of the ruling in Pimentel
the same was not pursued because by Committee Chairman v. Office of Executive Secretary8 which emphasizes the need for a
Congressman Teves’ information, then House Speaker Jose de Venecia "personal stake in the outcome of the controversy" on questions of
had requested him to hold in abeyance the issuance of the subpoena standing.
until the President gives her consent to the disclosure of the documents. 3
In a petition anchored upon the right of the people to information on
Amid speculations that the JPEPA might be signed by the Philippine matters of public concern, which is a public right by its very nature,
government within December 2005, the present petition was filed on petitioners need not show that they have any legal or special interest in
December 9, 2005.4 The agreement was to be later signed on September the result, it being sufficient to show that they are citizens and, therefore,
9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime part of the general public which possesses the right. 9 As the present
Minister Junichiro Koizumi in Helsinki, Finland, following which the petition is anchored on the right to information and petitioners are all
President endorsed it to the Senate for its concurrence pursuant to Article suing in their capacity as citizens and groups of citizens including
VII, Section 21 of the Constitution. To date, the JPEPA is still being petitioners-members of the House of Representatives who additionally
deliberated upon by the Senate. are suing in their capacity as such, the standing of petitioners to file the
present suit is grounded in jurisprudence.
The JPEPA, which will be the first bilateral free trade agreement to be
entered into by the Philippines with another country in the event the Mootness
Senate grants its consent to it, covers a broad range of topics which
respondents enumerate as follows: trade in goods, rules of origin, Considering, however, that "[t]he principal relief petitioners are praying for
customs procedures, paperless trading, trade in services, investment, is the disclosure of the contents of the JPEPA prior to its finalization
intellectual property rights, government procurement, movement of between the two States parties,"10 public disclosure of the text of the
natural persons, cooperation, competition policy, mutual recognition, JPEPA after its signing by the President, during the pendency of the
dispute avoidance and settlement, improvement of the business present petition, has been largely rendered moot and academic.
environment, and general and final provisions. 5
With the Senate deliberations on the JPEPA still pending, the agreement
While the final text of the JPEPA has now been made accessible to the as it now stands cannot yet be considered as final and binding between
public since September 11, 2006,6respondents do not dispute that, at the the two States. Article 164 of the JPEPA itself provides that the
time the petition was filed up to the filing of petitioners’ Reply – when the agreement does not take effect immediately upon the signing thereof. For
JPEPA was still being negotiated – the initial drafts thereof were kept it must still go through the procedures required by the laws of each
from public view. country for its entry into force, viz:

Before delving on the substantive grounds relied upon by petitioners in Article 164
support of the petition, the Court finds it necessary to first resolve some Entry into Force
material procedural issues.
This Agreement shall enter into force on the thirtieth day after the date on
Standing which the Governments of the Parties exchange diplomatic notes
informing each other that their respective legal procedures necessary
For a petition for mandamus such as the one at bar to be given due for entry into force of this Agreement have been completed. It shall
course, it must be instituted by a party aggrieved by the alleged inaction remain in force unless terminated as provided for in Article
of any tribunal, corporation, board or person which unlawfully excludes 165.11 (Emphasis supplied)
said party from the enjoyment of a legal right. 7 Respondents deny that
petitioners have such standing to sue. "[I]n the interest of a speedy and
President Arroyo’s endorsement of the JPEPA to the Senate for To be covered by the right to information, the information sought must
concurrence is part of the legal procedures which must be met prior to meet the threshold requirement that it be a matter of public concern.
the agreement’s entry into force. Apropos is the teaching of Legaspi v. Civil Service Commission:

The text of the JPEPA having then been made accessible to the public, In determining whether or not a particular information is of public concern
the petition has become moot and academic to the extent that it seeks there is no rigid test which can be applied. ‘Public concern’ like ‘public
the disclosure of the "full text" thereof. interest’ is a term that eludes exact definition. Both terms embrace a
broad spectrum of subjects which the public may want to know, either
The petition is not entirely moot, however, because petitioners seek to because these directly affect their lives, or simply because such matters
obtain, not merely the text of the JPEPA, but also the Philippine and naturally arouse the interest of an ordinary citizen. In the final analysis, it
Japanese offers in the course of the negotiations.12 is for the courts to determine on a case by case basis whether the matter
at issue is of interest or importance, as it relates to or affects the
A discussion of the substantive issues, insofar as they impinge on public.16(Underscoring supplied)
petitioners’ demand for access to the Philippine and Japanese offers, is
thus in order. From the nature of the JPEPA as an international trade agreement, it is
evident that the Philippine and Japanese offers submitted during the
Grounds relied upon by petitioners negotiations towards its execution are matters of public concern. This,
respondents do not dispute. They only claim that diplomatic negotiations
are covered by the doctrine of executive privilege, thus constituting an
Petitioners assert, first, that the refusal of the government to disclose the
exception to the right to information and the policy of full public
documents bearing on the JPEPA negotiations violates their right to
disclosure.
information on matters of public concern13 and contravenes other
constitutional provisions on transparency, such as that on the policy of full
public disclosure of all transactions involving public interest. 14 Second, Respondents’ claim of privilege
they contend that non-disclosure of the same documents undermines
their right to effective and reasonable participation in all levels of social, It is well-established in jurisprudence that neither the right to information
political, and economic decision-making.15 Lastly, they proffer that nor the policy of full public disclosure is absolute, there being matters
divulging the contents of the JPEPA only after the agreement has been which, albeit of public concern or public interest, are recognized as
concluded will effectively make the Senate into a mere rubber stamp of privileged in nature. The types of information which may be considered
the Executive, in violation of the principle of separation of powers. privileged have been elucidated in Almonte v. Vasquez,17Chavez v.
PCGG,18 Chavez v. Public Estate’s Authority,19 and most recently
Significantly, the grounds relied upon by petitioners for the disclosure of in Senate v. Ermita20 where the Court reaffirmed the validity of the
the latest text of the JPEPA are, except for the last, the same as those doctrine of executive privilege in this jurisdiction and dwelt on its scope.
cited for the disclosure of the Philippine and Japanese offers.
Whether a claim of executive privilege is valid depends on the ground
The first two grounds relied upon by petitioners which bear on the merits invoked to justify it and the context in which it is made.21 In the present
of respondents’ claim of privilege shall be discussed. The last, being case, the ground for respondents’ claim of privilege is set forth in
purely speculatory given that the Senate is still deliberating on the their Comment, viz:
JPEPA, shall not.
x x x The categories of information that may be considered privileged
The JPEPA is a matter of public concern includes matters of diplomatic character and under negotiation and
review. In this case, the privileged character of the diplomatic
negotiations has been categorically invoked and clearly explained by
respondents particularly respondent DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is The nature of diplomacy requires centralization of authority and
subject to negotiations and legal review by the parties fall under the expedition of decision which are inherent in executive
exceptions to the right of access to information on matters of public action. Another essential characteristic of diplomacy is its
concern and policy of public disclosure. They come within the coverage confidential nature. Although much has been said about "open" and
of executive privilege. At the time when the Committee was requesting for "secret" diplomacy, with disparagement of the latter, Secretaries of State
copies of such documents, the negotiations were ongoing as they are still Hughes and Stimson have clearly analyzed and justified the practice. In
now and the text of the proposed JPEPA is still uncertain and subject to the words of Mr. Stimson:
change. Considering the status and nature of such documents then and
now, these are evidently covered by executive privilege consistent with "A complicated negotiation . . . cannot be carried through without
existing legal provisions and settled jurisprudence. many, many private talks and discussion, man to man; many
tentative suggestions and proposals. Delegates from other
Practical and strategic considerations likewise counsel against the countries come and tell you in confidence of their troubles at home
disclosure of the "rolling texts" which may undergo radical change or and of their differences with other countries and with other
portions of which may be totally abandoned. Furthermore, delegates; they tell you of what they would do under certain
the negotiations of the representatives of the Philippines as well as circumstances and would not do under other circumstances. . . If
of Japan must be allowed to explore alternatives in the course of the these reports . . . should become public . . . who would ever
negotiations in the same manner as judicial deliberations and trust American Delegations in another conference? (United States
working drafts of opinions are accorded strict Department of State, Press Releases, June 7, 1930, pp. 282-284.)."
confidentiality.22 (Emphasis and underscoring supplied)
xxxx
The ground relied upon by respondents is thus not simply that the
information sought involves a diplomatic matter, but that it pertains There is frequent criticism of the secrecy in which negotiation with
to diplomatic negotiations then in progress. foreign powers on nearly all subjects is concerned. This, it is
claimed, is incompatible with the substance of democracy. As
Privileged character of diplomatic negotiations expressed by one writer, "It can be said that there is no more rigid system
of silence anywhere in the world." (E.J. Young, Looking Behind the
The privileged character of diplomatic negotiations has been recognized Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his
in this jurisdiction. In discussing valid limitations on the right to efforts for the conclusion of the World War declared that we must have
information, the Court in Chavez v. PCGG held that "information on inter- "open covenants, openly arrived at." He quickly abandoned his thought.
government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of No one who has studied the question believes that such a method of
national interest."23 Even earlier, the same privilege was upheld publicity is possible. In the moment that negotiations are started,
in People’s Movement for Press Freedom (PMPF) v. pressure groups attempt to "muscle in." An ill-timed speech by one
Manglapus24 wherein the Court discussed the reasons for the privilege in of the parties or a frank declaration of the concession which are
more precise terms. exacted or offered on both sides would quickly lead to widespread
propaganda to block the negotiations. After a treaty has been
In PMPF v. Manglapus, the therein petitioners were seeking information drafted and its terms are fully published, there is ample opportunity
from the President’s representatives on the state of the then on-going for discussion before it is approved. (The New American Government
negotiations of the RP-US Military Bases Agreement.25 The Court denied and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and
the petition, stressing that "secrecy of negotiations with foreign underscoring supplied)
countries is not violative of the constitutional provisions of freedom of
speech or of the press nor of the freedom of access to information."
The Resolution went on to state, thus:
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. them little option. It would be a brave, or foolish, Arab leader who
Curtiss-Wright Export Corp.26 that the President is the sole organ of the expressed publicly a willingness for peace with Israel that did not involve
nation in its negotiations with foreign countries, viz: the return of the entire West Bank, or Israeli leader who stated publicly a
willingness to remove Israel's existing settlements from Judea and
"x x x In this vast external realm, with its important, complicated, delicate Samaria in return for peace.28 (Emphasis supplied)
and manifold problems, the President alone has the power to speak or
listen as a representative of the nation. He makes treaties with the advice Indeed, by hampering the ability of our representatives to compromise,
and consent of the Senate; but he alone negotiates. Into the field of we may be jeopardizing higher national goals for the sake of securing
negotiation the Senate cannot intrude; and Congress itself is powerless less critical ones.
to invade it. As Marshall said in his great argument of March 7, 1800, in
the House of Representatives, "The President is the sole organ of the Diplomatic negotiations, therefore, are recognized as privileged in this
nation in its external relations, and its sole representative with jurisdiction, the JPEPA negotiations constituting no exception. It bears
foreign nations." Annals, 6th Cong., col. 613. . . (Emphasis supplied; emphasis, however, that such privilege is only presumptive. For
underscoring in the original) as Senate v. Ermita holds, recognizing a type of information as privileged
does not mean that it will be considered privileged in all instances. Only
Applying the principles adopted in PMPF v. Manglapus, it is clear that after a consideration of the context in which the claim is made may it be
while the final text of the JPEPA may not be kept perpetually confidential determined if there is a public interest that calls for the disclosure of the
– since there should be "ample opportunity for discussion before [a treaty] desired information, strong enough to overcome its traditionally privileged
is approved" – the offers exchanged by the parties during the status.
negotiations continue to be privileged even after the JPEPA is published.
It is reasonable to conclude that the Japanese representatives submitted Whether petitioners have established the presence of such a public
their offers with the understanding that "historic confidentiality"27 would interest shall be discussed later. For now, the Court shall first pass upon
govern the same. Disclosing these offers could impair the ability of the the arguments raised by petitioners against the application of PMPF v.
Philippines to deal not only with Japan but with other foreign Manglapus to the present case.
governments in future negotiations.
Arguments proffered by petitioners against the application of PMPF
A ruling that Philippine offers in treaty negotiations should now be open to v. Manglapus
public scrutiny would discourage future Philippine representatives from
frankly expressing their views during negotiations. While, on first Petitioners argue that PMPF v. Manglapus cannot be applied in toto to
impression, it appears wise to deter Philippine representatives from the present case, there being substantial factual distinctions between the
entering into compromises, it bears noting that treaty negotiations, or any two.
negotiation for that matter, normally involve a process of quid pro quo,
and oftentimes negotiators have to be willing to grant concessions
To petitioners, the first and most fundamental distinction lies in the nature
in an area of lesser importance in order to obtain more favorable
of the treaty involved. They stress that PMPF v. Manglapus involved the
terms in an area of greater national interest. Apropos are the following
Military Bases Agreement which necessarily pertained to matters
observations of Benjamin S. Duval, Jr.:
affecting national security; whereas the present case involves an
economic treaty that seeks to regulate trade and commerce between the
x x x [T]hose involved in the practice of negotiations appear to be in Philippines and Japan, matters which, unlike those covered by the
agreement that publicity leads to "grandstanding," tends to freeze Military Bases Agreement, are not so vital to national security to disallow
negotiating positions, and inhibits the give-and-take essential to their disclosure.
successful negotiation. As Sissela Bok points out, if "negotiators have
more to gain from being approved by their own sides than by making a
Petitioners’ argument betrays a faulty assumption that information, to be
reasoned agreement with competitors or adversaries, then they are
considered privileged, must involve national security. The recognition
inclined to 'play to the gallery . . .'' In fact, the public reaction may leave
in Senate v. Ermita29 that executive privilege has encompassed claims of discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck &
varying kinds, such that it may even be more accurate to speak of Co,34 deliberative process covers documents reflecting advisory opinions,
"executive privileges," cautions against such generalization. recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated. Notably, the
While there certainly are privileges grounded on the necessity of privileged status of such documents rests, not on the need to protect
safeguarding national security such as those involving military secrets, national security but, on the "obvious realization that officials will not
not all are founded thereon. One example is the "informer’s privilege," or communicate candidly among themselves if each remark is a potential
the privilege of the Government not to disclose the identity of a person or item of discovery and front page news," the objective of the privilege
persons who furnish information of violations of law to officers charged being to enhance the quality of agency
with the enforcement of that law.30 The suspect involved need not be so decisionshttp://web2.westlaw.com/find/default.wl?rs=WLW7.07&serialnu
notorious as to be a threat to national security for this privilege to apply in m=1975129772&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-
any given instance. Otherwise, the privilege would be inapplicable in all 1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16-
but the most high-profile cases, in which case not only would this be C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIGeneral
contrary to long-standing practice. It would also be highly prejudicial to Subscription. 35
law enforcement efforts in general.
The diplomatic negotiations privilege bears a close resemblance to the
Also illustrative is the privilege accorded to presidential communications, deliberative process and presidential communications privilege. It may be
which are presumed privileged without distinguishing between those readily perceived that the rationale for the confidential character of
which involve matters of national security and those which do not, the diplomatic negotiations, deliberative process, and presidential
rationale for the privilege being that communications is similar, if not identical.

x x x [a] frank exchange of exploratory ideas and assessments, free The earlier discussion on PMPF v. Manglapus36 shows that the privilege
from the glare of publicity and pressure by interested parties, is essential for diplomatic negotiations is meant to encourage a frank exchange of
to protect the independence of decision-making of those tasked to exploratory ideas between the negotiating parties by shielding such
exercise Presidential, Legislative and Judicial power. x x x31 (Emphasis negotiations from public view. Similar to the privilege for presidential
supplied) communications, the diplomatic negotiations privilege seeks, through the
same means, to protect the independence in decision-making of the
In the same way that the privilege for judicial deliberations does not President, particularly in its capacity as "the sole organ of the nation in its
depend on the nature of the case deliberated upon, so presidential external relations, and its sole representative with foreign nations." And,
communications are privileged whether they involve matters of national as with the deliberative process privilege, the privilege accorded to
security. diplomatic negotiations arises, not on account of the content of the
information per se, but because the information is part of a process of
deliberation which, in pursuit of the public interest, must be presumed
It bears emphasis, however, that the privilege accorded to presidential
confidential.
communications is not absolute, one significant qualification being that
"the Executive cannot, any more than the other branches of government,
invoke a general confidentiality privilege to shield its officials and The decision of the U.S. District Court, District of Columbia in Fulbright &
employees from investigations by the proper governmental institutions Jaworski v. Department of the Treasury 37enlightens on the close relation
into possible criminal wrongdoing." 32 This qualification applies whether between diplomatic negotiations and deliberative process privileges. The
the privilege is being invoked in the context of a judicial trial or a plaintiffs in that case sought access to notes taken by a member of the
congressional investigation conducted in aid of legislation. 33 U.S. negotiating team during the U.S.-French tax treatynegotiations.
Among the points noted therein were the issues to be discussed,
positions which the French and U.S. teams took on some points, the draft
Closely related to the "presidential communications" privilege is the
language agreed on, and articles which needed to be amended.
deliberative process privilege recognized in the United States. As
Upholding the confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true apply the same would help illumine this Court’s own reasons for deciding
example of a deliberative process. Much give-and-take must occur the present case along the lines of Fulbright.
for the countries to reach an accord. A description of the negotiations
at any one point would not provide an onlooker a summary of the In both Fulbright and CIEL, the U.S. government cited a statutory basis
discussions which could later be relied on as law. It would not be for withholding information, namely, Exemption 5 of the Freedom of
"working law" as the points discussed and positions agreed on would be Information Act (FOIA).39 In order to qualify for protection under
subject to change at any date until the treaty was signed by the President Exemption 5, a document must satisfy two conditions: (1) it must be
and ratified by the Senate. either inter-agency or intra-agency in nature, and (2) it must be
both pre-decisional and part of the agency's deliberative or decision-
The policies behind the deliberative process privilege support non- making process.40
disclosure. Much harm could accrue to the negotiations process if
these notes were revealed. Exposure of the pre-agreement positions Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of
of the French negotiators might well offend foreign context" between the two cases, based his decision on what he perceived
governments and would lead to less candor by the U. S. in to be a significant distinction: he found the negotiator’s notes that were
recording the events of the negotiations process. As several months sought in Fulbright to be "clearly internal," whereas the documents being
pass in between negotiations, this lack of record could hinder readily the sought in CIEL were those produced by or exchanged with an outside
U. S. negotiating team. Further disclosure would reveal prematurely party, i.e. Chile. The documents subject of Fulbright being clearly internal
adopted policies. If these policies should be changed, public confusion in character, the question of disclosure therein turned not on the
would result easily. threshold requirement of Exemption 5 that the document be inter-agency,
but on whether the documents were part of the agency's pre-decisional
Finally, releasing these snapshot views of the negotiations would be deliberative process. On this basis, Judge Friedman found that "Judge
comparable to releasing drafts of the treaty, particularly when the Green's discussion [in Fulbright] of the harm that could result from
notes state the tentative provisions and language agreed on. As disclosure therefore is irrelevant, since the documents at issue
drafts of regulations typically are protected by the deliberative [in CIEL] are not inter-agency, and the Court does not reach the
process privilege, Arthur Andersen & Co. v. Internal Revenue Service, question of deliberative process." (Emphasis supplied)
C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be
accorded the same protection. (Emphasis and underscoring supplied) In fine, Fulbright was not overturned. The court in CIEL merely found the
same to be irrelevant in light of its distinct factual setting. Whether this
Clearly, the privilege accorded to diplomatic negotiations follows as a conclusion was valid – a question on which this Court would not pass –
logical consequence from the privileged character of the deliberative the ruling in Fulbright that "[n]egotiations between two countries to draft a
process. treaty represent a true example of a deliberative process" was left
standing, since the CIEL court explicitly stated that it did not reach the
The Court is not unaware that in Center for International Environmental question of deliberative process.
Law (CIEL), et al. v. Office of U.S. Trade Representative38 – where the
plaintiffs sought information relating to the just-completed negotiation of a Going back to the present case, the Court recognizes that the information
United States-Chile Free Trade Agreement – the same district court, this sought by petitioners includes documents produced and communicated
time under Judge Friedman, consciously refrained from applying the by a party external to the Philippine government, namely, the Japanese
doctrine in Fulbright and ordered the disclosure of the information being representatives in the JPEPA negotiations, and to that extent this case is
sought. closer to the factual circumstances of CIELthan those of Fulbright.

Since the factual milieu in CIEL seemed to call for the straight application Nonetheless, for reasons which shall be discussed shortly, this Court
of the doctrine in Fulbright, a discussion of why the district court did not echoes the principle articulated in Fulbrightthat the public policy
underlying the deliberative process privilege requires that diplomatic
negotiations should also be accorded privileged status, even if the The privileged character accorded to diplomatic negotiations does
documents subject of the present case cannot be described as purely not ipso facto lose all force and effect simply because the same
internal in character. privilege is now being claimed under different circumstances.
The probability of the claim succeeding in the new context might differ,
It need not be stressed that in CIEL, the court ordered the disclosure of but to say that the privilege, as such, has no validity at all in that context
information based on its finding that the first requirement of FOIA is another matter altogether.
Exemption 5 – that the documents be inter-agency – was not met. In
determining whether the government may validly refuse disclosure of the The Court’s statement in Senate v. Ermita that "presidential refusals to
exchanges between the U.S. and Chile, it necessarily had to deal with furnish information may be actuated by any of at least three distinct kinds
this requirement, it being laid down by a statute binding on them. of considerations [state secrets privilege, informer’s privilege, and a
generic privilege for internal deliberations], and may be asserted, with
In this jurisdiction, however, there is no counterpart of the FOIA, nor is differing degrees of success, in the context of either judicial or
there any statutory requirement similar to FOIA Exemption 5 in particular. legislative investigations,"41 implies that a privilege, once recognized, may
Hence, Philippine courts, when assessing a claim of privilege for be invoked under different procedural settings. That this principle holds
diplomatic negotiations, are more free to focus directly on the issue of true particularly with respect to diplomatic negotiations may be inferred
whether the privilege being claimed is indeed supported by public policy, from PMPF v. Manglapus itself, where the Court held that it is the
without having to consider – as the CIEL court did – if these negotiations President alone who negotiates treaties, and not even the Senate or the
fulfill a formal requirement of being "inter-agency." Important though that House of Representatives, unless asked, may intrude upon that process.
requirement may be in the context of domestic negotiations, it need not
be accorded the same significance when dealing with international Clearly, the privilege for diplomatic negotiations may be invoked not only
negotiations. against citizens’ demands for information, but also in the context of
legislative investigations.
There being a public policy supporting a privilege for diplomatic
negotiations for the reasons explained above, the Court sees no reason Hence, the recognition granted in PMPF v. Manglapus to the privileged
to modify, much less abandon, the doctrine in PMPF v. Manglapus. character of diplomatic negotiations cannot be considered irrelevant in
resolving the present case, the contextual differences between the two
A second point petitioners proffer in their attempt to differentiate PMPF v. cases notwithstanding.
Manglapus from the present case is the fact that the petitioners therein
consisted entirely of members of the mass media, while petitioners in the As third and last point raised against the application of PMPF v.
present case include members of the House of Representatives who Manglapus in this case, petitioners proffer that "the socio-political and
invoke their right to information not just as citizens but as members of historical contexts of the two cases are worlds apart." They claim that the
Congress. constitutional traditions and concepts prevailing at the time PMPF v.
Manglapus came about, particularly the school of thought that the
Petitioners thus conclude that the present case involves the right of requirements of foreign policy and the ideals of transparency were
members of Congress to demand information on negotiations of incompatible with each other or the "incompatibility hypothesis," while
international trade agreements from the Executive branch, a matter which valid when international relations were still governed by power, politics
was not raised in PMPF v. Manglapus. and wars, are no longer so in this age of international cooperation. 42

While indeed the petitioners in PMPF v. Manglapus consisted only of Without delving into petitioners’ assertions respecting the "incompatibility
members of the mass media, it would be incorrect to claim that the hypothesis," the Court notes that the ruling in PMPF v. Manglapus is
doctrine laid down therein has no bearing on a controversy such as the grounded more on the nature of treaty negotiations as such than on a
present, where the demand for information has come from members of particular socio-political school of thought. If petitioners are suggesting
Congress, not only from private citizens. that the nature of treaty negotiations have so changed that "[a]n ill-timed
speech by one of the parties or a frank declaration of the concession It being established that diplomatic negotiations enjoy a presumptive
which are exacted or offered on both sides" no longer "lead[s] to privilege against disclosure, even against the demands of members of
widespread propaganda to block the negotiations," or that parties in Congress for information, the Court shall now determine whether
treaty negotiations no longer expect their communications to be governed petitioners have shown the existence of a public interest sufficient to
by historic confidentiality, the burden is on them to substantiate the same. overcome the privilege in this instance.
This petitioners failed to discharge.
To clarify, there are at least two kinds of public interest that must be
Whether the privilege applies only at certain stages of the taken into account. One is the presumed public interest in favor of
negotiation process keeping the subject information confidential, which is the reason for
the privilege in the first place, and the other is the public interest in favor
Petitioners admit that "diplomatic negotiations on the JPEPA are entitled of disclosure, the existence of which must be shown by the party asking
to a reasonable amount of confidentiality so as not to jeopardize the for information. 47
diplomatic process." They argue, however, that the same is privileged
"only at certain stages of the negotiating process, after which such The criteria to be employed in determining whether there is a sufficient
information must necessarily be revealed to the public." 43 They add that public interest in favor of disclosure may be gathered from cases such
the duty to disclose this information was vested in the government when as U.S. v. Nixon,48 Senate Select Committee on Presidential Campaign
the negotiations moved from the formulation and exploratory stage to the Activities v. Nixon,49 and In re Sealed Case.50
firming up of definite propositions or official recommendations,
citing Chavez v. PCGG44 and Chavez v. PEA.45 U.S. v. Nixon, which involved a claim of the presidential communications
privilege against the subpoena duces tecum of a district court in a
The following statement in Chavez v. PEA, however, suffices to show that criminal case, emphasized the need to balance such claim of privilege
the doctrine in both that case and Chavez v. PCGG with regard to the against the constitutional duty of courts to ensure a fair administration of
duty to disclose "definite propositions of the government" does not apply criminal justice.
to diplomatic negotiations:
x x x the allowance of the privilege to withhold evidence that is
We rule, therefore, that the constitutional right to information includes demonstrably relevant in a criminal trial would cut deeply into the
official information on on-going negotiationsbefore a final contract. The guarantee of due process of law and gravely impair the basic
information, however, must constitute definite propositions by the function of the courts. A President’s acknowledged need for
government and should not cover recognized exceptions like confidentiality in the communications of his office is general in
privileged information, military and diplomatic secrets and similar nature, whereas the constitutional need for production of relevant
matters affecting national security and public order. x x evidence in a criminal proceeding is specific and central to the fair
x46 (Emphasis and underscoring supplied) adjudication of a particular criminal case in the administration of
justice. Without access to specific facts a criminal prosecution may be
It follows from this ruling that even definite propositions of the totally frustrated. The President’s broad interest in confidentiality of
government may not be disclosed if they fall under "recognized communications will not be vitiated by disclosure of a limited number of
exceptions." The privilege for diplomatic negotiations is clearly among the conversations preliminarily shown to have some bearing on the pending
recognized exceptions, for the footnote to the immediately quoted ruling criminal cases. (Emphasis, italics and underscoring supplied)
cites PMPF v. Manglapus itself as an authority.
Similarly, Senate Select Committee v. Nixon,51 which involved a claim of
Whether there is sufficient public interest to overcome the claim of the presidential communications privilege against the subpoena duces
privilege tecum of a Senate committee, spoke of the need to balance such claim
with the duty of Congress to perform its legislative functions.
The staged decisional structure established in Nixon v. Sirica was participation, in violation of the due process clause of the Constitution.
designed to ensure that the President and those upon whom he directly They claim, moreover, that it is essential for the people to have access to
relies in the performance of his duties could continue to work under a the initial offers exchanged during the negotiations since only through
general assurance that their deliberations would remain confidential. So such disclosure can their constitutional right to effectively participate in
long as the presumption that the public interest favors decision-making be brought to life in the context of international trade
confidentiality can be defeated only by a strong showing of need by agreements.
another institution of government- a showing that the
responsibilities of that institution cannot responsibly be fulfilled Whether it can accurately be said that the Filipino people were not
without access to records of the President's deliberations- we involved in the JPEPA negotiations is a question of fact which this Court
believed in Nixon v. Sirica, and continue to believe, that the effective need not resolve. Suffice it to state that respondents had presented
functioning of the presidential office will not be impaired. x x x documents purporting to show that public consultations were conducted
on the JPEPA. Parenthetically, petitioners consider these "alleged
xxxx consultations" as "woefully selective and inadequate."53

The sufficiency of the Committee's showing of need has come to AT ALL EVENTS, since it is not disputed that the offers exchanged by the
depend, therefore, entirely on whether the subpoenaed materials Philippine and Japanese representatives have not been disclosed to the
are critical to the performance of its legislative functions. x x x public, the Court shall pass upon the issue of whether access to the
(Emphasis and underscoring supplied) documents bearing on them is, as petitioners claim, essential to their right
to participate in decision-making.
In re Sealed Case52 involved a claim of the deliberative process and
presidential communications privileges against a subpoena duces The case for petitioners has, of course, been immensely weakened by
tecum of a grand jury. On the claim of deliberative process privilege, the the disclosure of the full text of the JPEPA to the public since September
court stated: 11, 2006, even as it is still being deliberated upon by the Senate and,
therefore, not yet binding on the Philippines. Were the Senate to concur
The deliberative process privilege is a qualified privilege and can be with the validity of the JPEPA at this moment, there has already been, in
overcome by a sufficient showing of need. This need determination the words of PMPF v. Manglapus, "ample opportunity for discussion
is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time before [the treaty] is approved."
[the deliberative process privilege] is asserted the district court must
undertake a fresh balancing of the competing interests," taking into The text of the JPEPA having been published, petitioners have failed to
account factors such as "the relevance of the evidence," "the convince this Court that they will not be able to meaningfully exercise
availability of other evidence," "the seriousness of the litigation," their right to participate in decision-making unless the initial offers are
"the role of the government," and the "possibility of future timidity also published.
by government employees. x x x (Emphasis, italics and underscoring
supplied) It is of public knowledge that various non-government sectors and private
citizens have already publicly expressed their views on the JPEPA, their
Petitioners have failed to present the strong and "sufficient showing of comments not being limited to general observations thereon but on its
need" referred to in the immediately cited cases. The arguments they specific provisions. Numerous articles and statements critical of the
proffer to establish their entitlement to the subject documents fall short of JPEPA have been posted on the Internet. 54 Given these developments,
this standard. there is no basis for petitioners’ claim that access to the Philippine and
Japanese offers is essential to the exercise of their right to participate in
Petitioners go on to assert that the non-involvement of the Filipino people decision-making.
in the JPEPA negotiation process effectively results in the bargaining
away of their economic and property rights without their knowledge and
Petitioner-members of the House of Representatives additionally anchor As regards the power to enter into treaties or international
their claim to have a right to the subject documents on the basis of agreements, the Constitution vests the same in the
Congress’ inherent power to regulate commerce, be it domestic or President, subject only to the concurrence of at least two thirds vote
international. They allege that Congress cannot meaningfully exercise the of all the members of the Senate. In this light, the negotiation of the
power to regulate international trade agreements such as the JPEPA VFA and the subsequent ratification of the agreement are exclusive acts
without being given copies of the initial offers exchanged during the which pertain solely to the President, in the lawful exercise of his vast
negotiations thereof. In the same vein, they argue that the President executive and diplomatic powers granted him no less than by the
cannot exclude Congress from the JPEPA negotiations since whatever fundamental law itself. Into the field of negotiation the Senate
power and authority the President has to negotiate international trade cannot intrude, and Congress itself is powerless to invade it. x x
agreements is derived only by delegation of Congress, pursuant to Article x (Italics in the original; emphasis and underscoring supplied)
VI, Section 28(2) of the Constitution and Sections 401 and 402 of
Presidential Decree No. 1464.55 The same doctrine was reiterated even more recently in Pimentel v.
Executive Secretary57 where the Court ruled:
The subject of Article VI Section 28(2) of the Constitution is not the power
to negotiate treaties and international agreements, but the power to fix In our system of government, the President, being the head of state, is
tariff rates, import and export quotas, and other taxes. Thus it provides: regarded as the sole organ and authority in external relations and is
the country's sole representative with foreign nations. As the chief
(2) The Congress may, by law, authorize the President to fix within architect of foreign policy, the President acts as the country's mouthpiece
specified limits, and subject to such limitations and restrictions as it may with respect to international affairs. Hence, the President is vested with
impose, tariff rates, import and export quotas, tonnage and wharfage the authority to deal with foreign states and governments, extend or
dues, and other duties or imposts within the framework of the national withhold recognition, maintain diplomatic relations, enter into treaties,
development program of the Government. and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with
As to the power to negotiate treaties, the constitutional basis thereof is other states.
Section 21 of Article VII – the article on the Executive Department –
which states: Nonetheless, while the President has the sole authority to negotiate
and enter into treaties, the Constitution provides a limitation to his
No treaty or international agreement shall be valid and effective unless power by requiring the concurrence of 2/3 of all the members of the
concurred in by at least two-thirds of all the Members of the Senate. Senate for the validity of the treaty entered into by him. x x x
(Emphasis and underscoring supplied)
The doctrine in PMPF v. Manglapus that the treaty-making power is
exclusive to the President, being the sole organ of the nation in its While the power then to fix tariff rates and other taxes clearly belongs to
external relations, was echoed in BAYAN v. Executive Secretary56 where Congress, and is exercised by the President only by delegation of that
the Court held: body, it has long been recognized that the power to enter into treaties is
vested directly and exclusively in the President, subject only to the
By constitutional fiat and by the intrinsic nature of his office, the concurrence of at least two-thirds of all the Members of the Senate for the
President, as head of State, is the sole organ and authority in the external validity of the treaty. In this light, the authority of the President to enter
affairs of the country. In many ways, the President is the chief architect of into trade agreements with foreign nations provided under P.D.
the nation's foreign policy; his "dominance in the field of foreign relations 146458 may be interpreted as an acknowledgment of a power already
is (then) conceded." Wielding vast powers and influence, his conduct in inherent in its office. It may not be used as basis to hold the President or
the external affairs of the nation, as Jefferson describes, is "executive its representatives accountable to Congress for the conduct of treaty
altogether." negotiations.
This is not to say, of course, that the President’s power to enter into accompanied by precise and certain reasons for preserving
treaties is unlimited but for the requirement of Senate concurrence, since the confidentiality of the information being sought.
the President must still ensure that all treaties will substantively conform
to all the relevant provisions of the Constitution. Respondents’ failure to claim the privilege during the House Committee
hearings may not, however, be construed as a waiver thereof by the
It follows from the above discussion that Congress, while possessing vast Executive branch. As the immediately preceding paragraph indicates,
legislative powers, may not interfere in the field of treaty negotiations. what respondents received from the House Committee and petitioner-
While Article VII, Section 21 provides for Senate concurrence, such Congressman Aguja were mere requests for information. And as priorly
pertains only to the validity of the treaty under consideration, not to the stated, the House Committee itself refrained from pursuing its earlier
conduct of negotiations attendant to its conclusion. Moreover, it is not resolution to issue a subpoena duces tecum on account of then Speaker
even Congress as a whole that has been given the authority to concur as Jose de Venecia’s alleged request to Committee Chairperson
a means of checking the treaty-making power of the President, but only Congressman Teves to hold the same in abeyance.
the Senate.
While it is a salutary and noble practice for Congress to refrain from
Thus, as in the case of petitioners suing in their capacity as private issuing subpoenas to executive officials – out of respect for their office –
citizens, petitioners-members of the House of Representatives fail to until resort to it becomes necessary, the fact remains that such requests
present a "sufficient showing of need" that the information sought is are not a compulsory process. Being mere requests, they do not strictly
critical to the performance of the functions of Congress, functions that do call for an assertion of executive privilege.
not include treaty-negotiation.
The privilege is an exemption to Congress’ power of inquiry. 59 So long as
Respondents’ alleged failure to timely claim executive privilege Congress itself finds no cause to enforce such power, there is no strict
necessity to assert the privilege. In this light, respondents’ failure to
On respondents’ invocation of executive privilege, petitioners find the invoke the privilege during the House Committee investigations did not
same defective, not having been done seasonably as it was raised only in amount to a waiver thereof.
their Comment to the present petition and not during the House
Committee hearings. The Court observes, however, that the claim of privilege appearing in
respondents’ Comment to this petition fails to satisfy in full the
That respondents invoked the privilege for the first time only in their requirement laid down in Senate v. Ermita that the claim should be
Comment to the present petition does not mean that the claim of privilege invoked by the President or through the Executive Secretary "by order of
should not be credited. Petitioners’ position presupposes that an the President."60 Respondents’ claim of privilege is being sustained,
assertion of the privilege should have been made during the House however, its flaw notwithstanding, because of circumstances peculiar to
Committee investigations, failing which respondents are deemed to have the case.
waived it.
The assertion of executive privilege by the Executive Secretary, who is
When the House Committee and petitioner-Congressman one of the respondents herein, without him adding the phrase "by order of
Aguja requested respondents for copies of the documents subject of this the President," shall be considered as partially complying with the
case, respondents replied that the negotiations were still on-going and requirement laid down in Senate v. Ermita. The requirement that the
that the draft of the JPEPA would be released once the text thereof is phrase "by order of the President" should accompany the Executive
settled and complete. There was no intimation that the requested copies Secretary’s claim of privilege is a new rule laid down for the first time
are confidential in nature by reason of public policy. The response may in Senate v. Ermita, which was not yet final and executory at the time
not thus be deemed a claim of privilege by the standards of Senate v. respondents filed their Comment to the petition. 61 A strict application of
Ermita, which recognizes as claims of privilege only those which are this requirement would thus be unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice what the BOT Law seeks to prevent -- which is to expose the government
to the risk of incurring a monetary obligation resulting from a contract of
We are aware that behind the dissent of the Chief Justice lies a genuine loan between the project proponent and its lenders and to which the
zeal to protect our people’s right to information against any abuse of Government is not a party to -- but would also render the BOT Law
executive privilege. It is a zeal that We fully share. useless for what it seeks to achieve –- to make use of the resources of
the private sector in the "financing, operation and maintenance of
The Court, however, in its endeavor to guard against the abuse of infrastructure and development projects" which are necessary for national
executive privilege, should be careful not to veer towards the opposite growth and development but which the government, unfortunately, could
extreme, to the point that it would strike down as invalid even a legitimate ill-afford to finance at this point in time.64
exercise thereof.
Similarly, while herein petitioners-members of the House of
We respond only to the salient arguments of the Dissenting Opinion Representatives may not have been aiming to participate in the
which have not yet been sufficiently addressed above. negotiations directly, opening the JPEPA negotiations to their scrutiny –
even to the point of giving them access to the offers exchanged between
the Japanese and Philippine delegations – would have made a mockery
1. After its historical discussion on the allocation of power over
of what the Constitution sought to prevent and rendered it useless for
international trade agreements in the United States, the dissent
what it sought to achieve when it vested the power of direct negotiation
concludes that "it will be turning somersaults with history to contend that
solely with the President.
the President is the sole organ for external relations" in that jurisdiction.
With regard to this opinion, We make only the following observations:
What the U.S. Constitution sought to prevent and aimed to achieve in
defining the treaty-making power of the President, which our Constitution
There is, at least, a core meaning of the phrase "sole organ of the nation
similarly defines, may be gathered from Hamilton’s explanation of why
in its external relations" which is not being disputed, namely, that the
the U.S. Constitution excludes the House of Representatives from the
power to directly negotiate treaties and international agreements is
treaty-making process:
vested by our Constitution only in the Executive. Thus, the dissent states
that "Congress has the power to regulate commerce with foreign
nations but does not have the power to negotiate international x x x The fluctuating, and taking its future increase into account, the
agreements directly."62 multitudinous composition of that body, forbid us to expect in it those
qualities which are essential to the proper execution of such a trust.
Accurate and comprehensive knowledge of foreign politics; a steady and
What is disputed is how this principle applies to the case at bar.
systematic adherence to the same views; a nice and uniform sensibility to
national character, decision, secrecy and dispatch; are incompatible
The dissent opines that petitioner-members of the House of with a body so variable and so numerous. The very complication of the
Representatives, by asking for the subject JPEPA documents, are not business by introducing a necessity of the concurrence of so many
seeking to directly participate in the negotiations of the JPEPA, hence, different bodies, would of itself afford a solid objection. The greater
they cannot be prevented from gaining access to these documents. frequency of the calls upon the house of representatives, and the greater
length of time which it would often be necessary to keep them together
On the other hand, We hold that this is one occasion where the following when convened, to obtain their sanction in the progressive stages of a
ruling in Agan v. PIATCO63 – and in other cases both before and since – treaty, would be source of so great inconvenience and expense, as alone
should be applied: ought to condemn the project.65

This Court has long and consistently adhered to the legal maxim These considerations a fortiori apply in this jurisdiction, since the
that those that cannot be done directly cannot be done indirectly. To Philippine Constitution, unlike that of the U.S., does not even grant the
declare the PIATCO contracts valid despite the clear statutory prohibition Senate the power to advise the Executive in the making of treaties, but
against a direct government guarantee would not only make a mockery of only vests in that body the power to concur in the validity of the treaty
after negotiations have been concluded. 66 Much less, therefore, should it If the documents were indeed critical, the House Committee should have,
be inferred that the House of Representatives has this power. at the very least, issued a subpoena duces tecum or, like what the
Senate did in Senate v. Ermita, filed the present petition as a legislative
Since allowing petitioner-members of the House of Representatives body, rather than leaving it to the discretion of individual Congressmen
access to the subject JPEPA documents would set a precedent for future whether to pursue an action or not. Such acts would have served as
negotiations, leading to the contravention of the public interests strong indicia that Congress itself finds the subject information to be
articulated above which the Constitution sought to protect, the subject critical to its legislative functions.
documents should not be disclosed.
Further, given that respondents have claimed executive privilege,
2. The dissent also asserts that respondents can no longer claim the petitioner-members of the House of Representatives should have, at
diplomatic secrets privilege over the subject JPEPA documents now that least, shown how its lack of access to the Philippine and Japanese offers
negotiations have been concluded, since their reasons for nondisclosure would hinder the intelligent crafting of legislation. Mere assertion that the
cited in the June 23, 2005 letter of Sec. Ermita, and later in their JPEPA covers a subject matter over which Congress has the power to
Comment, necessarily apply only for as long as the negotiations were still legislate would not suffice. As Senate Select Committee v. Nixon68 held,
pending; the showing required to overcome the presumption favoring
confidentiality turns, not only on the nature and appropriateness of the
In their Comment, respondents contend that "the negotiations of the function in the performance of which the material was sought, but also
representatives of the Philippines as well as of Japan must be allowed to the degree to which the material was necessary to its fulfillment. This
explore alternatives in the course of the negotiations in the same manner petitioners failed to do.
as judicial deliberations and working drafts of opinions are accorded strict
confidentiality." That respondents liken the documents involved in the Furthermore, from the time the final text of the JPEPA including its
JPEPA negotiations to judicial deliberations and working drafts of annexes and attachments was published, petitioner-members of the
opinions evinces, by itself, that they were claiming confidentiality House of Representatives have been free to use it for any legislative
not only until, but even after, the conclusion of the negotiations. purpose they may see fit. Since such publication, petitioners’ need, if
any, specifically for the Philippine and Japanese offers leading to the final
Judicial deliberations do not lose their confidential character once a version of the JPEPA, has become even less apparent.
decision has been promulgated by the courts. The same holds true with
respect to working drafts of opinions, which are comparable to intra- In asserting that the balance in this instance tilts in favor of disclosing the
agencyrecommendations. Such intra-agency recommendations are JPEPA documents, the dissent contends that the Executive has failed to
privileged even after the position under consideration by the agency has show how disclosing them after the conclusion of negotiations would
developed into a definite proposition, hence, the rule in this jurisdiction impair the performance of its functions. The contention, with due respect,
that agencies have the duty to disclose only definite propositions, and not misplaces the onus probandi. While, in keeping with the general
the inter-agency and intra-agency communications during the stage when presumption of transparency, the burden is initially on the Executive to
common assertions are still being formulated. 67 provide precise and certain reasons for upholding its claim of privilege,
once the Executive is able to show that the documents being sought are
3. The dissent claims that petitioner-members of the House of covered by a recognized privilege, the burden shifts to the party seeking
Representatives have sufficiently shown their need for the same information to overcome the privilege by a strong showing of need.
documents to overcome the privilege. Again, We disagree.
When it was thus established that the JPEPA documents are covered by
The House Committee that initiated the investigations on the JPEPA did the privilege for diplomatic negotiations pursuant to PMPF v. Manglapus,
not pursue its earlier intention to subpoena the documents. This strongly the presumption arose that their disclosure would impair the performance
undermines the assertion that access to the same documents by the of executive functions. It was then incumbent on petitioner- requesting
House Committee is critical to the performance of its legislative functions. parties to show that they have a strong need for the information sufficient
to overcome the privilege. They have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that the privileged character accorded to diplomatic negotiations does not ipso
he is claiming the privilege "by order of the President," the same may not facto lose all force and effect simply because the same privilege is now
be strictly applied to the privilege claim subject of this case. being claimed under different circumstances.

When the Court in Senate v. Ermita limited the power of invoking the PMPF v. Manglapus indeed involved a demand for information from
privilege to the President alone, it was laying down a new rule for which private citizens and not an executive-legislative conflict, but so
there is no counterpart even in the United States from which the concept did Chavez v. PEA74 which held that "the [public’s] right to information . . .
of executive privilege was adopted. As held in the 2004 case of Judicial does not extend to matters recognized as privileged information under
Watch, Inc. v. Department of Justice,69 citing In re Sealed Case,70 "the the separation of powers." What counts as privileged information in an
issue of whether a President must personally invoke the [presidential executive-legislative conflict is thus also recognized as such in cases
communications] privilege remains an open question." U.S. v. involving the public’s right to information.
Reynolds,71 on the other hand, held that "[t]here must be a formal claim of
privilege, lodged by the head of the department which has control over Chavez v. PCGG75 also involved the public’s right to information, yet the
the matter, after actual personal consideration by that officer." Court recognized as a valid limitation to that right the same privileged
information based on separation of powers – closed-door Cabinet
The rule was thus laid down by this Court, not in adherence to any meetings, executive sessions of either house of Congress, and the
established precedent, but with the aim of preventing the abuse of the internal deliberations of the Supreme Court.
privilege in light of its highly exceptional nature. The Court’s recognition
that the Executive Secretary also bears the power to invoke the privilege, These cases show that the Court has always regarded claims of
provided he does so "by order of the President," is meant to avoid laying privilege, whether in the context of an executive-legislative conflict or a
down too rigid a rule, the Court being aware that it was laying down a citizen’s demand for information, as closely intertwined, such that the
new restriction on executive privilege. It is with the same spirit that the principles applicable to one are also applicable to the other.
Court should not be overly strict with applying the same rule in this
peculiar instance, where the claim of executive privilege occurred before The reason is obvious. If the validity of claims of privilege were to be
the judgment in Senate v. Ermitabecame final. assessed by entirely different criteria in each context, this may give rise
to the absurd result where Congress would be denied access to a
5. To show that PMPF v. Manglapus may not be applied in the present particular information because of a claim of executive privilege, but the
case, the dissent implies that the Court therein erred in citing US v. general public would have access to the same information, the claim of
Curtiss Wright72 and the book entitled The New American Government privilege notwithstanding.
and Its Work73since these authorities, so the dissent claims, may not be
used to calibrate the importance of the right to information in the Absurdity would be the ultimate result if, for instance, the Court adopts
Philippine setting. the "clear and present danger" test for the assessment of claims of
privilege against citizens’ demands for information. If executive
The dissent argues that since Curtiss-Wright referred to a conflict information, when demanded by a citizen, is privileged only when there is
between the executive and legislative branches of government, the a clear and present danger of a substantive evil that the State has a right
factual setting thereof was different from that of PMPF v. to prevent, it would be very difficult for the Executive to establish the
Manglapus which involved a collision between governmental power over validity of its claim in each instance. In contrast, if the demand comes
the conduct of foreign affairs and the citizen’s right to information. from Congress, the Executive merely has to show that the information is
covered by a recognized privilege in order to shift the burden on
That the Court could freely cite Curtiss-Wright – a case that upholds the Congress to present a strong showing of need. This would lead to a
secrecy of diplomatic negotiations against congressional demands for situation where it would be more difficult for Congress to access
information – in the course of laying down a ruling on the public right to executive information than it would be for private citizens.
information only serves to underscore the principle mentioned earlier that
We maintain then that when the Executive has already shown that an overcome the claim of privilege.77 Verily, the Court in such cases engages
information is covered by executive privilege, the party demanding the in a balancing of interests. Such a balancing of interests is certainly not
information must present a "strong showing of need," whether that party new in constitutional adjudication involving fundamental rights. Secretary
is Congress or a private citizen. of Justice v. Lantion,78 which was cited in the dissent, applied just such a
test.
The rule that the same "showing of need" test applies in both these
contexts, however, should not be construed as a denial of the importance Given that the dissent has clarified that it does not seek to apply the
of analyzing the context in which an executive privilege controversy may "clear and present danger" test to the present controversy, but the
happen to be placed. Rather, it affirms it, for it means that balancing test, there seems to be no substantial dispute between the
the specific need being shown by the party seeking information in position laid down in this ponencia and that reflected in the dissent as to
every particular instance is highly significant in determining whether to what test to apply. It would appear that the only disagreement is on the
uphold a claim of privilege. This "need" is, precisely, part of the results of applying that test in this instance.
context in light of which every claim of privilege should be
assessed. The dissent, nonetheless, maintains that "it suffices that information is of
public concern for it to be covered by the right, regardless of the public’s
Since, as demonstrated above, there are common principles that should need for the information," and that the same would hold true even "if they
be applied to executive privilege controversies across different contexts, simply want to know it because it interests them." As has been stated
the Court in PMPF v. Manglapus did not err when it cited the Curtiss- earlier, however, there is no dispute that the information subject of this
Wrightcase. case is a matter of public concern. The Court has earlier concluded that it
is a matter of public concern, not on the basis of any specific need shown
The claim that the book cited in PMPF v. Manglapus entitled The New by petitioners, but from the very nature of the JPEPA as an international
American Government and Its Work could not have taken into account trade agreement.
the expanded statutory right to information in the FOIA assumes that the
observations in that book in support of the confidentiality of treaty However, when the Executive has – as in this case – invoked the
negotiations would be different had it been written after the FOIA. Such privilege, and it has been established that the subject information is
assumption is, with due respect, at best, speculative. indeed covered by the privilege being claimed, can a party overcome the
same by merely asserting that the information being demanded is a
As to the claim in the dissent that "[i]t is more doubtful if the same book matter of public concern, without any further showing required? Certainly
be used to calibrate the importance of the right of access to information in not, for that would render the doctrine of executive privilege of no force
the Philippine setting considering its elevation as a constitutional right," and effect whatsoever as a limitation on the right to information, because
we submit that the elevation of such right as a constitutional right did not then the sole test in such controversies would be whether an information
set it free from the legitimate restrictions of executive privilege which is is a matter of public concern.
itself constitutionally-based.76 Hence, the comments in that book which
were cited in PMPF v. Manglapus remain valid doctrine. Moreover, in view of the earlier discussions, we must bear in mind that,
by disclosing the documents of the JPEPA negotiations, the Philippine
6. The dissent further asserts that the Court has never used "need" as a government runs the grave risk of betraying the trust reposed in it by the
test to uphold or allow inroads into rights guaranteed under the Japanese representatives, indeed, by the Japanese government itself.
Constitution. With due respect, we assert otherwise. The Court has done How would the Philippine government then explain itself when that
so before, albeit without using the term "need." happens? Surely, it cannot bear to say that it just had to release the
information because certain persons simply wanted to know it "because it
In executive privilege controversies, the requirement that parties present interests them."
a "sufficient showing of need" only means, in substance, that they should
show a public interest in favor of disclosure sufficient in degree to
Thus, the Court holds that, in determining whether an information is the case of Nixon v. Administrator of General Services80 – which involved
covered by the right to information, a specific "showing of need" for such former President Nixon’s invocation of executive privilege to challenge
information is not a relevant consideration, but only whether the same is the constitutionality of the "Presidential Recordings and Materials
a matter of public concern. When, however, the government has claimed Preservation Act"81 – and the above-mentioned In re Sealed Case which
executive privilege, and it has established that the information is indeed involved a claim of privilege against a subpoena duces tecum issued in a
covered by the same, then the party demanding it, if it is to overcome the grand jury investigation.
privilege, must show that that the information is vital, not simply for the
satisfaction of its curiosity, but for its ability to effectively and reasonably Indeed, in applying to the present case the principles found in U.S. v.
participate in social, political, and economic decision-making.79 Nixon and in the other cases already mentioned, We are merely affirming
what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate
7. The dissent maintains that "[t]he treaty has thus entered the ultimate Committee on Accountability82 – a case involving an executive-legislative
stage where the people can exercise their right to participate in the conflict over executive privilege. That dissenting opinion stated that,
discussion whether the Senate should concur in its ratification or not." while Nixon was not concerned with the balance between the President’s
(Emphasis supplied) It adds that this right "will be diluted unless the generalized interest in confidentiality and congressional demands for
people can have access to the subject JPEPA documents". What, to the information, "[n]onetheless the [U.S.] Court laid down principles and
dissent, is a dilution of the right to participate in decision-making is, to Us, procedures that can serve as torch lights to illumine us on the
simply a recognition of the qualified nature of the public’s right to scope and use of Presidential communication privilege in the case
information. It is beyond dispute that the right to information is not at bar."83 While the Court was divided in Neri, this opinion of the Chief
absolute and that the doctrine of executive privilege is a recognized Justice was not among the points of disagreement, and We similarly hold
limitation on that right. now that the Nixon case is a useful guide in the proper resolution of the
present controversy, notwithstanding the difference in context.
Moreover, contrary to the submission that the right to participate in
decision-making would be diluted, We reiterate that our people have Verily, while the Court should guard against the abuse of executive
been exercising their right to participate in the discussion on the issue of privilege, it should also give full recognition to the validity of the
the JPEPA, and they have been able to articulate their different opinions privilege whenever it is claimed within the proper bounds of
without need of access to the JPEPA negotiation documents. executive power, as in this case. Otherwise, the Court would
undermine its own credibility, for it would be perceived as no longer
Thus, we hold that the balance in this case tilts in favor of executive aiming to strike a balance, but seeking merely to water down executive
privilege. privilege to the point of irrelevance.

8. Against our ruling that the principles applied in U.S. v. Nixon, Conclusion
the Senate Select Committee case, and In re Sealed Case, are similarly
applicable to the present controversy, the dissent cites the caveat in To recapitulate, petitioners’ demand to be furnished with a copy of the full
the Nixon case that the U.S. Court was there addressing only the text of the JPEPA has become moot and academic, it having been made
President’s assertion of privilege in the context of a criminal trial, not a accessible to the public since September 11, 2006. As for their demand
civil litigation nor a congressional demand for information. What this for copies of the Philippine and Japanese offers submitted during the
caveat means, however, is only that courts must be careful not to hastily JPEPA negotiations, the same must be denied, respondents’ claim of
apply the ruling therein to other contexts. It does not, however, absolutely executive privilege being valid.
mean that the principles applied in that case may never be applied in
such contexts. Diplomatic negotiations have, since the Court promulgated its Resolution
in PMPF v. Manglapus on September 13, 1988, been recognized as
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on privileged in this jurisdiction and the reasons proffered by petitioners
claims of executive privilege in contexts other than a criminal trial, as in against the application of the ruling therein to the present case have not
persuaded the Court. Moreover, petitioners – both private citizens and GANCAYCO, J.:
members of the House of Representatives – have failed to present a
"sufficient showing of need" to overcome the claim of privilege in this This is a Special Civil Action for certiorari to nullify and set aside the Resolutions of the Senate
Electoral Tribunal dated February 12, 1988 and May 27, 1988, denying, respectively, the petitioners'
case. Motion for Disqualification or Inhibition and their Motion for Reconsideration thereafter filed.

That the privilege was asserted for the first time in respondents’ On October 9, 1987, the petitioners filed before the respondent Tribunal
Comment to the present petition, and not during the hearings of the an election contest docketed as SET Case No. 002-87 against 22
House Special Committee on Globalization, is of no moment, since it candidates of the LABAN coalition who were proclaimed senators-elect in
cannot be interpreted as a waiver of the privilege on the part of the the May 11, 1987 congressional elections by the Commission on
Executive branch. Elections. The respondent Tribunal was at the time composed of three (3)
Justices of the Supreme Court and six (6) Senators, namely: Senior
For reasons already explained, this Decision shall not be interpreted as Associate Justice Pedro L. Yap (Chairman). Associate Justices Andres
departing from the ruling in Senate v. Ermitathat executive privilege R. Narvasa and Hugo E. Gutierrez, Jr., and Senators Joseph E. Estrada,
should be invoked by the President or through the Executive Secretary Neptali A. Gonzales, Teofisto T. Guingona, Jose Lina, Jr., Mamintal A.J.
"by order of the President." Tamano and Victor S. Ziga.

WHEREFORE, the petition is DISMISSED. On November 17, 1987, the petitioners, with the exception of Senator
Estrada but including Senator Juan Ponce Enrile (who had been
SO ORDERED. designated Member of the Tribunal replacing Senator Estrada, the latter
having affiliated with the Liberal Party and resigned as the Opposition's
representative in the Tribunal) filed with the respondent Tribunal a Motion
for Disqualification or Inhibition of the Senators-Members thereof from the
Republic of the Philippines hearing and resolution of SET Case No. 002-87 on the ground that all of
SUPREME COURT them are interested parties to said case, as respondents therein. Before
Manila that, Senator Rene A.V. Saguisag, one of the respondents in the same
case, had filed a Petition to Recuse and later a Supplemental Petition to
Recuse the same Senators-Members of the Tribunal on essentially the
EN BANC
same ground. Senator Vicente T. Paterno, another respondent in the
same contest, thereafter filed his comments on both the petitions to
G.R. No. 83767 October 27, 1988 recuse and the motion for disqualification or inhibition. Memoranda on the
subject were also filed and oral arguments were heard by the respondent
FIRDAUSI SMAIL ABBAS, HOMOBONO A. ADAZA, ALEJANDRO D. Tribunal, with the latter afterwards issuing the Resolutions now
ALMENDRAS, ABUL KAHYR D. ALONTO, JUAN PONCE ENRILE, complained of.
RENE G. ESPINA, WILSON P. GAMBOA, ROILO S. GOLEZ, ROMEO
G. JALOSJOS EVA R. ESTRADA-KALAW, WENCESLAO R. Senator Juan Ponce Enrile in the meantime had voluntarily inhibited
LAGUMBAY, VICENTE P. MAGSAYSAY, JEREMIAS U. himself from participating in the hearings and deliberations of the
MONTEMAYOR, BLAS F. OPLE, RAFAEL P. PALMARES, ZOSIMO respondent tribunal in both SET Case No. 00287 and SET Case No. 001-
JESUS M. PAREDES, JR., VICENTE G. PUYAT, EDITH N. RABAT, 87, the latter being another contest filed by Augusto's Sanchez against
ISIDRO S. RODRIGUEZ, FRANCISCO S. TATAD, LORENZO G. him and Senator Santanina T. Rasul as alternative respondents, citing his
TEVES, ARTURO M. TOLENTINO, and FERNANDO R. personal involvement as a party in the two cases.
VELOSO, petitioners,
vs.
THE SENATE ELECTORAL TRIBUNAL, respondent. The petitioners, in essence, argue that considerations of public policy and
the norms of fair play and due process imperatively require the mass
disqualification sought and that the doctrine of necessity which they when it held that said provision "... is a clear expression of an intent that
perceive to be the foundation petition of the questioned Resolutions does all (such) contests ... shall be resolved by a panel or body in which their
not rule out a solution both practicable and constitutionally (the Senators') peers in that Chamber are represented." 1 The other part,
unobjectionable, namely; the amendment of the respondent Tribunal's of course, is that the constitutional provision just as clearly mandates the
Rules of procedure so as to permit the contest being decided by only participation in the same process of decision of a representative or
three Members of the Tribunal. representatives of the Supreme Court.

The proposed amendment to the Tribunal's Rules (Section 24)—requiring Said intent is even more clearly signalled by the fact that the proportion of
the concurrence of five (5) members for the adoption of resolutions of Senators to Justices in the prescribed membership of the Senate
whatever nature is a proviso that where more than four (4) members are Electoral Tribunal is 2 to 1-an unmistakable indication that the "legislative
disqualified, the remaining members shall constitute a quorum, if not less component" cannot be totally excluded from participation in the resolution
than three (3) including one (1) Justice, and may adopt resolutions by of senatorial election contests, without doing violence to the spirit and
majority vote with no abstentions. Obviously tailored to fit the situation intent of the Constitution.
created by the petition for disqualification, this would, in the context of
that situation, leave the resolution of the contest to the only three Where, as here, a situation is created which precludes the substitution of
Members who would remain, all Justices of this Court, whose any Senator sitting in the Tribunal by any of his other colleagues in the
disqualification is not sought. Senate without inviting the same objections to the substitute's
competence, the proposed mass disqualification, if sanctioned and
We do not agree with petitioners' thesis that the suggested device is ordered, would leave the Tribunal no alternative but to abandon a duty
neither unfeasible nor repugnant to the Constitution. We opine that in fact that no other court or body can perform, but which it cannot lawfully
the most fundamental objection to such proposal lies in the plain terms discharge if shorn of the participation of its entire membership of
and intent of the Constitution itself which, in its Article VI, Section 17, Senators.
creates the Senate Electoral Tribunal, ordains its composition and
defines its jurisdiction and powers. To our mind, this is the overriding consideration—that the Tribunal be not
prevented from discharging a duty which it alone has the power to
Sec. 17. The Senate and the House of Representatives shall perform, the performance of which is in the highest public interest as
each have an Electoral Tribunal which shall be the sole judge of evidenced by its being expressly imposed by no less than the
all contests relating to the election, returns, and qualifications of fundamental law.
their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of It is aptly noted in the first of the questioned Resolutions that the framers
the Supreme Court to be designated by the Chief Justice, and the of the Constitution could not have been unaware of the possibility of an
remaining six shall be Members of the Senate or the House of election contest that would involve all 24 Senators-elect, six of whom
Representatives, as the case may be, who shall be chosen on the would inevitably have to sit in judgment thereon. Indeed, such possibility
basis of proportional representation from the political parties and might surface again in the wake of the 1992 elections when once more,
the parties or organizations registered under the party-list system but for the last time, all 24 seats in the Senate will be at stake. Yet the
represented therein. The senior Justice in the Electoral Tribunal Constitution provides no scheme or mode for settling such unusual
hall be its Chairman. situations or for the substitution of Senators designated to the Tribunal
whose disqualification may be sought. Litigants in such situations must
It seems quite clear to us that in thus providing for a Tribunal to be staffed simply place their trust and hopes of vindication in the fairness and sense
by both Justices of the Supreme Court and Members of the Senate, the of justice of the Members of the Tribunal. Justices and Senators, singly
Constitution intended that both those "judicial' and 'legislative' and collectively.
components commonly share the duty and authority of deciding all
contests relating to the election, returns and qualifications of Senators.
The respondent Tribunal correctly stated one part of this proposition
Let us not be misunderstood as saying that no Senator-Member of the Nicanor S. Bautista for respondent Marciano M. Pineda.
Senate Electoral Tribunal may inhibit or disqualify himself from sitting in
judgment on any case before said Tribunal. Every Member of the Benedicto R. Palacol for respondent M.M. Palacol.
Tribunal may, as his conscience dictates, refrain from participating in the
resolution of a case where he sincerely feels that his personal interests or
biases would stand in the way of an objective and impartial judgment.
What we are merely saying is that in the light of the Constitution, the
GRIO-AQUIÑO, J.:p
Senate Electoral Tribunal cannot legally function as such, absent
its entire membership of Senators and that no amendment of its Rules
can confer on the three Justices-Members alone the power of valid This case involves a question of power. May the House of
adjudication of a senatorial election contest. Representatives, at the request of the dominant political party therein,
change that party's representation in the House Electoral Tribunal to
thwart the promulgation of a decision freely reached by the tribunal in an
The charge that the respondent Tribunal gravely abused its discretion in
election contest pending therein? May the Supreme Court review and
its disposition of the incidents referred to must therefore fail. In the
annul that action of the House?
circumstances, it acted well within law and principle in dismissing the
petition for disqualification or inhibition filed by herein petitioners. The
instant petition for certiorari is DISMISSED for lack of merit. Even the Supreme Court of the United States over a century ago,
in Marbury vs. Madison, 2 L. ed. 60 (1803), had hesitated to embark upon
a legal investigation of the acts of the other two branches of the
SO ORDERED.
Government, finding it "peculiarly irksome as well as delicate" because it
could be considered by some as "an attempt to intrude" into the affairs of
the other two and to intermeddle with their prerogatives.

In the past, the Supreme Court, as head of the third and weakest branch
of our Government, was all too willing to avoid a political confrontation
Republic of the Philippines with the other two branches by burying its head ostrich-like in the sands
SUPREME COURT of the "political question" doctrine, the accepted meaning of which is that
Manila 'where the matter involved is left to a decision by the people acting in
their sovereign capacity or to the sole determination by either or both the
EN BANC legislative or executive branch of the government, it is beyond judicial
cognizance. Thus it was that in suits where the party proceeded against
G.R. No. 97710 September 26, 1991 was either the President or Congress, or any of its branches for that
matter, the courts refused to act." (Aquino vs. Ponce Enrile, 59 SCRA
DR. EMIGDIO A. BONDOC, petitioner, 183, 196.)
vs.
REPRESENTATIVES MARCIANO M. PINEDA, MAGDALENO M. In time, however, the duty of the courts to look into the constitutionality
PALACOL, COL. JUANITO G. CAMASURA, JR., or any other and validity of legislative or executive action, especially when private
representative who may be appointed vice representative Juanita G. rights are affected came to be recognized. As we pointed out in the
Camasura, Jr., and THE HOUSE OF REPRESENTATIVES celebrated Aquino case, a showing that plenary power is granted either
ELECTORAL TRIBUNAL, respondents. department of government may not be an obstacle to judicial inquiry, for
the improvident exercise or the abuse thereof may give rise to a
Estelito P. Mendoza, Romulo C. Felixmera and Horacio S.J. Apostol for justiciable controversy. Since "a constitutional grant of authority is not
petitioner. usually unrestricted, limitations being provided for as to what may be
done and how it is to be accomplished, necessarily then, it becomes the
responsibility of the courts to ascertain whether the two coordinate On May 19, 1987, Pineda was proclaimed winner in the election. In due
branches have adhered to the mandate of the fundamental law. The time, Bondoc filed a protest (HRET Case No. 25) in the House of
question thus posed is judicial rather than political. The duty remains to Representatives Electoral Tribunal ( for short) which is composed of nine
assure that the supremacy of the Constitution is upheld" (Aquino vs. (9) members, three of whom are Justices of the Supreme Court and the
Ponce Enrile, 59 SCRA 183, 196). remaining six are members of the House of Representatives chosen on
the basis of proportional representation from the political parties and the
That duty is a part of the judicial power vested in the courts by an express parties or organizations registered under the party-list system
grant under Section 1, Article VIII of the 1987 Constitution of the represented therein (Sec. 17, Art. VI, 1987 Constitution) as follows:
Philippines which defines judicial power as both authority and duty of the
courts 'to settle actual controversies involving rights which are legally AMEURFINA M. HERRERA Chairman
demandable and enforceable, and to determine whether or not there has Associate Justice
been a grave abuse of discretion amounting to lack or excess of Supreme Court
jurisdiction on the part of any branch or instrumentality of the ISAGANI A. CRUZ Member
Government." Associate Justice
Supreme Court
The power and duty of the courts to nullify in appropriate cases, the FLORENTINO P. FELICIANO Member
actions of the executive and legislative branches of the Government, Associate Justice
does not mean that the courts are superior to the President and the Supreme Court
Legislature. It does mean though that the judiciary may not shirk "the HONORATO Y. AQUINO Member
irksome task" of inquiring into the constitutionality and legality of Congressman
legislative or executive action when a justiciable controversy is brought 1st District
before the courts by someone who has been aggrieved or prejudiced by Benguet LDP
such action, as in this case. It is — DAVID A. PONCE DE LEON Member
Congressman
a plain exercise of the judicial power, that power vested in courts 1st District Palawan
to enable them to administer justice according to law. ... It is LDP
simply a necessary concomitant of the power to hear and dispose SIMEON E. GARCIA, JR. Member
of a case or controversy properly before the court, to the
Congressman
determination of which must be brought the test and measure of
2nd District Nueva Ecija
the law. (Vera vs. Avelino, 77 Phil. 192, 203.)
LDP
JUANITO G. CAMASURA, JR. Member
In the local and congressional elections held on May 11, 1987, Marciano
Congressman
M. Pineda of the Laban ng Demokratikong Pilipino (LDP) and Dr. Emigdio
1st District Davao del Sur
A. Bondoc of the Nacionalista Party (NP) were rival candidates for the
LDP
position of Representative for the Fourth District of the province of
Pampanga. Each received the following votes in the canvass made by JOSE E. CALINGASAN Member
the Provincial Board of Canvassers of Pampanga: Congressman
4th District Batangas
Marciano M. Pineda.................... 31,700 votes LDP
Emigdio A. Bondoc..................... 28,400 votes ANTONIO H. CERILLES Member
Difference...................................... 3,300 votes Congressman
2nd District Zamboanga del Sur
(formerly GAD, now NP)
After the revision of the ballots, the presentation of evidence, and the House of Representatives, through the Speaker, to take note of it
submission of memoranda, Bondoc's protest was submitted for decision 'especially in matters where party membership is a prerequisite. 4
in July, 1989.
At 9:45 in the morning of March 4, 1991, the Chairman of the Tribunal,
By October 1990, a decision had been reached in which Bondoc won Mme. Justice Armeurfina M. Herrera, received the following letter dated
over Pineda by a margin of twenty-three (23) votes. At that point, the LDP March 13, 1991, from the Office of the Secretary General of the House of
members in the Tribunal insisted on a reappreciation and recount of the Representatives, informing the Tribunal that on the basis of the letter
ballots cast in some precincts, thereby delaying by at least four (4) from the LDP, the House of Representatives, during its plenary session
months the finalization of the decision in the case. on March 13, 1991, decided to withdraw the nomination and rescind the
election of Congressman Camasura, Jr. to the House of Electoral
The reexamination and re-appreciation of the ballots resulted Tribunal. The letter reads as follows:
in increasing Bondoc's lead over Pineda to 107 votes. Congressman
Camasura voted with the Supreme Court Justices and Congressman 13 March 1991
Cerilles to proclaim Bondoc the winner of the contest.
Honorable Justice Ameurfina Melencio-Herrera Chairman
Moved by candor and honesty, Congressman Camasura revealed on
March 4, 1991, to his 'Chief," Congressman Jose S. Cojuangco, Jr., LDP House of Representatives Electoral Tribunal Constitution Hills
Secretary General, not only the final tally in the Bondoc case but also that Quezon City
he voted for Bondoc "consistent with truth and justice and self- respect,"
and to honor a "gentlemen's agreement" among the members of the Dear Honorable Justice Melencio-Herrera:
HRET that they would "abide by the result of the appreciation of the
contested ballot1 Congressman Camasura's revelation stirred a hornets'
I have the honor to notify the House of Electoral Tribunal of the
nest in the LDP which went into a flurry of plotting appropriate moves to
decision of the House of Representatives during its plenary
neutralize the pro-Bondoc majority in the Tribunal.
session on 13 March 1991, to withdraw the nomination and to
rescind the election of the Honorable Juanito G. Camasura, Jr. to
On March 5, 1991, the HRET issued a Notice of Promulgation of Decision the House Electoral Tribunal on the basis of an LDP
on March 14, 1991 at 2:30 P.M. in HRET Case No. 25. A copy of the communication which is self-explanatory and copies of which are
notice was received by Bondoc's counsel on March 6, 1991. hereto attached.

On March 13, 1991, the eve of the promulgation of the Bondoc decision, Thank you.
Congressman Cojuangco informed Congressman Camasura by
letter2 that on February 28, 1991 yet, the LDP Davao del Sur Chapter at
For the Secretary-General
Digos, Davao del Sur, by Resolution No. 03-91 had already expelled him
and Congressman Benjamin Bautista from the LDP for having allegedly
helped to organize the Partido Pilipino of Eduardo "Danding" Cojuangco, (SGD.) Josefina D. Azarcon Officer-in-charge Operations
and for allegedly having invited LDP members in Davao del Sur to join Department (p. 10, Rollo.)
said political party; and that as those acts are "not only inimical uncalled
for, unethical and immoral, but also a complete betrayal to (sic) the cause Justices Herrera, Cruz, and Feliciano promptly apprised the Chief Justice
and objectives, and loyalty to LDP," in a meeting on March 12, 1991, the and Associate Justices of the Supreme Court in writing, of this
LDP Executive Committee unanimously confirmed the expulsions. 3 "distressing development' and asked to be relieved from their
assignments in the HRET because —
At the same time, Congressman Cojuangco notified Speaker Ramon V.
Mitra about the ouster of the two congressmen from the LDP, and asked
By the above action (of the House) the promulgation of the Section 17 of the 1987 Constitution, should be amended to
decision of the Tribunal in the electoral protest entitled "Bondoc v. provide instead for a return to the composition mandated in the
Pineda" (HRET Case No. 25), previously scheduled for 14 March 1935 Constitution, that is: three (3) members chosen by the
1991, is sought to be aborted (See the Consolidated Bank and House or Senate upon nomination of the party having the largest
Trust Corporation v. Hon. Intermediate Appellate Court, G.R. No. number of votes and three (3) of the party having the second
73777-78 promulgated 12 September 1990). Even if there were largest number of votes: and a judicial component consisting of
no legal impediment to its promulgation, the decision which was three (3) justices from the Supreme Court. Thereby, no party or
reached on a 5 to 4 vote may now be confidently expected to be coalition of parties can dominate the legislative component in the
overturned on a motion for reconsideration by the party-litigant Tribunal.
which would have been defeated.
In the alternative, the Senate Electoral Tribunal could perhaps sit
The decision in Bondoc v. Pineda was ready as early as October as the sole judge of all contests relating to the election, returns
1990 with a margin of 23 votes in favor of protestant Bondoc. and qualifications of members of the House of Representatives.
Because some members of the Tribunal requested re- Similarly, the House of Representatives Electoral Tribunal could
appreciation of some ballots, the finalization of the decision had sit as the sole judge of all such contests involving members of the
to be deferred by at least 4 months. Senate. In this way, there should be lesser chances of non-
judicial elements playing a decisive role in the resolution of
With the re-appreciation completed, the decision, now with a election contests.
margin of 107 votes in favor of protestant Bondoc, and concurred
in by Justices Ameurfina A. Melencio-Herrera, Isagani A. Cruz We suggest that there should also be a provision in the
and Florentino P. Feliciano, and Congressmen Juanita G. Constitution that upon designation to membership in the Electoral
Camasura and Antonio H. Cerilles, is set for promulgation on 14 Tribunal, those so designated should divest themselves of
March 1991, with Congressmen Honorato Y. Aquino, David A. affiliation with their respective political parties, to insure their
Ponce de Leon Simeon E. Garcia, Jr. and Jose E. Calingasan, independence and objectivity as they sit in Tribunal deliberations.
dissenting.
There are only three (3) remaining cases for decision by the
Congressman Casamura's vote in the Bondoc v. Pineda case Tribunal. Bondoc should have been promulgated today, 14 March
was, in our view, a conscience vote, for which he earned the 1991. Cabrera v. Apacible (HRET Case No. 21) is scheduled for
respect of the Tribunal but also the loss of the confidence of the promulgation on 31 March 1991 and Lucman v. Dimaporo (HRET
leader of his party. Case No. 45), after the Holy Week recess.

Under the above circumstances an untenable situation has come But political factors are blocking the accomplishment of the
about. It is extremely difficult to continue with membership in the constitutionally mandated task of the Tribunal well ahead of the
Tribunal and for the Tribunal to preserve it. 8 integrity and completion of the present congressional term.
credibility as a constitutional body charged with a judicial task. It
is clear to us that the unseating of an incumbent member of Under these circumstances, we are compelled to ask to be
Congress is being prevented at all costs. We believe that the relieved from the chairmanship and membership in the Tribunal.
Tribunal should not be hampered in the performance of its
constitutional function by factors which have nothing to do with xxx xxx xxx
the merits of the cases before it.
At the open session of the HRET in the afternoon of the same day, the
In this connection, our own experience teaches that the provision Tribunal issued Resolution No. 91-0018 cancelling the promulgation of
for proportional representation in the Tribunal found in Article VI, the decision in HRET Case No. 25. The resolution reads:
In view of the formal notice the Tribunal has received at 9:45 tills resignation, permanent disability, or removal for valid cause, not
morning from the House of Representatives that at its plenary including political disloyalty.
session held on March 13, 1991, it had voted to withdraw the
nomination and rescind the election of Congressman Camasura ACCORDINGLY, the Court Resolved: a) to DECLINE the request
to the House of Representatives Electoral Tribunal,' the Tribunal of justices Herrera, Cruz, and Feliciano to be relieved from their
Resolved to cancel the promulgation of its Decision in Bondoc vs. membership in the House of Representatives Electoral Tribunal
Pineda (HRET Case No. 25) scheduled for this afternoon. This is and instead to DIRECT them to resume their duties therein: b) to
because, without Congressman Camasura's vote, the decision EXPRESS its concern over the intrusion of non-judicial factors in
lacks the concurrence of five members as required by Section 24 the proceedings of the House of Representatives Electoral
of the Rules of the Tribunal and, therefore, cannot be validly Tribunal, which performs functions purely judicial in character
promulgated. despite the inclusion of legislators in its membership; and c) to
NOTE the view that the term of all the members of the Electoral
The Tribunal noted that the three (3) Justices-members of the Tribunals, including those from the legislature, is co-extensive
Supreme Court, being of the opinion that this development with the corresponding legislative term and cannot be terminated
undermines the independence of the Tribunal and derails the at will but only for valid legal cause, and to REQUIRE the
orderly adjudication of electoral cases, they have asked the Chief Justices-members of the Tribunal to submit the issue to the said
Justice, in a letter of even date, for their relief from membership in Tribunal in the first instance.
the Tribunal.
Paras J. filed this separate concurring opinion: 'I concur, but I
The Tribunal further Noted that Congressman Cerilles also wish to add that Rep. Camasura should be allowed to cast his
manifested his intention to resign as a member of the Tribunal. original vote in favor of protestant Bondoc, otherwise a political
and judicial travesty will take place.' Melencio-Herrera, Cruz and
The Tribunal further Noted that Congressmen Aquino, Ponce de Feliciano, JJ., took no part. Gancayco, J., is on leave.
Leon, Garcia, Jr., and Calingasan also manifested a similar
intention. (p. 37, Rollo.) On March 21, 1991, a petition for certiorari, prohibition and mandamus
was filed by Dr. Emigdio A. Bondoc against Representatives Marciano M.
On March 19, 1991, this Court, after deliberating on the request for relief Pineda, Magdaleno M. Palacol, Juanita G. Camasura, Jr., or any other
of Justices Herrera, Cruz and Feliciano, resolved to direct them to return representative who may be appointed Vice Representative Juanita G.
to their duties in the Tribunal. The Court observed that: Camasura, Jr., and the House of Representatives Electoral Tribunal,
praying this Court to:
... in view of the sensitive constitutional functions of the Electoral
Tribunals as the 'sole judge' of all contests relationship to the 1. Annul the decision of the House of Representatives of March
election, returns and qualifications of the members of Congress, 13, 1991, 'to withdraw the nomination and to rescind the
all members of these bodies are appropriately guided only by nomination of Representative Juanita G. Camasura, Jr. to the
purely legal considerations in the decision of the cases before House of Representatives Electoral Tribunal;"
them and that in the contemplation of the Constitution the
members-legislators, thereof, upon assumption of their duties 2. Issue a wilt of prohibition restraining respondent Palacol or
therein, sit in the Tribunal no longer as representatives of their whomsoever may be designated in place of respondent
respective political parties but as impartial judges. The view was Camasura from assuming, occupying and discharging functions
also submitted that, to further bolster the independence of the as a member of the House of Representatives Electoral Tribunal;
Tribunals, the term of office of every member thereof should be
considered co-extensive with the corresponding legislative term
and may not be legally terminated except only by death,
3. Issue a writ of mandamus ordering respondent Camasura to indispensable party for it was the House, not the HRET that withdrew and
immediately reassume and discharge his functions as a member rescinded Congressman Camasura's membership in the HRET. 12
of the House of Representatives Electoral Tribunal; and
The Solicitor General, as counsel for the Tribunal, argued in a similar
4. Grant such other relief as may be just and equitable. vein; that the inclusion of the HETH as a party respondent is erroneous
because the petition states no cause of action against the Tribunal. The
Upon receipt of the petition, the Court, without giving it due course, petitioner does not question any act or order of the HRET in violation of
required the respondents to comment5 on the petition within ten days from his rights. What he assails is the act of the House of Representatives of
notice and to enjoin the HRET 'from reorganizing and allowing withdrawing the nomination, and rescinding the election, of Congressman
participation in its proceedings of Honorable Magdaleno M. Palacol or Juanita nito Camasura as a member of the HRET.13
whoever is designated to replace Honorable Juanita G. Camasura in said
House of Representatives Electoral Tribunal, until the issue of the Replying to the Solicitor General's Manifestation, the petitioner argued
withdrawal of the nomination and rescission of the election of said that while the Tribunal indeed had nothing to do with the assailed
Congressman Camasura as member of the HRET by the House of decision of the House of Representatives, it acknowledged that decision
Representatives is resolved by this Court, or until otherwise ordered by by cancelling the promulgation of its decision in HRET Case No. 25 to his
the Court." (p. 39, Rollo.) (Bondoc's) prejudice.14 Hence, although the Tribunal may not be an
indispensable party, it is a necessary party to the suit, to assure that
Congressman Juanito G. Camasura, Jr. did not oppose the petition. complete relief is accorded to the petitioner for "in the ultimate, the
Tribunal would have to acknowledge, give recognition, and implement the
Congressman Marciano M. Pineda's plea for the dismissal of the petition Supreme Court's decision as to whether the relief of respondent
is centered on Congress' being the sole authority that nominates and Congressman Camasura from the Office of the Electoral Tribunal is
elects from its members. Upon recommendation by the political parties valid."15
therein, those who are to sit in the House of Representatives Electoral
Tribunal (and in the Commission on Appointments as well), hence, it In his reply to Congressman Palacol's Comment, the petitioner explained
allegedly has the sole power to remove any of them whenever the ratio in that Congressman Palacol was impleaded as one of the respondents in
the representation of the political parties in the House or Senate is this case because after the House of Representatives had announced the
materially changed on account of death, incapacity, removal or expulsion termination of Congressman Camasura's membership in the HETH
from the political party;6 that a Tribunal member's term of office is not co- several newspapers of general circulation reported that the House of
extensive with his legislative term,7 for if a member of the Tribunal who Representatives would nominate and elect Congressman Palacol to take
changes his party affiliation is not removed from the Tribunal, the Congressman Camasura's seat in the Tribunal.16
constitutional provision mandating representation based on political
affiliation would be completely nullified;8 and that the expulsion of Now, is the House of Representatives empowered by the Constitution to
Congressman Camasura from the LDP, is "purely a party affair" of the do that, i.e., to interfere with the disposition of an election contest in the
LDP9 and the decision to rescind his membership in the House Electoral House Electoral Tribunal through the ruse of "reorganizing" the
Tribunal is the sole prerogative of the House-of-Representative representation in the tribunal of the majority party?
Representatives, hence, it is a purely political question beyond the reach
of judicial review.10 Section 17, Article VI of the 1987 Constitution supplies the answer to that
question. It provides:
In his comment, respondent Congressman Magdaleno M. Palacol alleged
that the petitioner has no cause of action against him because he has not Section 17. The Senate and the House of Representatives shall
yet been nominated by the LDP for membership in the HRET. 11 Moreover, each have an Electoral Tribunal which shall be the sole judge of
the petition failed to implead the House of Representatives as an all contests relating to the election, returns and qualifications of
their respective members, Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of thirds of its members are politicians. It is a non-political body in a sea of
the Supreme Court to be designated by the Chief Justice, and the politicians. What this Court had earlier said about the Electoral
remaining six shall be Members of the Senate or House of Commission applies as well to the electoral tribunals of the Senate and
Representatives, as the case may be, who shall be chosen on the House of Representatives:
basis of proportional representation from the political parties and
the parties or organizations registered under the party list system The purpose of the constitutional convention creating the
represented therein. The senior Justice in the Electoral Tribunal Electoral Commission was to provide an independent and
shall be its Chairman. impartial tribunal for the determination of contests to legislative
office, devoid of partisan consideration, and to transfer to that
Section 17 reechoes Section 11, Article VI of the 1935 Constitution, tribunal all the powers previously exercised by the legislature in
except the provision on the representation of the main political parties in matters pertaining to contested elections of its members.
the tribunal which is now based on proportional representation from all
the political parties, instead of equal representation of three members The power granted to the electoral Commission to judge contests
from each of the first and second largest political aggrupations in the relating to the election and qualification of members of the
Legislature. The 1935 constitutional provision reads as follows: National Assembly is intended to be as complete and unimpaired
as if it had remained in the legislature.
Sec. 11. The Senate and the House of Representatives shall
have an Electoral Tribunal which shall be the sole judge of all The Electoral Tribunals of the Senate and the House were
contests relating to the election, returns, and qualifications of their created by the Constitution as special tribunals to be the sole
respective Members. Each Electoral Tribunal shall be composed judge of all contests relating to election returns and qualifications
of nine Members, three of whom shall be Justices of the Supreme of members of the legislative houses, and, as such, are
Court to be designated by the Chief Justice, and the remaining independent bodies which must be permitted to select their own
six shall be Members of the Senate or of the House of employees, and to supervise and control them, without any
Representatives, as the case may be, who shall be chosen by legislative interference. (Suanes vs. Chief Accountant of the
each House, three upon nomination of the party having the Senate, 81 Phil. 818.)
largest number of votes and three of the party having the second
largest member of votes therein. The senior Justice in each To be able to exercise exclusive jurisdiction, the House Electoral Tribunal
Electoral Tribunal shall be its Chairman. (1 935 Constitution of the must be independent. Its jurisdiction to hear and decide congressional
Philippines.) election contests is not to be shared by it with the Legislature nor with the
Courts.
Under the above provision, the Justices held the deciding votes, aid it
was impossible for any political party to control the voting in the tribunal. The Electoral Commission is a body separate from
and independent of the legislature and though not a power in the
The 1973 Constitution did not provide for an electoral tribunal in the tripartite scheme of government, it is to all intents and purposes,
Batasang Pambansa. when acting within the limits of its authority, an independent
organ; while composed of a majority of members of the
The use of the word "sole" in both Section 17 of the 1987 Constitution legislature it is a body separate from and independent of the
and Section 11 of the 1935 Constitution underscores legislature.
the exclusive jurisdiction of the House Electoral Tribunal as judge of
contests relating to the election, returns and qualifications of the xxx xxx xxx
members of the House of Representatives (Robles vs. House of
Representatives Electoral Tribunal, G.R. No. 86647, February 5, 1990). The Electoral Commission, a constitutional organ created for the
The tribunal was created to function as a nonpartisan court although two- specific purpose of determining contests relating to election
returns and qualifications of members of the National court said that these electoral tribunals are independent from
Assembly may not be interfered with by the judiciary when and Congress, devoid of partisan influence or consideration and,
while acting within the limits of its authority, but the Supreme therefore, Congress has no power to regulate proceedings of
Court has jurisdiction over the Electoral Commission for the these electoral tribunals.
purpose of determining the character, scope and extent of the MR. AZCUNA. I think that is correct. They are independent
constitutional grant to the commission as sole judge of all although they are not a separate branch of government.
contests relating to the election and qualifications of the members MR. MAAMBONG. There is a statement that in all parliaments of
of the National Assembly. (Angara vs. Electoral Commission, 63 the world, the invariable rule is to leave unto themselves the
Phil. 139.) determination of controversies with respect to the election and
qualifications of their members, and precisely they have this
The independence of the electoral tribunal was preserved undiminished Committee on Privileges which takes care of this particular
in the 1987 Constitution as the following exchanges on the subject controversy.
between Commissioners Maambong and Azcuna in the 1986 Would the Gentleman say that the creation of electoral tribunals
Constitutional Commission, attest: is an exception to this rule because apparently we have an
independent electoral tribunal?
MR. MAAMBONG. Thank you. MR. AZCUNA. To the extent that the electoral tribunals are
My questions will be very basic so we can go as fast as we can. independent, but the Gentleman will notice that the wordings say:
In the case of the electoral tribunal, either of the House or of the 'The Senate and the House of Representatives shall each have
Senate, is it correct to say that these tribunals are constitutional an Electoral Tribunal. 'It is still the Senate Electoral Tribunal and
creations? I will distinguish these with the case of the the House Electoral Tribunal. So, technically, it is the tribunal of
Tanodbayan and the Sandiganbayan which are created by the House and tribunal of the Senate although they are
mandate of the Constitution but they are not constitutional independent.
creations. Is that a good distinction? MR. MAAMBONG. But both of them, as we have agreed on, are
MR. AZCUNA. That is an excellent statement. independent from both bodies?
MR. MAAMBONG. Could we, therefore, say that either the MR. AZCUNA. That is correct.
Senate Electoral Tribunal or the House Electoral Tribunal is a MR. MAAMBONG. This is the bottom line of my question. How
constitutional body.? can we say that these bodies are independent when we still have
MR. AZCUNA. It is, Madam President. six politicians sitting in both tribunals?
MR. MAAMBONG. If it is a constitutional body, is it then subject MR. AZCUNA. Politicians can be independent, Madam President.
to constitutional restrictions? MR. MAAMBONG. Madam President, when we discussed a
MR. AZCUNA It would be subject to constitutional restrictions portion of this in the Committee on the Executive, there was a
intended for that body. comment by Chief Justice Concepcion-Commissioner
MR. MAAMBONG. I see. But I want to find out if the ruling in the Concepcion-that there seems to be some incongruity in these
case of Vera vs. Avelino, 77 Phil. 192, will still be applicable to electoral tribunals, considering that politicians still sit in the
the present bodies we are creating since it ruled that the electoral tribunals in spite of the fact that in the ruling in the case
tribunals are not separate departments of the government. Would of Sanidad vs. Vera, Senate Electoral tribunal Case No. 1, they
that ruling still be valid? are supposed to act in accordance with law and justice with
MR. AZCUNA. Yes, they are not separate departments because complete detachment from an political considerations. That is
the separate departments are the legislative, the executive and why I am asking now for the record how we could achieve such
the judiciary; but they are constitutional bodies. detachment when there are six politicians sitting there.
MR. MAAMBONG. Although they are not separate departments MR. AZCUNA. The same reason that the Gentleman, while
of government, I would like to know again if the ruling in Angara chosen on behalf of the opposition, has, with sterling
vs. Electoral Commission, 53 Phil. 139, would still be applicable competence, shown independence in the proceedings of this
to the present bodies we are deciding on, when the Supreme Commission. I think we can also trust that the members of the
tribunals will be independent. (pp. 111-112, Journal, Tuesday, Expulsion of Congressman Camasura violates his right to security of
July 22, 1986, Emphasis supplied.) tenure. —

Resolution of the House of Representatives violates the independence of Another reason for the nullity of the expulsion resolution of the House of
the HRET. — Representatives is that it violates Congressman Camasura's right to
security of tenure. Members of the HRET as "sole judge" of
The independence of the House Electoral Tribunal so zealously guarded congressional election contests, are entitled to security of tenure just as
by the framers of our Constitution, would, however, by a myth and its members of the judiciary enjoy security of tenure under our Constitution
proceedings a farce if the House of Representatives, or the majority party (Sec. 2, Art. VIII, 1987 Constitution). Therefore, membership in the House
therein, may shuffle and manipulate the political (as distinguished from Electoral Tribunal may not be terminated except for a just cause, such as,
the judicial) component of the electoral tribunal, to serve the interests of the expiration of the member's congressional term of office, his death,
the party in power. permanent disability, resignation from the political party he represents in
the tribunal, formal affiliation with another political party, or removal for
The resolution of the House of Representatives removing Congressman other valid cause. A member may not be expelled by the House of
Camasura from the House Electoral Tribunal for disloyalty to the LDP, Representatives for "party disloyalty" short of proof that he has formally
because he cast his vote in favor of the Nacionalista Party's candidate, affiliated with another political group. As the records of this case fail to
Bondoc, is a clear impairment of the constitutional prerogative of the show that Congressman Camasura has become a registered member of
House Electoral Tribunal to be the sole judge of the election contest another political party, his expulsion from the LDP and from the HRET
between Pineda and Bondoc. was not for a valid cause, hence, it violated his right to security of tenure.

To sanction such interference by the House of Representatives in the There is nothing to the argument of respondent Pineda that members of
work of the House Electoral Tribunal would reduce the tribunal to a mere the House Electoral Tribunal are not entitled to security of tenure
tool for the aggrandizement of the party in power (LDP) which the three because, as a matter of fact, two Supreme Court Justices in the Tribunal
justices of the Supreme Court and the lone NP member would be were changed before the end of the congressional term, namely: Chief
powerless to stop. A minority party candidate may as well abandon all Justice Marcelo B. Fernan who, upon his elevation to the office of Chief
hope at the threshold of the tribunal. Justice, was replaced by Justice Florentino P. Feliciano, and the latter,
who was temporarily replaced by Justice Emilio A. Gancayco, when he
(J. Feliciano) took a leave of absence to deliver a lecture in Yale
Disloyalty to party is not a valid cause for termination of membership in
University. It should be stressed, however, that those changes in the
the HRET. —
judicial composition to the HRET had no political implications at all unlike
the present attempt to remove Congressman Camasura. No coercion
As judges, the members of the tribunal must be non-partisan. They must was applied on Chief Justice Fernan to resign from the tribunal, nor on
discharge their functions with complete detachment, impartiality, and Justice Feliciano to go on a leave of absence. They acted on their own
independence even independence from the political party to which they free will, for valid reasons, and with no covert design to derail the
belong. Hence, "disloyalty to party" and "breach of party discipline," are disposition of a pending case in the HRET.
not valid grounds for the expulsion of a member of the tribunal. In
expelling Congressman Camasura from the HRET for having cast a
The case of Congressman Camasura is different. He was expelled from,
conscience vote" in favor of Bondoc, based strictly on the result of the
and by, the LDP to punish him for "party disloyalty" after he had revealed
examination and appreciation of the ballots and the recount of the votes
to the Secretary-General of the party how he voted in the Bondoc case.
by the tribunal, the House of Representatives committed a grave abuse
The purpose of the expulsion of Congressman Camasura was to nullify
of discretion, an injustice, and a violation of the Constitution. Its resolution
his vote in the Bondoc case so that the HRET's decision may not be
of expulsion against Congressman Camasura is, therefore, null and void.
promulgated, and so that the way could be cleared for the LDP to
nominate a replacement for Congressman Camasura in the Tribunal.
That stratagem of the LDP and the House of Representatives is clearly
aimed to substitute Congressman Camasura's vote and, in effect, to service of copies thereof on the parties, to be done immediately by the
change the judgment of the HRET in the Bondoc case. Tribunal. Costs against respondent Marciano A. Pineda.

The judicial power of this Court has been invoked by Bondoc for the SO ORDERED.
protection of his rights against the strong arm of the majority party in the
House of Representatives. The Court cannot be deaf to his plea for relief,
nor indifferent to his charge that the House of Representatives had acted
with grave abuse of discretion in removing Congressman Camasura from Republic of the Philippines
the House Electoral Tribunal. He calls upon the Court, as guardian of the SUPREME COURT
Constitution, to exercise its judicial power and discharge its duty to Manila
protect his rights as the party aggrieved by the action of the House. The
Court must perform its duty under the Constitution "even when the
EN BANC
violator be the highest official of the land or the Government itself"
(Concurring opinion of J. Antonio Barredo in Aquino vs. Ponce-Enrile, 59
SCRA 183, 207). G.R. No. 86344 December 21, 1989

Since the expulsion of Congressman Camasura from the House Electoral REP. RAUL A. DAZA, petitioner,
Tribunal by the House of Representatives was not for a lawful and valid vs.
cause, but to unjustly interfere with the tribunal's disposition of the REP. LUIS C. SINGSON and HON. RAOUL V. VICTORINO IN THE
Bondoc case and to deprive Bondoc of the fruits of the Tribunal's decision LATTER'S CAPACITY AS SECRETARY OF THE COMMISSION ON
in his favor, the action of the House of Representatives is clearly violative APPOINTMENTS, respondent.
of the constitutional mandate (Sec. 17, Art. VI, 1987 Constitution) which
created the House Electoral Tribunal to be the "sole judge" of the election
contest between Pineda and Bondoc. We, therefore, declare null and
void the resolution dated March 13, 1991 of the House of CRUZ, J.:
Representatives withdrawing the nomination, and rescinding the election,
of Congressman Camasura as a member of the House Electoral After the congressional elections of May 11, 1987, the House of
Tribunal. The petitioner, Dr. Emigdio Bondoc, is entitled to the reliefs he Representatives proportionally apportioned its twelve seats in the
prays for in this case. Commission on Appointments among the several political parties
represented in that chamber, including the Lakas ng Bansa, the PDP-
WHEREFORE, the petition for certiorari, prohibition and mandamus is Laban, the NP-Unido, the Liberal Party, and the KBL, in accordance with
granted. The decision of the House of Representatives withdrawing the Article VI, Section 18, of the Constitution. Petitioner Raul A. Daza was
nomination and rescinding the election of Congressman Juanita G. among those chosen and was listed as a representative of the Liberal
Camasura, Jr. as a member of the House Electoral Tribunal is hereby Party. 1
declared null and void ab initio for being violative of the Constitution, and
Congressman Juanita G. Camasura, Jr. is ordered reinstated to his On September 16, 1988, the Laban ng Demokratikong Pilipino was
position as a member of the House of Representatives Electoral Tribunal. reorganized, resulting in a political realignment in the House of
The HRET Resolution No. 91-0018 dated March 14, 1991, cancelling the Representatives. Twenty four members of the Liberal Party formally
promulgation of the decision in HRET Case No. 25 ("Dr. Emigdio Bondoc resigned from that party and joined the LDP, thereby swelling its number
vs. Marciano A. Pineda") is also set aside. Considering the to 159 and correspondingly reducing their former party to only 17
unconscionable delay incurred in the promulgation of that decision to the members. 2
prejudice of the speedy resolution of electoral cases, the Court, in the
exercise of its equity jurisdiction, and in the interest of justice, hereby
declares the said decision DULY PROMULGATED, effective upon
On the basis of this development, the House of Representatives revised proportional representation from the political parties and parties
its representation in the Commission on Appointments by withdrawing the or organizations registered under the party-list system
seat occupied by the petitioner and giving this to the newly-formed LDP. represented therein. The Chairman of the Commission shall not
On December 5, 1988, the chamber elected a new set of representatives vote, except in case of a tie. The Commission shall act on all
consisting of the original members except the petitioner and including appointments submitted to it within thirty session days of the
therein respondent Luis C. Singson as the additional member from the Congress from their submission. The Commission shall rule by a
LDP. 3 majority vote of all the Members.

The petitioner came to this Court on January 13, 1989, to challenge his Ruling first on the jurisdictional issue, we hold that, contrary to the
removal from the Commission on Appointments and the assumption of respondent's assertion, the Court has the competence to act on the
his seat by the respondent. Acting initially on his petition for prohibition matter at bar. Our finding is that what is before us is not a discretionary
and injunction with preliminary injunction, we issued a temporary act of the House of Representatives that may not be reviewed by us
restraining order that same day to prevent both the petitioner and the because it is political in nature. What is involved here is the legality, not
respondent from serving in the Commission on Appointments. 4 the wisdom, of the act of that chamber in removing the petitioner from the
Commission on Appointments. That is not a political question because,
Briefly stated, the contention of the petitioner is that he cannot be as Chief Justice Concepcion explained in Tanada v. Cuenco. 6
removed from the Commission on Appointments because his election
thereto is permanent under the doctrine announced in Cunanan v. ... the term "political question" connotes, in legal parlance, what it
Tan. 5 His claim is that the reorganization of the House representation in means in ordinary parlance, namely, a question of policy. In other
the said body is not based on a permanent political realignment because words, ... it refers "to those questions which, under the
the LDP is not a duly registered political party and has not yet attained Constitution, are to be decided by the people in their sovereign
political stability. capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the
For his part, the respondent argues that the question raised by the Government." It is concerned with issues dependent upon the
petitioner is political in nature and so beyond the jurisdiction of this Court. wisdom, not legality, of a particular measure.
He also maintains that he has been improperly impleaded, the real party
respondent being the House of Representatives which changed its In the aforementioned case, the Court was asked by the petitioners
representation in the Commission on Appointments and removed the therein to annul the election of two members of the Senate Electoral
petitioner. Finally, he stresses that nowhere in the Constitution is it Tribunal of that chamber, on the ground that they had not been validly
required that the political party be registered to be entitled to proportional nominated. The Senate then consisted of 23 members from the
representation in the Commission on Appointments. Nacionalista Party and the petitioner as the lone member of the Citizens
Party. Senator Lorenzo M. Tanada nominated only himself as the
In addition to the pleadings filed by the parties, a Comment was minority representative in the Tribunal, whereupon the majority elected
submitted by the Solicitor General as amicus curiae in compliance with Senators Mariano J. Cuenco. and Francisco Delgado, from its own ranks,
an order from the Court. to complete the nine-man composition of the Tribunal as provided for in
the 1935 Constitution. The petitioner came to this Court, contending that
At the core of this controversy is Article VI, Section 18, of the Constitution under Article VI, Section 11, of that Charter, the six legislative members
providing as follows: of the Tribunal were to be chosen by the Senate, "three upon nomination
of the party having the largest number of votes and three of the party
having the second largest number of votes therein." As the majority party
Sec. 18. There shall be a Commission on Appointments
in the Senate, the Nacionalista Party could nominate only three members
consisting of the President of the Senate, as ex officio Chairman,
and could not also fill the other two seats pertaining to the minority.
twelve Senators and twelve Members of the House of
Representatives, elected by each House on the basis of
By way of special and affirmative defenses, the respondents contended In the case now before us, the jurisdictional objection becomes even less
inter alia that the subject of the petition was an internal matter that only tenable and decisive. The reason is that, even if we were to assume that
the Senate could resolve. The Court rejected this argument, holding that the issue presented before us was political in nature, we would still not be
what was involved was not the wisdom of the Senate in choosing the precluded from resolving it under the expanded jurisdiction conferred
respondents but the legality of the choice in light of the requirement of the upon us that now covers, in proper cases, even the political question.
Constitution. The petitioners were questioning the manner of filling the Article VII, Section 1, of the Constitution clearly provides:
Tribunal, not the discretion of the Senate in doing so. The Court held that
this was a justiciable and not a political question, thus: Section 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Such is not the nature of the question for determination in the
present case. Here, we are called upon to decide whether the Judicial power includes the duty of the courts of justice to settle
election of Senators Cuenco and Delgado by the Senate, as actual controversies involving rights which are legally
members of the Senate Electoral Tribunal, upon nomination by demandable and enforceable, and to determine whether or not
Senator Primicias-member and spokesman of the party having there has been a grave abuse of discretion amounting to lack or
the largest number of votes in the Senate-behalf of its Committee excess of jurisdiction on the part of any branch or instrumentality
on Rules, contravenes the constitutional mandate that said of the Government.
members of the Senate Electoral Tribunal shall be chosen "upon
nomination ... of the party having the second largest number of The respondent's contention that he has been improperly impleaded is
votes" in the Senate and hence, is null and void. The Senate is even less persuasive. While he may be technically correct in arguing that
not clothed with "full discretionary authority" in the choice of it is not he who caused the petitioner's removal, we feel that this objection
members of the Senate Electoral Tribunal. The exercise of its is also not an insuperable obstacle to the resolution of this controversy.
power thereon is subject to constitutional limitations which are We may, for one thing, treat this proceeding as a petition for quo
claimed to be mandatory in nature. It is clearly within the warranto as the petitioner is actually questioning the respondent's right to
legitimate province of the judicial department to pass upon the sit as a member of the Commission on Appointments. For another, we
validity of the proceeding in connection therewith. have held as early as in the Emergency Powers Cases 7 that where
serious constitutional questions are involved, "the transcendental
... whether an election of public officers has been in accordance importance to the public of these cases demands that they be settled
with law is for the judiciary. Moreover, where the legislative promptly and definitely brushing aside, if we must, technicalities of
department has by statute prescribed election procedure in a procedure." The same policy has since then been consistently followed
given situation, the judiciary may determine whether a particular by the Court, as in Gonzales v. Commission on Elections, 8 where we
election has been in conformity with such statute, and particularly, held through Chief Justice Fernando:
whether such statute has been applied in a way to deny or
transgress on constitutional or statutory rights ...' (1 6 C.J.S., 439; In the course of the deliberations, a serious procedural objection
emphasis supplied) was raised by five members of the Court. It is their view that
respondent Commission on Elections not being sought to be
It is, therefore, our opinion that we have, not only jurisdiction but restrained from performing any specific act, this suit cannot be
also the duty, to consider and determine the principal issue raised characterized as other than a mere request for an advisory
by the parties herein." opinion. Such a view, from the remedial law standpoint, has much
to recommend it. Nonetheless, a majority would affirm the original
Although not specifically discussed, the same disposition was made in stand that under the circumstances, it could still rightfully be
Cunanan v. Tan as it likewise involved the manner or legality of the treated as a petition for prohibition.
organization of the Commission on Appointments, not the wisdom or
discretion of the House in the choice of its representatives.
The language of justice Laurel fits the case: "All await the on the proportional representation of the political parties in the House of
decision of this Court on the constitutional question. Considering, Representatives as required by the Constitution. The Court held:
therefore, the importance which the instant case has assumed
and to prevent multiplicity of suits, strong reasons of public policy ... In other words, a shifting of votes at a given time, even if du to
demand that [its] constitutionality ... be now resolved.' It may arrangements of a more or less temporary nature, like the one
likewise be added that the exceptional character of the situation that has led to the formation of the so-called "Allied Majority,"
that confronts us, the paramount public interest, and the does not suffice to authorize a reorganization of the membership
undeniable necessity for ruling, the national elections being of the Commission for said House. Otherwise the Commission on
barely six months away, reinforce our stand. It would appear Appointments may have to be reorganized as often as votes shift
undeniable, therefore, that before us is an appropriate invocation from one side to another in the House. The framers of our
of our jurisdiction to prevent the enforcement of an alleged Constitution could not have intended to thus place a constitutional
unconstitutional statute. We are left with no choice then; we must organ, like the Commission on Appointments, at the mercy of
act on the matter. each House of Congress.

Coming now to the more crucial question, the Court notes that both the The petitioner vigorously argues that the LDP is not the permanent
petitioner and the respondent are invoking the case of Cunanan v. Tan to political party contemplated in the Constitution because it has not been
support their respective positions. It is best, therefore, to make a quick registered in accordance with Article IX-B, Section 2(5), in relation to the
review of that case for a proper disposition of this one. other provisions of the Constitution. He stresses that the so-called party
has not yet achieved stability and suggests it might be no different from
In the election for the House of Representatives held in 1961, 72 seats several other political groups that have died "a-bornin'," like the LINA, or
were won by the Nacionalista Party, 29 by the Liberal Party and 1 by an have subsequently floundered, like the UNIDO.
independent. Accordingly, the representation of the chamber in the
Commission on Appointments was apportioned to 8 members from the The respondent also cites Cunanan but from a different viewpoint.
Nacionalista Party and 4 from the Liberal Party. Subsequently, 25 According to him, that case expressly allows reorganization at any time to
members of the Nacionalista Party, professing discontent over the House reflect changes in the political alignments in Congress, provided only that
leadership, made common cause with the Liberal Party and formed what such changes are permanent. The creation of the LDP constituting the
was called the Allied Majority to install a new Speaker and reorganize the bulk of the former PDP-Laban and to which no less than 24 Liberal
chamber. Included in this reorganization was the House representation in congressmen had transferred was a permanent change. That change
the Commission on appointments where three of the Nacionalista fully justified his designation to the Commission on Appointments after
congressmen originally chosen were displaced by three of their party the reduction of the LP representation therein. Thus, the Court held:
colleagues who had joined the Allied Majority.
Upon the other hand, the constitutional provision to the effect that
Petitioner Carlos Cunanan's ad interim appointment as Deputy "there shall be a Commission on Appointments consisting of
Administrator of the Reforestration Administration was rejected by the twelve (12) Senators and twelve (12) members of the House of
Commission on Appointments as thus reorganized and respondent Jorge Representatives elected by each House, respectively, on the
Tan, Jr. was thereafter designated in his place. Cunanan then came to basis of proportional REPRESENTATION OF THE POLITICAL
this Court, contending that the rejection of his appointment was null and PARTIES THEREIN," necessarily connotes the authority of each
void because the Commission itself was invalidly constituted. House of Congress to see to it that this requirement is duly
complied with. As a consequence, it may take appropriate
The Court agreed. It noted that the Allied Majority was a merely measures, not only upon the initial organization of the
temporary combination as the Nacionalista defectors had not disaffiliated Commission, but also, subsequently thereto. If by reason of
from their party and permanently joined the new political group. Officially, successful election protests against members of a House, or of
they were still members of the Nacionalista Party. The reorganization of their expulsion from the political party to which they belonged
the Commission on Appointments was invalid because it was not based and/or of their affiliation with another political party, the ratio in the
representation of the political parties in the House is materially organized only recently and has not yet "aged." The Liberal Party itself
changed, the House is clothed with authority to declare vacant would fall in such a category. That party was created in December 1945
the necessary number of seats in the Commission on by a faction of the Nacionalista Party that seceded therefrom to support
Appointments held by members of said House belonging to the Manuel A. Roxas's bid for the Presidency of the Philippines in the election
political party adversely affected by the change and then fill said held on April 23, 1946. 12 The Liberal Party won. At that time it was only
vacancies in conformity with the Constitution. four months old. Yet no question was raised as to its right to be
represented in the Commission on Appointments and in the Electoral
In the course of the spirited debate on this matter between the petitioner Tribunals by virtue of its status as the majority party in both chambers of
and the respondent (who was supported by the Solicitor General) an the Congress.
important development has supervened to considerably simplify the
present controversy. The petitioner, to repeat, bases his argument The LDP has been in existence for more than one year now. It now has
heavily on the non-registration of the LDP which, he claims has not 157 members in the House of Representatives and 6 members in the
provided the permanent political realignment to justify the questioned Senate. Its titular head is no less than the President of the Philippines
reorganization. As he insists: and its President is Senator Neptali A. Gonzales, who took over recently
from Speaker Ramon V. Mitra. It is true that there have been, and there
(c) Assuming that the so-called new coalesced majority is actually still are, some internal disagreements among its members, but these are
the LDP itself, then the proposed reorganization is likewise illegal to be expected in any political organization, especially if it is democratic in
and ineffectual, because the LDP, not being a duly registered structure. In fact even the monolithic Communist Party in a number of
political party, is not entitled to the "rights and privileges granted socialist states has undergone similar dissension, and even upheavals.
by law to political parties' (See. 160, BP No. 881), and therefore But it surely cannot be considered still temporary because of such
cannot legally claim the right to be considered in determining the discord.
required proportional representation of political parties in the
House of Representatives. 9 If the petitioner's argument were to be pursued, the 157 members of the
LDP in the House of Representatives would have to be denied
xxx xxx xxx representation in the Commission on Appointments and, for that matter,
also the Electoral Tribunal. By the same token, the KBL, which the
... the clear constitutional intent behind Section 18, Article VI, of petitioner says is now "history only," should also be written off. The
the 1987 Constitution, is to give the right of representation in the independents also cannot be represented because they belong to no
Commission on Appointment only to political parties who are duly political party. That would virtually leave the Liberal Party only with all of
registered with the Comelec. 10 its seventeen members to claim all the twelve seats of the House of
Representatives in the Commission on Appointments and the six
legislative seats in the House Electoral Tribunal.
On November 23, 1989, however, that argument boomeranged against
the petitioner. On that date, the Commission on Elections in an en banc
resolution affirmed the resolution of its First Division dated August 28, It is noteworthy that when with 41 members the Liberal Party was alloted
1989, granting the petition of the LDP for registration as a political two of the seats in the Commission on Appointments, it did not express
party. 11 This has taken the wind out of the sails of the petitioner, so to any objection. 13 Inconsistently, the petitioner is now opposed to the
speak, and he must now limp to shore as best he can. withdrawal from it of one seat although its original number has been cut
by more than half.
The petitioner's contention that, even if registered, the party must still
pass the test of time to prove its permanence is not acceptable. Under As for the other condition suggested by the petitioner, to wit, that the
this theory, a registered party obtaining the majority of the seats in the party must survive in a general congressional election, the LDP has
House of Representatives (or the Senate) would still not be entitled to doubtless also passed that test, if only vicariously. It may even be said
representation in the Commission on Appointments as long as it was that as it now commands the biggest following in the House of
Representatives, the party has not only survived but in fact prevailed. At Republic of the Philippines
any rate, that test was never laid down in Cunanan. SUPREME COURT
Manila
To summarize, then, we hold, in view of the foregoing considerations,
that the issue presented to us is justiciable rather political, involving as it EN BANC
does the legality and not the wisdom of the act complained of, or the
manner of filling the Commission on Appointments as prescribed by the G.R. No. 86649 July 12, 1990
Constitution. Even if the question were political in nature, it would still
come within our powers of review under the expanded jurisdiction ANNA DOMINIQUE M.L. COSETENG and KABABAIHAN PARA SA
conferred upon us by Article VIII, Section 1, of the Constitution, which INANG BAYAN, petitioners,
includes the authority to determine whether grave abuse of discretion vs.
amounting to excess or lack of jurisdiction has been committed by any HON. RAMON V. MITRA, JR., as speaker of the House of
branch or instrumentality of the government. As for the alleged technical Representatives of the Congress of the Philippines; HON.
flaw in the designation of the party respondent, assuming the existence of FRANCISCO SUMULONG, as Majority Floor Leader of the House of
such a defect, the same may be brushed aside, conformably to existing Representatives of the Congress of the Philippines; HON. JOVITO
doctrine, so that the important constitutional issue raised may be SALONGA, as Ex-Oficio Chairman of the Commission on
addressed. Lastly, we resolve that issue in favor of the authority of the Appointments; HON. ROQUE R. ABLAN, JR., HON. LORNA L.
House of Representatives to change its representation in the VERANO-YAP, HON. MIGUEL ROMERO, HON. ANTONIO V.
Commission on Appointments to reflect at any time the changes that may CUENCO, HON. ROGACIANO M. MERCADO, HON. ALAWADIN T.
transpire in the political alignments of its membership. It is understood BANDON, JR., HON. JOSE L. CABOCHAN, HON. CARLOS R.
that such changes must be permanent and do not include the temporary IMPERIAL, HON. MA. CLARA L. LOBREGAT, HON. NATALIO M.
alliances or factional divisions not involving severance of political loyalties BELTRAN, JR., HON. CARMELO J. LOCSIN & HON. LUIS C.
or formal disaffiliation and permanent shifts of allegiance from one SINGSON, as Members of the Commission on Appointments for the
political party to another. House of Representatives of the CONGRESS OF THE
PHILIPPINES, respondents.
The Court would have preferred not to intervene in this matter, leaving it
to be settled by the House of Representatives or the Commission on Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez
Appointments as the bodies directly involved. But as our jurisdiction has for petitioners.
been invoked and, more importantly, because a constitutional stalemate
had to be resolved, there was no alternative for us except to act, and to
Panganiban, Benitez, Barinaga & Bautista Law Offices for Lorna L.
act decisively. In doing so, of course, we are not imposing our will upon
Verano-Yap.
the said agencies, or substituting our discretion for theirs, but merely
discharging our sworn responsibility to interpret and apply the
Constitution. That is a duty we do not evade, lest we ourselves betray our GRIÑO-AQUINO, J.
oath.
The congressional elections of May 11, 1987 resulted in the election to the House of
Representatives of the candidates of diverse political parties such as the PDP-Laban,
WHEREFORE, the petition is DISMISSED. The temporary restraining Lakas ng Bansa (LB), Liberal Party (LP), NP-Unido, Kilusan ng Bagong Lipunan
order dated January 13, 1989, is LIFTED. The Court holds that the (KBL), Panaghiusa, Kababaihan Para sa Inang Bayan (KAIBA), and some
respondent has been validly elected as a member of the Commission on independents. Petitioner Anna Dominique M.L. Coseteng was the only candidate
Appointments and is entitled to assume his seat in that body pursuant to elected under the banner of KAIBA.
Article VI, Section 18, of the Constitution. No pronouncement as to costs.
On August 26, 1987, the House of Representatives, upon nomination by
SO ORDERED. the Majority Floor Leader, Cong. Francisco Sumulong, elected from the
Coalesced Majority, eleven (11) out of twelve (12) congressmen to 1. Hon. Miguel L. Romero LDP
represent the House in the Commission on Appointments. They were: 2. Hon. Antonio V. Cuenco LDP
3. Hon. Rogaciano M. Mercado LDP
1. Hon. Miguel Romero LP (Liberal Party) 4. Hon. Alawadin T. Bandon, Jr. LDP
2. Hon. Antonio V. Cuenco LB-Panaghiusa 5. Hon. Jose L. Cabochan LDP
3. Hon. Rogaciano Mercado LB (Lakas ng Bayan) 6. Hon. Carlos R. Imperial LDP
4. Hon. Raul Daza LP 7. Hon. Maria Clara L. Lobregat LDP
5. Hon. Alawadin T. Bandon Jr. PDP-Laban 8. Hon. Natalio M. Beltran, Jr. LDP
6. Hon. Jose Cabochan PDP-Laban 9. Hon. Carmelo J. Locsin LDP
7. Hon. Lorna L. Verano-Yap LP 10. Hon. Luis C. Singson LDP
8. Hon. Carlos R. Imperial IND 11. Hon. Lorna L. Verano-Yap LP
9. Hon. Ma. Clara L. Lobregat IND
10. Hon Natalio M. Beltran, Jr. LB/Unido/NP (p. 122, Rollo.)
11. Hon. Carmelo J. Locsin PDP-Laban/LB
Congressman Ablan, KBL, was retained as the 12th member
(pp. 115-116, Rollo.) representing the House minority.

On September 22, 1987, upon nomination of the Minority Floor Leader, On February 1, 1989, Congresswoman Coseteng and her party, the
the House elected Honorable Roque Ablan, Jr., KBL, as the twelfth KAIBA, filed this Petition for Extraordinary Legal Writs (which may be
member of the Commission on Appointments, representing the considered as a petition for quo warranto and injunction) praying this
Coalesced Minority in the House. Court to declare as null and void the election of respondent Ablan,
Verano-Yap, Romero, Cuenco, Mercado, Bandon, Cabochan, Imperial,
A year later, on September 16, 1988, the "Laban ng Demokratikong Lobregat, Beltran, Locsin, and Singson, as members of the Commission
Pilipino" (LDP, for brevity) was organized as a political party. As 158 out on Appointments, to enjoin them from acting as such and to enjoin also
of 202 members of the House of Representatives formally affiliated with the other respondents from recognizing them as members of the
the LDP, the House committees, including the House representation in Commission on Appointments on the theory that their election to that
the Commission on Appointments, had to be reorganized. Commission violated the constitutional mandate of proportional
representation because:
On October 8, 1988, petitioner Coseteng wrote a letter to Speaker
Ramon Mitra requesting that as representative of KAIBA, she be 1) the New Majority (158 LDP members out of the 202 members of the
appointed as a member of the Commission on Appointments and House House) is entitled to only nine (9) seats out of the twelve to be filled by
Electoral Tribunal (p. 15, Rollo). Her request was endorsed by nine (9) the House (p. 29, Rollo);
congressmen, namely, Hon. Lally Laurel-Trinidad, Bonifacio Gillego, Luz
Reyes Bakunawa, Gerardo Cabochan, Jose D. Aspiras, Oscar Santos, 2) the members representing the political parties, or coalitions thereof,
Eduardo N. Joson, Antonio H. Cerilles and Isacio Pelaez. must be nominated by their respective political parties or coalitions;

On December 5, 1988, the House of Representatives, on motion of the 3) the nomination and election of respondent Verano-Yap by the
Majority Floor Leader and over the objection of Cong. Raul A. Daza, LP, respondents as representative of the minority was clearly invalid (p.
revised the House majority membership in the Commission on 31, Rollo); and
Appointments to conform with the new political alignments by replacing
Rep. Raul A. Daza, LP, with Rep. Luis C. Singson, LDP, as follows: 4) that similarly invalid was the retention of respondent Ablan as Minority
member in the Commission because he was neither nominated nor
elected as such by the minority party or parties in the House (p. The issue here is whether the members of the House in the Commission
31, Rollo). on Appointments were chosen on the basis of proportional representation
from the political parties therein as provided in Section 18, Article VI of
Petitioner Coseteng further alleged that she is qualified to sit in the the 1987 Constitution which reads:
Commission on Appointments as a representative of the Minority
because she has the support of nine (9) other congressmen and Sec. 18. There shall be a Commission on Appointments
congresswomen of the Minority (p. 31, Rollo). consisting of the President of the Senate, as ex oficio Chairman,
twelve Senators, and twelve Members of the House of
In their collective Comment, the respondents House of Representatives, Representatives elected by each House on the basis
the Speaker, the Majority Floor Leader, the members of the Commission of proportional representation from the political parties and parties
on Appointments including Congressman Roque R. Ablan, but excluding or organizations registered under the party-list system
Congresswoman Lorna Verano-Yap (who filed a separate Comment), represented therein. The chairman of the Commission shall not
alleged: (1) that the legality of the reorganization of the Commission on vote, except in case of a tie. The Commission shall act on all
Appointments is a political question, hence, outside the jurisdiction of this appointments submitted to it within thirty session days of the
Court to decide, and (2) that in any case, the reorganization was "strictly Congress from their submission. The commission shall rule by a
in consonance with Section 18, Article VI of the 1987 Constitution" i.e., on majority vote of all the Members. (Art. VI, 1987 Constitution.)
the basis of proportional representation of the political parties,
considering the majority coalition "as a form of a political party" (pp. 115, After deliberating on the petition and the comments of the respondents,
118, Rollo). They further alleged that as of March 3, 1989, 160 members we hold that the petition should be dismissed, not because it raises a
of the House (including 26 former Liberals) had expressly renounced in political question, which it does not, but because the revision of the
writing their respective political party affiliations and formally affiliated with House representation in the Commission on Appointments is based on
the LDP leaving only 15 Liberals in the House (p. 119, Rollo). After its
i•t•c -aüsl proportional representation of the political parties therein as provided in
petition for registration as a political party was granted on August 28, Section 18, Article VI of the 1987 Constitution.
1989 by the First Division of the COMELEC) and affirmed on November
23, 1989 by the COMELEC en banc, the LDP become the new Majority in The "political question" issue was settled in Daza vs. Singson, G.R. No.
the House. They finally argued that as KAIBA is part of the Coalesced 86344, December 21, 1989, where this Court ruled that "the legality, and
Majority which supports the administration of President Corazon C. not the wisdom, of the manner of filling the Commission on Appointments
Aquino, not of the minority, petitioner is bound by the choice of the as prescribed by the Constitution" is justiciable, and, "even if the question
Coalesced Majority of the members who would sit in the Commission on were political in nature, it would still come within our powers of review
Appointments. under the expanded jurisdiction conferred upon us by Article VIII, Section
1, of the Constitution, which includes the authority to determine whether
Representative Lorna Verano-Yap, in her comment alleged that the grave abuse of discretion amounting to excess or lack of jurisdiction has
petitioner has no better light than those already selected, to be chosen as been committed by any branch or instrumentality of the government."
a member of the Commission on Appointments because: (1) the
Constitution was not violated in electing Yap and eleven (11) other House The composition of the House membership in the Commission on
members to the Commission on Appointments; (2) respondent Yap is a Appointments was based on proportional representation of the political
rightful incumbent; and (3) petitioner's claim to a seat on the Commission parties in the House. There are 160 members of the LDP in the House.
on Appointments is without legal and factual basis (pp. 217-218, Rollo). They represent 79% of the House membership (which may be rounded
out to 80%). Eighty percent (80%) of 12 members in the Commission on
The Commission on Appointments took a neutral stand on the petition as Appointments would equal 9.6 members, which may be rounded out to
the issues involved may touch on the validity of its organization and the ten (10) members from the LDP. The remaining two seats were
legality of the entitlement of the LDP or the LP to representation, which apportioned to the LP (respondent Lorna Verano-Yap) as the next largest
are raised in the case of Daza vs. Singson, G.R. No. 86344, then pending party in the Coalesced Majority and the KBL (respondent Roque Ablan)
before this Court (pp. 195-198, Rollo). as the principal opposition party in the House. There is no doubt that this
apportionment of the House membership in the Commission on Republic of the Philippines
Appointments was done "on the basis of proportional representation of SUPREME COURT
the political parties therein." Manila

The other political parties or groups in the House, such as petitioner's EN BANC
KAIBA (which is presumably a member also of the Coalesced Majority),
are bound by the majority's choices. Even if KAIBA were to be considered G.R. No. 106971 October 20, 1992
as an opposition party, its lone member (petitioner Coseteng) represents
only .4% or less than 1% of the House membership, hence, she is not TEOFISTO T. GUINGONA, JR., AND LAKAS-NATIONAL UNION OF
entitled to one of the 12 House seats in the Commission on CHRISTIAN DEMOCRATS (LAKAS-NUCD), petitioners,
Appointments. To be able to claim proportional membership in the vs.
Commission on Appointments, a political party should represent at least NEPTALI A. GONZALES, ALBERTO ROMULO and WIGBERTO E.
8.4% of the House membership, i.e., it should have been able to elect at TAÑADA, respondents.
least 17 congressmen or congresswomen.
NATIONALIST PEOPLE'S COALITION, petitioner-in-intervention.
The indorsements of the nine (9) congressmen and congresswomen in
favor of the petitioner's election to the Commission are inconsequential
CAMPOS, JR., J.:
because they are not members of her party and they signed identical
indorsements in favor of her rival, respondent Congresswoman Verano-
Yap. This is a petition for Prohibition to prohibit respondents Senator Alberto
Romulo and Wigberto Tañada from sitting and assuming the position of
members of the Commission on Appointments and to prohibit Senators
There is no merit in the petitioner's contention that the House members in
Neptali Gonzales, as ex-officio Chairman, of said Commission from
the Commission on Appointments should have been nominated and
recognizing and allowing the respondent senators to sit as members
elected by their respective political parties. The petition itself shows that
thereof.
they were nominated by their respective floor leaders in the House. They
were elected by the House (not by their party) as provided in Section 18,
Article VI of the Constitution. The validity of their election to the As a result of the national elections held last May 11, 1992, the Senate is
Commission on Appointments — eleven (11) from the Coalesced Majority composed of the following members or Senators representing the
and one from the minority — is unassailable. respective political affiliations:

WHEREFORE, the petition is dismissed for lack of merit. Costs against LDP –– 15 senators
the petitioner. NPC –– 5 senators
LAKAS-NUCD –– 3 senators
LP-PDP-LABAN –– 1 senator
SO ORDERED.
Applying the mathematical formula agreed to by the parties as follow as:

No. of senators of a political party x 12 seats


––––––––––––––––––––––––––
Total no. of senators elected
the resulting composition of the senate based on the rule of proportional membership of Senators Alberto Romulo as the eight senator elected by
representation of each political party with elected representatives in the the LDP, and Wigberto E. Tañada, as the lone member representing the
Senate, is as follows: LP-PDP-LABAN, in the Commission on Appointments, on the ground that
the proposed compromise of Senator Tolentino was violative of the rule
Political Party/ Proportional of proportional representation, and that it is the right of the minority
political parties in the Senate, consistent with the Constitution, 4 to
Political Coalition Membership Representatives combine their fractional representation in the Commission on
Appointments to complete one seat therein, and to decide who, among
the senators in their ranks, shall be additionally nominated and elected
LDP 15 7.5 members
thereto.
NPC 5 2.5 members
LAKAS-NUCD 3 1.5 members
LP-PDP-LABAN 1 .5 members Section 18 Article VI of the Constitution of 1987 provides fro the creation
of a Commission on Appointments and the allocation of its membership,
as follows:
At the organization meeting of the Senate held on August 27, 1992,
Senator Romulo in his capacity as Majority Floor Leader nominated, for
and in his behalf of the LDP, eight (8) senators for membership in the Sec. 18. There shall be a Commission on Appointments consisting of the
Commission on Appointments, namely Senators Angara, Herrera, President of the Senate as ex-officio Chairman, twelve members of the
Alvarez, Aquino, Mercado, Ople, Sotto and Romulo. The nomination of House of Representatives, elected by each house on the basis of
the eight senators 2 was objected to by Petitioner, Senator Guingona, as proportional representation from the political parties or organizations
Minority Floor Leader, and Senator John Osmeña, in representation of registered under the party list system represented therein. The Chairman
the NPC. To resolve the impasse, Senator Arturo Tolentino proposed a of the Commission shall not vote except in case of a tie. The Commission
compromise to the effect that Senate elect 3 shall act on all appointments submitted to it within the session days of the
Congress from their submission of all the members. (Emphasis supplied.)
. . . 12 members to the Commission on Appointments, eight coming from
the LDP, two coming from NPC, one coming from the Liberal Party, with Based on the mathematical computation of proportional representation of
the understanding that there are strong reservations against this the various political parties with elected senators in the senators in the
proportion of these numbers so that if later on in action in the Supreme Senate, each of these political parties is entitled to a fractional
Court, if any party is found to have an excess in representation, and if membership in the Commission on Appointments as stated in the first
any party is found to have a deficiency in representation, that party will be paragraph of this decision.5 Each political party has a claim to an extra
entitled to nominate and have elected by this body its additional half seat, and the election of respondents Senator Romulo and Senator
representatives. Tañada to the Commission on Appointments by the LDP majority is
precisely questioned by the petitioners because, according to them, it
unduly increased the membership of LDP and LP-PDP-LABAN in the
The proposed compromise above stated was a temporary arrangement
commission and reduced the membership of the LAKAS-NUCD and NPC
and, inspite of the objections of Senator Guingona and Osmeña, to
correspondingly. In view of the conflicting claims of each of the political
enable the Commission on Appointments to be organized by the election
parties/coalition duly represented in the Senate to a fractional
of its members, it was approved. The elected members consisted of eight
membership in the Commission on Appointments, the election of
LDP, one LP-PDP-LABAN, two NPC and one LAKAS-NUCD.
respondents Senator Romulo and Senator Tañada has become
controversial and its validity questionable. Hence, this petition. It has
On September 23, 1992, Senator Teofisto Guingona. Jr., in his behalf been established that the legality of filling up the membership of the
and in behalf of Lakas-National Union of Christian Democrats (LAKAS- Commission on Appointments is a justiciable issue and not a political
NUCD), filed a petition for the issuance of a writ of prohibition to prohibit question. 6
the respondent Senate President Neptali Gonzales, as ex-officio
Chairman of the Commission on Appointments, from recognizing the
We deem it necessary to resolve the respondents' argument as to the It is an established fact to which all the parties agree that the
nature of the instant petition. There is no doubt that the issues involved mathematical representation of each of the political parties represented in
herein are constitutional in nature and are of vital importance to our the Senate is as follows:
nation. They involve the interpretation of Section 18, Article VI of the
Constitution which creates a Commission on Appointments. Where LDP –– 7.5
constitutional issues are properly raised in the context of the alleged NPC –– .5
facts, procedural questions acquire a relatively minor significance 7 and LAKAS-NUCD –– 2.5
the "transcendental importance to the public of the case demands that LP-PDP-LABAN –– 1.5
they be settled promptly and definitely brushing aside . . . technicalities of
procedure". 8 It is also a fact accepted by all such parties that each of them entitled to a
fractional membership on the basis of the rule on proportional
For the purpose of resolving the case at bar, the instant petition may be representation of each of the political parties. A literal interpretation of
regarded as one of prohibition 9 wherein the Senate is claimed to have Section 18 of Article VI of the Constitution leads to no other manner of
acted without or in excess of its jurisdiction when it designated application than as above. The problem is what to do with the fraction of
respondent Senator Romulo as eighth member of the Commission on .5 or 1/2 to which each of the parties is entitled. The LDP majority in the
Appointments, upon nomination by the LDP, and respondent Senator Senate converted a fractional half membership into a whole membership
Tañada as LP nominee, notwithstanding, that, in both instance, LDP and of one senator by adding one half or .5 to 7.5 to be able to elect Senator
LP are each entitled only to "half a member". In the alternative, the Romulo. In so doing one other party's fractional membership was
petition may be regarded as one for mandamus, 10 in which it is claimed correspondingly reduced leaving the latter's representation in the
that the LAKAS-NUCD and NPC were unlawfully excluded from the use Commission on Appointments to less than their proportional
and enjoyment of a right or office to which each is entitled. Considering representation in the Senate. This is clearly a violation of Section 18
the importance of the case at bar and in keeping with the Court's duty because it is no longer in compliance with its mandate that membership
under the Constitution to keep the other branches of the government in the Commission be based on the proportional representation of the
within the limits of the Constitution and the laws of the land, this Court political parties. The election of Senator Romulo gave more
has decided to brush aside legal technicalities of procedure and take representation to the LDP and reduced the representation of one political
cognizance of this case. party — either the LAKAS-NUCD or the NPC.

The issues for determination by this Court may be stated as follows: On the claim of Senator Tañada that under the ruling in the case of
Senator Lorenzo Tañada, 11 and the cases of Senator Juan Ponce
1) Whether the election of Senators Alberto Romulo and Wigberto E. Enrile, he has a right to be elected as a member of the Commission on
Tañada as members of the Commission on Appointments is in Appointments because of: (a) the physical impossibility of dividing a
accordance with the provision of Section 18 of Article VI of the 1987 person, so that the fractional membership must be rounded up into one
Constitution. senator; (b) being the sole elected senator of his party, his party is
entitled to be represented in the Commission on Appointments; (c) having
2) If said membership of the respondent senators in the Commission is been elected senator, rounding up into one full senator his fractional
violative of the Constitutional provision, did the respondent Senate act in membership is consistent with the provision and spirit of the Constitution
grave abuse of discretion in electing the respondent Senators? and would be in full accord with the principle of republicanism that
emphasizes democracy.
3) If there was grave abuse of discretion by respondent Senate, acting
through the LDP majority, should a writ of prohibition enjoining, The cases of the two former senators mentioned cannot be invoked as a
prohibiting and restraining respondent Senators from sitting as members precedent in support of incumbent Senator Tañada's claim to a
of and participating in the proceeding of the Commission on membership in the present Commission on Appointments. In the time of
Appointments be issued? his illustrious father, out of 24 elected senators in the upper chamber of
Congress, 23 belonged to the Nacionalista Party, while Senator Lorenzo
Tañada, who belonged to the Citizen's Party, was the lone opposition. By minority, who by the same token, suffers a diminution of its rightful
force of circumstance, he became a member of the Commission on membership in the Commission.
Appointments because he alone represented the minority party. Had
there been another senator belonging to a party other than the Citizens' Section 18, also assures representation in the Commission on
Party, this problem of who should sit as the sole representative of the Appointments of any political party who succeeds in electing members to
opposition party would have arisen. In the case of Senator Ponce Enrile, the Senate, provided that the number of senators so elected enables it to
there were two senators elected from the opposition party, namely, he put a representative in the Commission on Appointments. Drawing from
and Senator Estrada. Applying the rule of proportional representation the ruling in the case of Coseteng vs. Mitra, Jr., 12 a political party must
mentioned earlier (see formula), the opposition was entitled to full have at least two senators in the Senate to be able to have a
member (not a fractional membership). Senator Enrile was thus legally representatives in the Commission on Appointments, so that any number
nominated and elected as the minority representative in the Senate. In less than 2 will not entitle such a party a membership in the Commission
the present case, if there were a political parties in the Senate, and We on Appointments. This applies to the respondent Senator Tañada.
follow Senators Tañada's claim that he is entitled to full membership as
lone representative of his party, We the anomaly of having 13 senators, We lay down the following guidelines accordingly:
where the Constitution allows only twelve (12) in the Commission on
Appointments.
1) In the Senate, political party or coalition must have at least two duly
elected senators for every seat in the Commission on Appointments.
We find the respondents' claim to membership in the Commission on
Appointments by nomination and election of the LDP majority in the
2) Where there are more than two political parties represented in the
Senate as not in accordance with Section 18 of Article VI of the 1987
Senate, a political party/coalition with a single senator in the Senate
Constitution and therefore violative of the same because it is not in
cannot constitutionally claims seat in the Commission.
compliance with the requirements that twelve senators shall be elected
on the basis of proportional representation of the resulting fractional
membership of the political parties represented therein. To disturb the We do not agree with respondents' claim that it is mandatory to elect 12
resulting fractional membership of the political parties in the Commission Senators to the Commission on Appointments. The Constitution does not
on Appointments by adding together two halves to make a whole is a contemplate that the Commission on Appointments must necessarily
breach of the rule on proportional representation because it will give the include twelve (12) senators and twelve (12) members of the House of
LDP an added member in the Commission by utilizing the fractional Representatives. What the Constitution requires is that there be at least a
membership of the minority political party, who is deprived of half a majority of the entire membership. Under Section 18, the Commission
representation. shall rule by majority vote of all the members and in Section 19, the
Commission shall meet only while congress is in session, at the call of its
Chairman or a majority of all its members "to discharge such powers and
The provision of Section 18 on proportional representation is mandatory
functions herein conferred upon it". Implementing the above provisions of
in character and does not leave any discretion to the majority party in the
the Constitution, Section 10 Chapter 3 of the Rules of the Commission on
Senate to disobey or disregard the rule on proportional representation;
Appointments, provides as follows:
otherwise, the party with a majority representation in the Senate or the
House of Representatives can by sheer force of number impose its will
on the hapless minority. By requiring a proportional representation in the Sec. 10. — Place of Meeting and Quorum: The Commission shall meet at
Commission on Appointments, Section 18 in effect works as a check on either the session hall of the Senate or the House of Representatives
the majority party in the Senate and helps to maintain the balance of upon call of the Chairman or as the Commission may designate. The
power. No party can claim more than what it is entitled to under such rule. presence of at least thirteen (13) members is necessary to constitute a
To allow it to elect more than its proportional share of members is to quorum. Provided, however, that at least four (4) of the members
confer upon such a party a greater share in the membership in the constituting the quorum should come from either house. . . .
Commission on Appointments and more power to impose its will on the
It is quite evident that the Constitution does not require the election and is hereby issued ordering the said respondents Senator Romulo and
presence of twelve (12) senators and twelve (12) members of the House Senator Tañada to desist from assuming, occupying and discharging the
of Representatives in order that the Commission may function. Other functions of members of the Commission on Appointments; and ordering
instances may be mentioned of Constitutional collegial bodies which the respondents Senate President Neptali Gonzales, in his capacity as
perform their composition is expressly specified by the Constitution. ex-officio Chairman of the Commission on Appointments, to desist from
Among these are the Supreme recognizing the membership of the respondent Senators and from
Court, 13 Civil Service Commission, 14 Commission on allowing and permitting them from sitting and participating as members of
Election, 15 Commission on Audit. 16 They perform their function so long said Commission.
and there is the required quorum, usually a majority of its membership.
The Commission on Appointments may perform its functions and transact SO ORDERED.
it s business even if only ten (10) senators are elected thereto as long as
a quorum exists.

It may also be mentioned that while the Constitution provides for equal
membership from the Senate and the House of Representatives in the
Commission on Appointments, the senators on the one hand, and the
Republic of the Philippines
representatives, on the other, do not vote separately but jointly, and
SUPREME COURT
usually along party lines. Even if Senator Tañada would not be able sit in
Manila
the Commission on Appointments, the LP-LDP-LABAN would still be
represented in the Commission by congressman Ponce Enrile who has
become a member of the LP. On the other hand, there is nothing to stop EN BANC
any of the political party in order to fill up the two vacancies resulting from
this decision. G.R. No. 180055 July 31, 2009

Assuming that the Constitution intended that there be always twelve (12) FRANKLIN M. DRILON as President and in representation of the
senators in the Commission on Appointments, the instant situation cannot LIBERAL PARTY OF THE PHILIPPINES (LP), AND HON. JOSEPH
be rectified by the Senate in disregard of the rule on proportional EMILIO A. ABAYA, HON. WAHAB M. AKBAR, HON. MARIA EVITA R.
representation. The election of senator Romulo and Senator Tañada as ARAGO, HON. PROCESSO J. ALCALA, HON. ROZZANO RUFINO
members of the Commission on Appointments by the LDP majority in the BIAZON, HON. MARY MITZI CAJAYON, HON. FREDENIL H. CASTRO,
Senate was clearly a violation of Section 18 of Article VI of the 1987 HON. GLENN ANG CHONG, HON. SOLOMON R. CHUNGALAO, HON.
Constitution. Their nomination and election by the LDP majority by sheer PAUL RUIZ DAZA, HON. ANTONIO A. DEL ROSARIO, HON. CECILIA
force of superiority in numbers during the Senate organization meeting of S. LUNA, HON. MANUEL M. MAMBA, HON. HERMILANDO I.
August 27, 1992 was done in grave abuse of discretion. Where power is MANDANAS, HON. ALVIN SANDOVAL, HON. LORENZO R. TAÑADA
exercised in a manner inconsistent with the command of the Constitution, III, HON. REYNALDO S. UY, HON. ALFONSO V. UMALI JR., HON.
and by reason of numerical strength, knowingly and not merely LIWAYWAY VINZONS-CHATO, Petitioners,
inadvertently, said exercise amounts to abuse of authority granted by law vs.
and grave abuse of discretion is properly found to exist. HON. JOSE DE VENECIA JR. in his official capacity as Speaker of
the House of Representatives; HON. ARTHUR D. DEFENSOR, SR., in
In the light of the foregoing and on the basis of the applicable rules and his official capacity as Majority Floor Leader of the House of
jurisprudence on the matter before this Court, We declare the election of Representatives, HON. MANUEL B. VILLAR, in his official capacity
Senator Alberto Romulo and Senator Wigberto Tañada as members of as ex-officio Chairman of the Commission on Appointments, ATTY.
the Commission on Appointments as null and void for being in violation of MA. GEMMA D. ASPIRAS, in her official capacity as Secretary of the
the rule on proportional representation under Section 18 of Article VI of Commission on Appointments, HON. PROSPERO C. NOGRALES,
the 1987 Constitution of the Philippines. Accordingly, a writ of prohibition HON. EDGARDO C. ZIALCITA, HON. ABDULLAH D. DIMAPORO,
HON. JOSE CARLOS V. LACSON, HON. EILEEN R. ERMITA-BUHAIN, The members of the contingent of the House of Representatives in the
HON. JOSE V. YAP, HON. RODOLFO T. ALBANO III, HON. EDUARDO CA and their respective political parties were as follows:
R. GULLAS, HON. CONRADO M. ESTRELLA III, HON. RODOLFO
"OMPONG" PLAZA, HON. EMMYLOU J. TALIÑO-MENDOZA and Rep. Prospero C. Nograles Lakas-CMD
HON. EMMANUEL JOEL J. VILLANUEVA, in their individual official Rep. Eduardo C. Zialcita Lakas-CMD
capacities as "elected" members of the Commission on Rep. Abdullah D. Dimaporo Lakas-CMD
Appointments, Respondents. Rep. Jose Carlos V. Lacson Lakas-CMD
Rep. Eileen R. Ermita-Buhain Lakas-CMD
x - - - - - - - - - - - - - - - - - - - - - - -x Rep. Jose V. Yap Lakas-CMD
Rep. Rodolfo T. Albano III KAMPI
G.R. No. 183055 July 31, 2009 Rep. Eduardo R. Gullas KAMPI
Rep. Rodolfo "Ompong" G. Plaza NPC
Rep. Conrado M. Estrella NPC
SENATOR MA. ANA CONSUELO A.S. MADRIGAL, Petitioner,
Rep. Emmylou J. Taliño-Mendoza NP
vs.
Rep. Emmanuel Joel J. Villanueva CIBAC Party List
SENATOR MANUEL VILLAR in his capacity as Senate President and
Ex-Officio Chairman of the Commission on Appointments,
REPRESENTATIVE PROSPERO NOGRALES in his capacity as the In the second week of August 2007, petitioners in the first petition, G.R.
Speaker of the House of Representatives, and THE COMMISSION No. 180055, went to respondent then Speaker Jose de Venecia to ask for
ON APPOINTMENTS, Respondents. one seat for the Liberal Party in the CA. Speaker Jose de Venecia merely
said that he would study their demand.1
DECISION
During the session of the House of Representatives on September 3,
2007, petitioner in the first petition, Representative Tañada, requested
CARPIO MORALES, J.:
from the House of Representatives leadership2 one seat in the CA for the
Liberal Party.3 To his request, Representative Neptali Gonzales
In August 2007, the Senate and the House of Representatives elected II4 begged the indulgence of the Liberal Party "to allow the Legal
their respective contingents to the Commission on Appointments (CA). Department to make a study on the matter."5

The contingent in the Senate to the CA was composed of the following In a separate move, Representative Tañada, by letter of September 10,
senators with their respective political parties: 2007, requested the Secretary General of the House of Representatives
the reconstitution of the House contingent in the CA to include one seat
Sen. Maria Ana Consuelo A.S. Madrigal PDP-Laban for the Liberal Party in compliance with the provision of Section 18, Article
Sen. Joker Arroyo KAMPI VI of the Constitution.6 Representative Tañada also brought the matter to
Sen. Alan Peter Cayetano Lakas-CMD the attention of then Speaker De Venecia, reiterating the position that
Sen. Panfilo Lacson UNO since there were at least 20 members of the Liberal Party in the 14th
Sen. Jinggoy Ejercito Estrada PMP Congress, the party should be represented in the CA. 7
Sen. Juan Ponce Enrile PMP
Sen. Loren Legarda NPC As of October 15, 2007, however, no report or recommendation was
Sen. Richard Gordon Lakas-CMD proffered by the Legal Department, drawing Representative Tañada to
Sen. Mar Roxas LP request a report or recommendation on the matter within three days. 8
Sen. Lito Lapid Lakas-CMD
Sen. Miriam Defensor-Santiago PRP
In reply, Atty. Grace Andres of the Legal Affairs Bureau of the House of
Representatives informed Representative Tañada that the department
was constrained to withhold the release of its legal opinion because the a. Immediately upon the filing of the instant Petition, issue a
handling lawyer was directed to secure documents necessary to establish Temporary Restraining Order and/or a Writ of Preliminary
some of the members’ party affiliations. 9 Prohibitory and Mandatory Injunction, enjoining all Respondents
and all persons under their direction, authority, supervision, and
Hence spawned the filing on October 31, 2007 of the first petition by control from further proceeding with their actions relating to the
petitioner former Senator Franklin M. Drilon (in representation of the illegal and unconstitutional constitution of the Commission on
Liberal Party), et al., for prohibition, mandamus, and quo warranto with Appointments and to the unlawful exercise of its members’
prayer for the issuance of writ of preliminary injunction and temporary functions, contrary to the rule on proportional representation of
restraining order, against then Speaker De Venecia, Representative political parties with respect to the House of Representatives
Arthur Defensor, Sr. in his capacity as Majority Floor Leader of the House contingent in the said Commission;
of Representatives, Senator Manuel B. Villar in his capacity as ex officio
chairman of the CA, Atty. Ma. Gemma D. Aspiras in her capacity as b. After careful consideration of the merits of the case, render
Secretary of the CA, and the individual members of the House of judgment making the injunction permanent and ordering
Representatives contingent to the CA. 10 The petition in G.R. No. 180055 Respondents and all persons under their direction, authority,
raises the following issues: supervision, and control;

a. WHETHER THE LIBERAL PARTY WITH AT LEAST TWENTY (20) xxxx


MEMBERS WHO SIGNED HEREIN AS PETITIONERS, IS
CONSTITUTIONALLY ENTITLED TO ONE (1) SEAT IN THE c. Declare Respondents’ action in not allotting one (1) seat to
COMMISSION ON APPOINTMENTS. Petitioners null and void for being a direct violation of Section 18,
Article VI of the Constitution;
b. WHETHER THE HOUSE OF REPRESENTATIVES’ RESPONDENTS
HAVE COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING d. Declare the proceedings of the Commission on Appointments
TO LACK OR EXCESS OF JURISDICTION IN CONSTITUTING THE null and void, insofar as they violate the rule on proportional
COMMISSION ON APPOINTMENTS IN CONTRAVENTION OF THE representation of political parties in said Commission;
REQUIRED PROPORTIONAL CONSTITUTION BY DEPRIVING THE
LIBERAL PARTY OF ITS CONSTITUTIONAL ENTITLEMENT TO ONE e. Oust the affected respondents, whoever they are, who
(1) SEAT THEREIN. usurped, intruded into and have unlawfully held positions in the
Commission on Appointments and
c. WHETHER AS A RESULT OF THE GRAVE ABUSE OF DISCRETION
COMMITTED BY THE HOUSE OF REPRESENTATIVES f. Require Respondents to alter, reorganize, reconstitute and
RESPONDENTS, THE WRITS PRAYED FOR IN THIS PETITION BE reconfigure the composition of the Commission on Appointments
ISSUED NULLIFYING THE CURRENT COMPOSITION OF THE in accordance with proportional representation based on the
COMMISSION ON APPOINTMENTS, RESTRAINING THE CURRENT actual numbers of members belonging to duly accredited and
HOUSE OF REPRESENTATIVE MEMBERS FROM SITTING AND registered political parties who were elected into office during the
PARTICIPATING IN THE PROCEEDINGS OF THE COMMISSION ON last May 14, 2007 Elections by, at the very least, respecting and
APPOINTMENTS, OUSTING THE AFFECTED RESPONDENTS WHO allowing Congressman Alfonso V. Umali, Jr. as the duly
USURPED, INTRUDED INTO AND UNLAWFULLY HELD POSITIONS nominated Commission on Appointments member of the Liberal
IN THE COMMISSION ON APPOINTMENTS AND REQUIRING THE Party of the Philippines to sit therein as such. 12
RESPONDENTS TO RECONSTITUTE AND/OR REELECT THE
MEMBERS OF SAID COMMISSION.11 (Italics in the original)
Respondents Senator Villar and CA Secretary Aspiras filed their
Comment13 on December 6, 2007, moving for the dismissal of the petition
And it prays that this Court: on these grounds:
I. THE POWER TO ELECT MEMBERS TO THE COMMISSION ON 2. KAMPI has only one (1) member in the Senate and thus is not
APPOINTMENTS BELONGS TO EACH HOUSE OF CONGRESS entitled to a CA seat and yet it is represented in the CA.
PURSUANT TO THE CONSTITUTION. AS SUCH, THE PETITION IS
NOT DIRECTED AT THE HEREIN RESPONDENTS. 3. PRP has only one (1) member in the Senate and thus is not
entitled to a CA seat and yet it is represented in the CA.
II. THE CONSTITUTION DOES NOT REQUIRE THAT THE
COMMISSION MUST HAVE COMPLETE MEMBERSHIP IN ORDER 4. If Senators Richard Gordon and Pilar Juliana Cayetano are
THAT IT CAN FUNCTION. WHAT THE CONSTITUTION REQUIRES IS Independents, then Sen. Gordon cannot be a member of the CA
THAT THERE MUST AT LEAST BE A MAJORITY OF ALL THE as Independents cannot be represented in the CA even though
MEMBERS OF THE COMMISSION FOR IT TO VALIDLY CONDUCT there will be three Independents in the CA.
ITS PROCEEDINGS AND TRANSACT ITS BUSINESS.14(Emphasis in
the original) 5. If Sen. Alan Peter Cayetano is now NP, he still can sit in the
CA representing NP.20
Then Speaker De Venecia and Representative Defensor filed their
Comment and Opposition15 on February 18, 2008, moving too for the She also claimed that the composition of the House of
dismissal of the petition on these grounds: Representatives contingent in the CA violated the constitutional
requirement of proportional representation for the following reasons:
I. THE ACTS COMPLAINED OF DO NOT CONSTITUTE GRAVE
ABUSE OF DISCRETION THAT WILL JUSTIFY THE GRANT OF THE 1. Lakas-CMD currently has five (5) members in the Commission
EXTRAORDINARY WRIT OF MANDAMUS.16 on Appointments although it is entitled only to four (4)
representatives and thus [is] in excess of a member;
II. THE LIBERAL PARTY DOES NOT POSSESS THE REQUISITE
NUMBER OF MEMBERS THAT WOULD ENTITLE THE PARTY TO A 2. KAMPI currently has three (3) members in the Commission on
SEAT IN THE COMMISSION ON APPOINTMENTS. IT IS, Appointments although it is entitled only to two (2)
THEREFORE, NOT THE PROPER PARTY TO INSTITUTE THE representatives and thus is excess of a member;
INSTANT PETITION FOR QUO WARRANTO.17
3. Liberal Party is not represented in the Commission on
III. THE PETITIONERS FAILED TO EXHAUST THE REMEDIES Appointments although it is entitled to one (1) nominee; and
AVAILABLE TO THEM.18
4. Party-List CIBAC has a representative in the Commission on
IV. THE CONFLICTING CLAIMS OF THE PARTIES AS TO THE Appointments although it only has two members in the House of
AFFILIATION OF THE MEMBERS NEED TO BE SETTLED IN A Representatives and therefore [is] not entitled to any seat. 21
TRIAL.19 (Emphasis in the original)
Senator Madrigal thus requested the reorganization of the membership of
Meantime, Senator Ma. Ana Consuelo A.S. Madrigal of PDP-Laban, by the CA and that, in the meantime, "all actions of [the] CA be held in
separate letters of April 17, 2008 to Senator Villar and Speaker Prospero abeyance as the same may be construed as illegal and
Nograles, claimed that the composition of the Senate contingent in the unconstitutional."22
CA violated the constitutional requirement of proportional representation
for the following reasons:
By letter of May 13, 2008, Senator Madrigal again wrote Senator Villar as
follows:
1. PMP has two representatives in the CA although it only has
two members in the Senate and thus [is] entitled only to one (1)
seat.
Today, I was advised that the Committee on Budget and Management of elected them, namely the Senate and/or the House," I have given
Senator Mar Roxas has endorsed the ad interim appointment of Rolando instructions to transmit the original copies of your letters to the Senate
G. Andaya as Secretary of the Department of Budget and Management Secretary for their immediate inclusion in the Order of Business of the
for approval by the CA in the plenary. I believe it is imperative that the Session of the Senate so that your concerns may be addressed by the
serious constitutional questions that I have raised be settled before the Senate in caucus and/or in plenary.27 (Emphasis and underscoring
plenary acts on this endorsement by the Committee on Budget and supplied)
Management. Otherwise, like Damocles’ sword, a specter of doubt
continues to be raised on the validity of actions taken by the CA and its Undaunted, Senator Madrigal, by letter of June 2, 2008 addressed to
committees.23 Senator Villar, reiterated her request that all actions of the CA be held in
abeyance pending the reorganization of both the Senate and House of
Still later or on May 19, 2008, Senator Madrigal sent another letter to Representatives contingents.28
Senator Villar declaring that she "cannot in good conscience continue to
participate in the proceedings of the CA, until such time as [she] get[s] a Senator Madrigal thereafter filed on June 13, 2008 the second
response to [her] letters and until the constitutional issue of the CA’s petition, G.R. No. 183055, for prohibition and mandamus with prayer for
composition is resolved by the leadership of the Commission," 24 and that issuance of temporary restraining order/writ of preliminary injunction
without any such resolution, she would be forced to invoke Section 20 of against Senator Villar in his capacity as Senate President and Ex-Officio
the CA rules against every official whose confirmation would be Chairman of the CA, Speaker Nograles, and the CA, 29alleging that
submitted to the body for deliberation.25 respondents committed grave abuse of discretion amounting to lack or
excess of jurisdiction
The CA Committee on Rules and Resolutions, by letter-comment of May
26, 2008, opined that the CA has neither the power nor the discretion to A. . . . IN FAILING TO COMPLY WITH THE CONSTITUTIONALLY
reject a member who is elected by either House, and that any complaints REQUIRED PROPORTIONAL PARTY REPRESENTATION OF THE
about the election of a member or members should be addressed to the MEMBERS OF THE COMMISSION ON APPOINTMENTS;
body that elected them.26
B. . . . IN CONTINUOUSLY CONDUCTING HEARINGS AND
By letter of May 28, 2008, Senator Villar advised Senator Madrigal as PROCEEDINGS ON THE APPOINTMENTS DESPITE THE
follows: COMMISSION ON APPOINTMENTS’ UNCONSTITUTIONAL
COMPOSITION WHICH MUST BE PROHIBITED BY THIS
xxxx HONORABLE COURT; and

Noting your position that you will not continue to participate in the C. . . . IN FAILING, DESPITE REPEATED DEMANDS FROM
proceedings of the CA … "until the constitutional issue of the CA’s PETITIONER, TO RE-ORGANIZE THE COMMISSION ON
composition is resolved by the leadership of the Commission" x x x, the APPOINTMENTS IN ACCORDANCE WITH THE MANDATED
Secretary of the Commission, upon my instructions, transmitted the same PROPORTIONAL PARTY REPRESENTATION OF THE 1987
to the CA Committee on Rules and Resolutions. It was my intention to CONSTITUTION, WHICH REQUIREMENT MUST BE ENFORCED BY
have the Committee study and deliberate on the matter and to THIS HONORABLE COURT.30 (Emphasis in the original)
recommend what step/s to take on your request that "all actions of the
Commission be held in abeyance" x x x. She thus prayed for the

In view however, of your manifestation during the May 26, 2008 meeting 1. . . . issu[ance of] a temporary restraining order/a writ of
of the CA Committee on Rules and Resolutions, and of the preliminary injunction to enjoin Respondents from proceeding
written comment of Sen. Arroyo that "If there is a complaint in the with their illegal and unlawful actions as officials and members of
election of a member or members, it shall be addressed to the body that
the Commission on Appointments which composition is Petitioner failed to observe the doctrine of primary jurisdiction or
unconstitutional, pending resolution of the instant Petition; prior resort. Each House of Congress has the sole function of
reconstituting or changing the composition of its own contingent to
2. Declar[ation that] the composition of the Commission on the CA.
Appointments [is] null and void insofar as it violates the
proportional party representation requirement mandated by III.
Article VI, Section 18 of the 1987 Philippine Constitution;
Petitioner is estopped.
3. Issu[ance of] a Writ of Prohibition against respondents Senate
President Manuel Villar, Speaker Prospero Nograles and IV.
Secretary Gemma Aspiras to desist from further proceeding with
their illegal and unlawful actions as officers of the Commission on Presumption of regularity in the conduct of official functions.
Appointments, the composition of which is null and void for being
violative of the proportional party representation requirement
V.
under Article VI, Section 18 of the 1987 Philippine Constitution;
and
The extraordinary remedies of Prohibition and Mandamus and the
relief of a TRO are not available to the Petitioner. 34 (Emphasis in the
4. Issu[ance of] a Writ of Mandamus commanding respondents
original; underscoring supplied)
Senate President Manuel Villar, Speaker Prospero Nograles and
Secretary Gemma Aspiras to reorganize and reconstitute the
Commission on Appointments in accordance with the 1987 In his Comment and Opposition35 filed on September 3, 2008, Speaker
Constitution.31 Nograles proffered the following arguments:

The Court consolidated G.R. No. 18005532 and G.R. No. 183055 on July A. WITH RESPECT TO THE HOUSE OF REPRESENTATIVES, THE
1, 2008. PETITIONS HAVE ALREADY BECOME MOOT AND ACADEMIC
UPON THE ELECTION OF REPRESENTATIVE ALFONSO V. UMALI,
JR., MEMBER OF THE LIBERAL PARTY, TO THE HOUSE
Petitioners in the first petition, G.R. No. 180055, later filed on August 15,
CONTINGENT TO THE COMMISSION ON APPOINTMENTS.36
2008 a Motion with Leave of Court to Withdraw the Petition, 33 alleging
that with the designation of Representative Alfonso V. Umali, Jr. of the
Liberal Party as a member of the House of Representatives contingent in B. THE ACTS COMPLAINED OF DO NOT CONSTITUTE GRAVE
the CA in replacement of Representative Eduardo M. Gullas of KAMPI, ABUSE OF DISCRETION THAT WILL JUSTIFY THE ASSUMPTION OF
their petition had become moot and academic. JURISDICTION BY THE

In his Comment of August 19, 2008 on the second petition, respondent HONORABLE COURT AND THE GRANT OF THE EXTRAORDINARY
Senator Villar proffered the following arguments: WRITS OF MANDAMUS AND PROHIBITION.37

I. C. THE REMEDY OF THOSE WHO SEEK TO RECONSTITUTE THE


HOUSE CONTINGENT TO THE COMMISSION ON APPOINTMENTS
RESTS, IN THE FIRST INSTANCE, WITH THE HOUSE OF
Petitioner has no standing to file [the] petition.
REPRESENTATIVES.38
II.
D. CONSIDERING THE AFOREMENTIONED FACTS AND "The Constitution expressly grants to the House of Representatives the
JURISPRUDENCE, IT IS SUBMITTED THAT SENATOR MADRIGAL prerogative, within constitutionally defined limits, to choose from among
HAS NO STANDING TO PURSUE THE INSTANT CASE. its district and party-list representatives those who may occupy the seats
allotted to the House in the HRET and the CA. Section 18, Article VI of
E. THE PETITION IS NOT ACCOMPANIED BY A VERIFICATION AND the Constitution explicitly confers on the Senate and on the House the
CERTIFICATION OF NON-FORUM SHOPPING AS REQUIRED BY authority to elect among their members those who would fill the 12 seats
RULE 65 SECTIONS 2 AND 3 AND SUPREME COURT for Senators and 12 seats for House members in the Commission on
ADMINISTRATIVE CIRCULAR NO. 28-91. (Emphasis and underscoring Appointments. Under Section 17, Article VI of the Constitution, each
in the original) chamber exercises the power to choose, within constitutionally defined
limits, who among their members would occupy the allotted 6 seats of
The first petition, G.R. No. 180055, has thus indeed been rendered moot each chamber’s respective electoral tribunal.
with the designation of a Liberal Party member of the House contingent to
the CA, hence, as prayed for, the petition is withdrawn. xxxx

As for the second petition, G.R. No. 183055, it fails. Thus, even assuming that party-list representatives comprise a
sufficient number and have agreed to designate common nominees
Senator Madrigal failed to show that she sustained direct injury as a to the HRET and the CA, their primary recourse clearly rests with
result of the act complained of.39 Her petition does not in fact allege that the House of Representatives and not this Court. Under Sections 17
she or her political party PDP-Laban was deprived of a seat in the CA, or and 18, Article VI of the Constitution, party-list representatives must first
that she or PDP-Laban possesses personal and substantial interest to show to the House that they possess the required strength to be entitled
confer on her/it locus standi. to seats in the HRET and the CA. Only if the House fails to comply with
the directive of the Constitution on proportional representation of political
parties in the HRET and the CA can the party-list representatives seek
Senator Madrigal’s primary recourse rests with the respective Houses of
recourse to this Court under its power of judicial review. Under the
Congress and not with this Court. The doctrine of primary
doctrine of primary jurisdiction, prior recourse to the House is
jurisdiction dictates that prior recourse to the House is necessary before
necessary before petitioners may bring the instant case to the court.
she may bring her petition to court. 40 Senator Villar’s invocation of said
Consequently, petitioner’s direct recourse to this Court is
doctrine is thus well-taken, as is the following observation of Speaker
premature.
Nograles, citing Sen. Pimentel, Jr. v. House of Representatives Electoral
Tribunal:41
Following the ruling in Pimentel, it cannot be said that recourse was
already had in the House of Representatives. Furnishing a copy of
In order that the remedies of Prohibition and Mandamus may be availed
Petitioner’s letter to the Senate President and to the Speaker of the
of, there must be "no appeal, nor any plain, speedy and adequate remedy
House of Representatives does not constitute the primary recourse
in the ordinary course of law".
required prior to the invocation of the jurisdiction of the Supreme Court.
lavvph!1

Further, it is the Members of the House who claim to have been deprived
It is worth recalling that, in the 11th Congress, Senator Aquilino Pimentel of a seat in the Commission on Appointments that must first show to the
advocated the allocation of a position in the Commission on House that they possess the required numerical strength to be entitled to
Appointments for the Party-List Representatives. Just like the Petitioner seats in the Commission on Appointments. Just like Senator Pimentel,
in the instant case, Senator Pimentel first wrote to the Senate President, demanding seats in the Commission on Appointments for Congressmen,
requesting that the Commission on Appointments be restructured to who have not even raised the issue of its present composition in the
conform to the constitutional provision on proportional representation. xxx House, is not Senator Madrigal’s affair.42 (Italics, underscoring, and
Without awaiting final determination of the question xxx, Pimentel filed a emphasis supplied by Representative Nograles)
Petition for Prohibition and Mandamus with the Supreme Court. In the
said case, the Honorable Court ruled:
It bears noting that Senator Villar had already transmitted original copies
of Senator Madrigal’s letters to the Senate Secretary for inclusion in the
Order of Business of the Session of the Senate to address her concerns.
Senator Madrigal’s filing of the second petition is thus premature.

Senator Madrigal’s suggestion – that Senators Pilar Juliana Cayetano


and Richard Gordon be considered independent senators such that the
latter should not be allowed to be a member of the CA, 43 and that Senator
Alan Peter Cayetano be considered a member of the NP such that he
may sit in the CA as his inclusion in NP will entitle his party to one seat –
involves a determination of party affiliations, a question of fact which the
Court does not resolve.

WHEREFORE, the Motion with Leave of Court to Withdraw the Petition in


G.R. No. 180055 is GRANTED. The Petition is WITHDRAWN. The
Petition in G.R. No. 183055 is DISMISSED.

SO ORDERED.

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