ABAKADA GURO PARTYLIST vs PURISIMA
committee on the ground that it violates the doctrine of separation of
This petition for prohibition1 seeks to prevent respondents from
implementing and enforcing Republic Act (RA) 93352 (Attrition Act of
2005).
RA 9335 was enacted to optimize the revenue-generation capability
and collection of the Bureau of Internal Revenue (BIR) and the Bureau
of Customs (BOC). The law intends to encourage BIR and BOC officials
and employees to exceed their revenue targets by providing a system
of rewards and sanctions through the creation of a Rewards and
Incentives Fund (Fund) and a Revenue Performance Evaluation Board
(Board).3 It covers all officials and employees of the BIR and the BOC
with at least six months of service, regardless of employment status.4
The Fund is sourced from the collection of the BIR and the BOC in excess
of their revenue targets for the year, as determined by the
Development Budget and Coordinating Committee (DBCC). Any
incentive or reward is taken from the fund and allocated to the BIR and
the BOC in proportion to their contribution in the excess collection of
the targeted amount of tax revenue.5
The Boards in the BIR and the BOC are composed of the Secretary of
the Department of Finance (DOF) or his/her Undersecretary, the
Secretary of the Department of Budget and Management (DBM) or
his/her Undersecretary, the Director General of the National Economic
Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners,
two representatives from the rank-and-file employees and a
representative from the officials nominated by their recognized
organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the
allocation, distribution and release of the Fund; (2) set criteria and
procedures for removing from the service officials and employees
whose revenue collection falls short of the target; (3) terminate
personnel in accordance with the criteria adopted by the Board; (4)
prescribe a system for performance evaluation; (5) perform other
functions, including the issuance of rules and regulations and (6) submit
an annual report to Congress.7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC)
were tasked to promulgate and issue the implementing rules and
regulations of RA 9335,8 to be approved by a Joint Congressional
Oversight Committee created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition
challenging the constitutionality of RA 9335, a tax reform legislation.
They contend that, by establishing a system of rewards and incentives,
the law "transform[s] the officials and employees of the BIR and the
BOC into mercenaries and bounty hunters" as they will do their best
only in consideration of such rewards. Thus, the system of rewards and
incentives invites corruption and undermines the constitutionally
mandated duty of these officials and employees to serve the people
with utmost responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards
and incentives only to officials and employees of the BIR and the BOC
violates the constitutional guarantee of equal protection. There is no
valid basis for classification or distinction as to why such a system
should not apply to officials and employees of all other government
agencies.
In addition, petitioners assert that the law unduly delegates the power
to fix revenue targets to the President as it lacks a sufficient standard
on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR
and BOC officials may be dismissed from the service if their revenue
collections fall short of the target by at least 7.5%, the law does not,
however, fix the revenue targets to be achieved. Instead, the fixing of
revenue targets has been delegated to the President without sufficient
standards. It will therefore be easy for the President to fix an unrealistic
and unattainable target in order to dismiss BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional oversight
powers. While the legislative function is deemed accomplished and
completed upon the enactment and approval of the law, the creation
of the congressional oversight committee permits legislative
participation in the implementation and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor
General, question the petition for being premature as there is no actual
case or controversy yet. Petitioners have not asserted any right or claim
that will necessitate the exercise of this Court’s jurisdiction.
Nevertheless, respondents acknowledge that public policy requires the
resolution of the constitutional issues involved in this case. They assert
that the allegation that the reward system will breed mercenaries is
mere speculation and does not suffice to invalidate the law. Seen in
conjunction with the declared objective of RA 9335, the law validly
classifies the BIR and the BOC because the functions they perform are
distinct from those of the other government agencies and
instrumentalities. Moreover, the law provides a sufficient standard that
will guide the executive in the implementation of its provisions. Lastly,
the creation of the congressional oversight committee under the law
enhances, rather than violates, separation of powers. It ensures the
fulfillment of the legislative policy and serves as a check to any over-
accumulation of power on the part of the executive and the
implementing agencies.
After a careful consideration of the conflicting contentions of the
parties, the Court finds that petitioners have failed to overcome the
presumption of constitutionality in favor of RA 9335, except as shall
hereafter be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial adjudication.10
A closely related requirement is ripeness, that is, the question must be
ripe for adjudication. And a constitutional question is ripe for
adjudication when the governmental act being challenged has a direct
adverse effect on the individual challenging it.11 Thus, to be ripe for
judicial adjudication, the petitioner must show a personal stake in the
outcome of the case or an injury to himself that can be redressed by a
favorable decision of the Court.12
In this case, aside from the general claim that the dispute has ripened
into a judicial controversy by the mere enactment of the law even
without any further overt act,13 petitioners fail either to assert any
specific and concrete legal claim or to demonstrate any direct adverse
effect of the law on them. They are unable to show a personal stake in
the outcome of this case or an injury to themselves. On this account,
their petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the
constitutional issues raised by petitioners. The grave nature of their
allegations tends to cast a cloud on the presumption of constitutionality
in favor of the law. And where an action of the legislative branch is
alleged to have infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and employees must
at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism, and
justice, and lead modest lives.
Public office is a public trust. It must be discharged by its holder not for
his own personal gain but for the benefit of the public for whom he
holds it in trust. By demanding accountability and service with
responsibility, integrity, loyalty, efficiency, patriotism and justice, all
government officials and employees have the duty to be responsive to
the needs of the people they are called upon to serve.
1

Public officers enjoy the presumption of regularity in the performance
of their duties. This presumption necessarily obtains in favor of BIR and
BOC officials and employees. RA 9335 operates on the basis thereof and
reinforces it by providing a system of rewards and sanctions for the
purpose of encouraging the officials and employees of the BIR and the
BOC to exceed their revenue targets and optimize their revenue-
generation capability and collection.15
The presumption is disputable but proof to the contrary is required to
rebut it. It cannot be overturned by mere conjecture or denied in
advance (as petitioners would have the Court do) specially in this case
where it is an underlying principle to advance a declared public policy.
Petitioners’ claim that the implementation of RA 9335 will turn BIR and
BOC officials and employees into "bounty hunters and mercenaries" is
not only without any factual and legal basis; it is also purely speculative.
A law enacted by Congress enjoys the strong presumption of
constitutionality. To justify its nullification, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal
one.16 To invalidate RA 9335 based on petitioners’ baseless
supposition is an affront to the wisdom not only of the legislature that
passed it but also of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by
law be rewarded for exemplary and exceptional performance. A system
of incentives for exceeding the set expectations of a public office is not
anathema to the concept of public accountability. In fact, it recognizes
and reinforces dedication to duty, industry, efficiency and loyalty to
public service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law
which awards to officers of the customs as well as other parties an
amount not exceeding one-half of the net proceeds of forfeitures in
violation of the laws against smuggling. Citing Dorsheimer v. United
States,18 the U.S. Supreme Court said:
The offer of a portion of such penalties to the collectors is to stimulate
and reward their zeal and industry in detecting fraudulent attempts to
evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be
entitled to a reward when, as a consequence of their zeal in the
enforcement of tax and customs laws, they exceed their revenue
targets. In addition, RA 9335 establishes safeguards to ensure that the
reward will not be claimed if it will be either the fruit of "bounty hunting
or mercenary activity" or the product of the irregular performance of
official duties. One of these precautionary measures is embodied in
Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the
BOC. – The officials, examiners, and employees of the [BIR] and the
[BOC] who violate this Act or who are guilty of negligence, abuses or
acts of malfeasance or misfeasance or fail to exercise extraordinary
diligence in the performance of their duties shall be held liable for any
loss or injury suffered by any business establishment or taxpayer as a
result of such violation, negligence, abuse, malfeasance, misfeasance
or failure to exercise extraordinary diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under
the same conditions and among persons similarly situated; it is equality
among equals, not similarity of treatment of persons who are classified
based on substantial differences in relation to the object to be
accomplished.19 When things or persons are different in fact or
circumstance, they may be treated in law differently. In Victoriano v.
Elizalde Rope Workers’ Union,20 this Court declared:
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the [S]tate. It
is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should
be affected alike by a statute. Equality of operation of statutes does not
mean indiscriminate operation on persons merely as such, but on
persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not
forbid discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed or
by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A
law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be
reasonable, which means that the classification should be based on
substantial distinctions which make for real differences, that it must be
germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each member
of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or
rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of
enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. It is not necessary
that the classification be based on scientific or marked differences of
things or in their relation. Neither is it necessary that the classification
be made with mathematical nicety. Hence, legislative classification may
in many cases properly rest on narrow distinctions, for the equal
protection guaranty does not preclude the legislature from recognizing
degrees of evil or harm, and legislation is addressed to evils as they may
appear.21 (emphasis supplied)
The equal protection clause recognizes a valid classification, that is, a
classification that has a reasonable foundation or rational basis and not
arbitrary.22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the
BIR and the BOC.23 Since the subject of the law is the revenue-
generation capability and collection of the BIR and the BOC, the
incentives and/or sanctions provided in the law should logically pertain
to the said agencies. Moreover, the law concerns only the BIR and the
BOC because they have the common distinct primary function of
generating revenues for the national government through the
collection of taxes, customs duties, fees and charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal
Revenue, which shall be headed by and subject to the supervision and
control of the Commissioner of Internal Revenue, who shall be
appointed by the President upon the recommendation of the Secretary
[of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all
revenues collected;
(2) Exercise duly delegated police powers for the proper performance
of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic
activities;
(4) Exercise supervision and control over its constituent and
subordinate units; and
(5) Perform such other functions as may be provided by law.24
xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the following functions:
2

Sec. 23. The Bureau of Customs. – The Bureau of Customs which shall
be headed and subject to the management and control of the
Commissioner of Customs, who shall be appointed by the President
upon the recommendation of the Secretary[of the DOF] and
hereinafter referred to as Commissioner, shall have the following
functions:
(1) Collect custom duties, taxes and the corresponding fees, charges
and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs
laws;
(4) Prevent and suppress smuggling, pilferage and all other economic
frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the
clearance of vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all
ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.25
xxx xxx xxx (emphasis supplied)
Both the BIR and the BOC are bureaus under the DOF. They principally
perform the special function of being the instrumentalities through
which the State exercises one of its great inherent functions – taxation.
Indubitably, such substantial distinction is germane and intimately
related to the purpose of the law. Hence, the classification and
treatment accorded to the BIR and the BOC under RA 9335 fully satisfy
the demands of equal protection.
Undue Delegation
Two tests determine the validity of delegation of legislative power: (1)
the completeness test and (2) the sufficient standard test. A law is
complete when it sets forth therein the policy to be executed, carried
out or implemented by the delegate.26 It lays down a sufficient
standard when it provides adequate guidelines or limitations in the law
to map out the boundaries of the delegate’s authority and prevent the
delegation from running riot.27 To be sufficient, the standard must
specify the limits of the delegate’s authority, announce the legislative
policy and identify the conditions under which it is to be
implemented.28
RA 9335 adequately states the policy and standards to guide the
President in fixing revenue targets and the implementing agencies in
carrying out the provisions of the law. Section 2 spells out the policy of
the law:
SEC. 2. Declaration of Policy. – It is the policy of the State to optimize
the revenue-generation capability and collection of the Bureau of
Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing
for a system of rewards and sanctions through the creation of a
Rewards and Incentives Fund and a Revenue Performance Evaluation
Board in the above agencies for the purpose of encouraging their
officials and employees to exceed their revenue targets.
Section 4 "canalized within banks that keep it from overflowing"29 the
delegated power to the President to fix revenue targets:
SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund,
hereinafter referred to as the Fund, is hereby created, to be sourced
from the collection of the BIR and the BOC in excess of their respective
revenue targets of the year, as determined by the Development Budget
and Coordinating Committee (DBCC), in the following percentages:
Excess of Collection of the Excess the Revenue Targets
Percent (%) of the Excess Collection to Accrue to the Fund
30% or below
– 15%
More than 30%
– 15% of the first 30% plus 20% of the remaining excess
The Fund shall be deemed automatically appropriated the year
immediately following the year when the revenue collection target was
exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection
expected of the BIR and the BOC for a given fiscal year as stated in the
Budget of Expenditures and Sources of Financing (BESF) submitted by
the President to Congress. The BIR and the BOC shall submit to the
DBCC the distribution of the agencies’ revenue targets as allocated
among its revenue districts in the case of the BIR, and the collection
districts in the case of the BOC.
xxx xxx xxx (emphasis supplied)
Revenue targets are based on the original estimated revenue collection
expected respectively of the BIR and the BOC for a given fiscal year as
approved by the DBCC and stated in the BESF submitted by the
President to Congress.30 Thus, the determination of revenue targets
does not rest solely on the President as it also undergoes the scrutiny
of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority
and identifies the conditions under which officials and employees
whose revenue collection falls short of the target by at least 7.5% may
be removed from the service:
SEC. 7. Powers and Functions of the Board. – The Board in the agency
shall have the following powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials
and employees whose revenue collection falls short of the target by at
least seven and a half percent (7.5%), with due consideration of all
relevant factors affecting the level of collection as provided in the rules
and regulations promulgated under this Act, subject to civil service
laws, rules and regulations and compliance with substantive and
procedural due process: Provided, That the following exemptions shall
apply:
1. Where the district or area of responsibility is newly-created, not
exceeding two years in operation, as has no historical record of
collection performance that can be used as basis for evaluation; and
2. Where the revenue or customs official or employee is a recent
transferee in the middle of the period under consideration unless the
transfer was due to nonperformance of revenue targets or potential
nonperformance of revenue targets: Provided, however, That when the
district or area of responsibility covered by revenue or customs officials
or employees has suffered from economic difficulties brought about by
natural calamities or force majeure or economic causes as may be
determined by the Board, termination shall be considered only after
careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in
the preceding paragraph: Provided, That such decision shall be
immediately executory: Provided, further, That the application of the
criteria for the separation of an official or employee from service under
this Act shall be without prejudice to the application of other relevant
3
laws on accountability of public officers and employees, such as the
Code of Conduct and Ethical Standards of Public Officers and Employees
and the Anti-Graft and Corrupt Practices Act;
xxx xxx xxx (emphasis supplied)
Clearly, RA 9335 in no way violates the security of tenure of officials and
employees of the BIR and the BOC. The guarantee of security of tenure
only means that an employee cannot be dismissed from the service for
causes other than those provided by law and only after due process is
accorded the employee.31 In the case of RA 9335, it lays down a
reasonable yardstick for removal (when the revenue collection falls
short of the target by at least 7.5%) with due consideration of all
relevant factors affecting the level of collection. This standard is
analogous to inefficiency and incompetence in the performance of
official duties, a ground for disciplinary action under civil service
laws.32 The action for removal is also subject to civil service laws, rules
and regulations and compliance with substantive and procedural due
process.
At any rate, this Court has recognized the following as sufficient
standards: "public interest," "justice and equity," "public convenience
and welfare" and "simplicity, economy and welfare."33 In this case, the
declared policy of optimization of the revenue-generation capability
and collection of the BIR and the BOC is infused with public interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. – There is hereby
created a Joint Congressional Oversight Committee composed of seven
Members from the Senate and seven Members from the House of
Representatives. The Members from the Senate shall be appointed by
the Senate President, with at least two senators representing the
minority. The Members from the House of Representatives shall be
appointed by the Speaker with at least two members representing the
minority. After the Oversight Committee will have approved the
implementing rules and regulations (IRR) it shall thereafter become
functus officio and therefore cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created
for the purpose of approving the implementing rules and regulations
(IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May
22, 2006, it approved the said IRR. From then on, it became functus
officio and ceased to exist. Hence, the issue of its alleged encroachment
on the executive function of implementing and enforcing the law may
be considered moot and academic.
This notwithstanding, this might be as good a time as any for the Court
to confront the issue of the constitutionality of the Joint Congressional
Oversight Committee created under RA 9335 (or other similar laws for
that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the
concept of congressional oversight in Macalintal v. Commission on
Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities
undertaken by Congress to enhance its understanding of and influence
over the implementation of legislation it has enacted. Clearly, oversight
concerns post-enactment measures undertaken by Congress: (a) to
monitor bureaucratic compliance with program objectives, (b) to
determine whether agencies are properly administered, (c) to eliminate
executive waste and dishonesty, (d) to prevent executive usurpation of
legislative authority, and (d) to assess executive conformity with the
congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of
legislative power itself and integral to the checks and balances inherent
in a democratic system of government. x x x x x x x x x
Over the years, Congress has invoked its oversight power with
increased frequency to check the perceived "exponential accumulation
of power" by the executive branch. By the beginning of the 20th
century, Congress has delegated an enormous amount of legislative
authority to the executive branch and the administrative agencies.
Congress, thus, uses its oversight power to make sure that the
administrative agencies perform their functions within the authority
delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its oversight
powers may be divided into three categories, namely: scrutiny,
investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of
attention to administrative operations. Its primary purpose is to
determine economy and efficiency of the operation of government
activities. In the exercise of legislative scrutiny, Congress may request
information and report from the other branches of government. It can
give recommendations or pass resolutions for consideration of the
agency involved.
xxx xxx xxx
b. Congressional investigation
While congressional scrutiny is regarded as a passive process of looking
at the facts that are readily available, congressional investigation
involves a more intense digging of facts. The power of Congress to
conduct investigation is recognized by the 1987 Constitution under
section 21, Article VI, xxx xxx xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises its
oversight power is thru legislative supervision. "Supervision" connotes
a continuing and informed awareness on the part of a congressional
committee regarding executive operations in a given administrative
area. While both congressional scrutiny and investigation involve
inquiry into past executive branch actions in order to influence future
executive branch performance, congressional supervision allows
Congress to scrutinize the exercise of delegated law-making authority,
and permits Congress to retain part of that delegated authority.
Congress exercises supervision over the executive agencies through its
veto power. It typically utilizes veto provisions when granting the
President or an executive agency the power to promulgate regulations
with the force of law. These provisions require the President or an
agency to present the proposed regulations to Congress, which retains
a "right" to approve or disapprove any regulation before it takes effect.
Such legislative veto provisions usually provide that a proposed
regulation will become a law after the expiration of a certain period of
time, only if Congress does not affirmatively disapprove of the
regulation in the meantime. Less frequently, the statute provides that
a proposed regulation will become law if Congress affirmatively
approves it.
Supporters of legislative veto stress that it is necessary to maintain the
balance of power between the legislative and the executive branches
of government as it offers lawmakers a way to delegate vast power to
the executive branch or to independent agencies while retaining the
option to cancel particular exercise of such power without having to
pass new legislation or to repeal existing law. They contend that this
arrangement promotes democratic accountability as it provides
legislative check on the activities of unelected administrative agencies.
One proponent thus explains:
It is too late to debate the merits of this delegation policy: the policy is
too deeply embedded in our law and practice. It suffices to say that the
complexities of modern government have often led Congress-whether
by actual or perceived necessity- to legislate by declaring broad policy
4
goals and general statutory standards, leaving the choice of policy
options to the discretion of an executive officer. Congress articulates
legislative aims, but leaves their implementation to the judgment of
parties who may or may not have participated in or agreed with the
development of those aims. Consequently, absent safeguards, in many
instances the reverse of our constitutional scheme could be effected:
Congress proposes, the Executive disposes. One safeguard, of course,
is the legislative power to enact new legislation or to change existing
law. But without some means of overseeing post enactment activities
of the executive branch, Congress would be unable to determine
whether its policies have been implemented in accordance with
legislative intent and thus whether legislative intervention is
appropriate.
Its opponents, however, criticize the legislative veto as undue
encroachment upon the executive prerogatives. They urge that any
post-enactment measures undertaken by the legislative branch should
be limited to scrutiny and investigation; any measure beyond that
would undermine the separation of powers guaranteed by the
Constitution. They contend that legislative veto constitutes an
impermissible evasion of the President’s veto authority and intrusion
into the powers vested in the executive or judicial branches of
government. Proponents counter that legislative veto enhances
separation of powers as it prevents the executive branch and
independent agencies from accumulating too much power. They
submit that reporting requirements and congressional committee
investigations allow Congress to scrutinize only the exercise of
delegated law-making authority. They do not allow Congress to review
executive proposals before they take effect and they do not afford the
opportunity for ongoing and binding expressions of congressional
intent. In contrast, legislative veto permits Congress to participate
prospectively in the approval or disapproval of "subordinate law" or
those enacted by the executive branch pursuant to a delegation of
authority by Congress. They further argue that legislative veto "is a
necessary response by Congress to the accretion of policy control by
forces outside its chambers." In an era of delegated authority, they
point out that legislative veto "is the most efficient means Congress has
yet devised to retain control over the evolution and implementation of
its policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme
Court resolved the validity of legislative veto provisions. The case arose
from the order of the immigration judge suspending the deportation of
Chadha pursuant to § 244(c)(1) of the Immigration and Nationality Act.
The United States House of Representatives passed a resolution vetoing
the suspension pursuant to § 244(c)(2) authorizing either House of
Congress, by resolution, to invalidate the decision of the executive
branch to allow a particular deportable alien to remain in the United
States. The immigration judge reopened the deportation proceedings
to implement the House order and the alien was ordered deported. The
Board of Immigration Appeals dismissed the alien’s appeal, holding that
it had no power to declare unconstitutional an act of Congress. The
United States Court of Appeals for Ninth Circuit held that the House was
without constitutional authority to order the alien’s deportation and
that § 244(c)(2) violated the constitutional doctrine on separation of
powers.
On appeal, the U.S. Supreme Court declared § 244(c)(2)
unconstitutional. But the Court shied away from the issue of separation
of powers and instead held that the provision violates the presentment
clause and bicameralism. It held that the one-house veto was
essentially legislative in purpose and effect. As such, it is subject to the
procedures set out in Article I of the Constitution requiring the passage
by a majority of both Houses and presentment to the President. x x x x
xxxxx
Two weeks after the Chadha decision, the Court upheld, in
memorandum decision, two lower court decisions invalidating the
legislative veto provisions in the Natural Gas Policy Act of 1978 and the
Federal Trade Commission Improvement Act of 1980. Following this
precedence, lower courts invalidated statutes containing legislative
veto provisions although some of these provisions required the
approval of both Houses of Congress and thus met the bicameralism
requirement of Article I. Indeed, some of these veto provisions were
not even exercised.35 (emphasis supplied)
In Macalintal, given the concept and configuration of the power of
congressional oversight and considering the nature and powers of a
constitutional body like the Commission on Elections, the Court struck
down the provision in RA 9189 (The Overseas Absentee Voting Act of
2003) creating a Joint Congressional Committee. The committee was
tasked not only to monitor and evaluate the implementation of the said
law but also to review, revise, amend and approve the IRR promulgated
by the Commission on Elections. The Court held that these functions
infringed on the constitutional independence of the Commission on
Elections.36
With this backdrop, it is clear that congressional oversight is not
unconstitutional per se, meaning, it neither necessarily constitutes an
encroachment on the executive power to implement laws nor
undermines the constitutional separation of powers. Rather, it is
integral to the checks and balances inherent in a democratic system of
government. It may in fact even enhance the separation of powers as it
prevents the over-accumulation of power in the executive branch.
However, to forestall the danger of congressional encroachment
"beyond the legislative sphere," the Constitution imposes two basic
and related constraints on Congress.37 It may not vest itself, any of its
committees or its members with either executive or judicial power.38
And, when it exercises its legislative power, it must follow the "single,
finely wrought and exhaustively considered, procedures" specified
under the Constitution,39 including the procedure for enactment of
laws and presentment.
Thus, any post-enactment congressional measure such as this should
be limited to scrutiny and investigation. In particular, congressional
oversight must be confined to the following:
(1) scrutiny based primarily on Congress’ power of appropriation and
the budget hearings conducted in connection with it, its power to ask
heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power of
confirmation40 and
(2) investigation and monitoring41 of the implementation of laws
pursuant to the power of Congress to conduct inquiries in aid of
legislation.42
Any action or step beyond that will undermine the separation of
powers guaranteed by the Constitution. Legislative vetoes fall in this
class.
Legislative veto is a statutory provision requiring the President or an
administrative agency to present the proposed implementing rules and
regulations of a law to Congress which, by itself or through a committee
formed by it, retains a "right" or "power" to approve or disapprove such
regulations before they take effect. As such, a legislative veto in the
form of a congressional oversight committee is in the form of an
inward-turning delegation designed to attach a congressional leash
(other than through scrutiny and investigation) to an agency to which
Congress has by law initially delegated broad powers.43 It radically
changes the design or structure of the Constitution’s diagram of power
as it entrusts to Congress a direct role in enforcing, applying or
implementing its own laws.44
Congress has two options when enacting legislation to define national
policy within the broad horizons of its legislative competence.45 It can
itself formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity
with those standards.46 In the latter case, the law must be complete in
all its essential terms and conditions when it leaves the hands of the
legislature.47 Thus, what is left for the executive branch or the
concerned administrative agency when it formulates rules and
regulations implementing the law is to fill up details (supplementary
rule-making) or ascertain facts necessary to bring the law into actual
operation (contingent rule-making).48
5
Administrative regulations enacted by administrative agencies to
implement and interpret the law which they are entrusted to enforce
have the force of law and are entitled to respect.49 Such rules and
regulations partake of the nature of a statute50 and are just as binding
as if they have been written in the statute itself. As such, they have the
force and effect of law and enjoy the presumption of constitutionality
and legality until they are set aside with finality in an appropriate case
by a competent court.51 Congress, in the guise of assuming the role of
an overseer, may not pass upon their legality by subjecting them to its
stamp of approval without disturbing the calculated balance of powers
established by the Constitution. In exercising discretion to approve or
disapprove the IRR based on a determination of whether or not they
conformed with the provisions of RA 9335, Congress arrogated judicial
power unto itself, a power exclusively vested in this Court by the
Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be
subjected to approval by Congress as a condition for their effectivity
violates the cardinal constitutional principles of bicameralism and the
rule on presentment.52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the
provision on initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal
laws)53 is vested in Congress which consists of two chambers, the
Senate and the House of Representatives. A valid exercise of legislative
power requires the act of both chambers. Corrollarily, it can be
exercised neither solely by one of the two chambers nor by a
committee of either or both chambers. Thus, assuming the validity of a
legislative veto, both a single-chamber legislative veto and a
congressional committee legislative veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress shall, before it
becomes a law, be presented to the President. If he approves the same,
he shall sign it, otherwise, he shall veto it and return the same with his
objections to the House where it originated, which shall enter the
objections at large in its Journal and proceed to reconsider it. If, after
such reconsideration, two-thirds of all the Members of such House shall
agree to pass the bill, it shall be sent, together with the objections, to
the other House by which it shall likewise be reconsidered, and if
approved by two-thirds of all the Members of that House, it shall
become a law. In all such cases, the votes of each House shall be
determined by yeas or nays, and the names of the members voting for
or against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it originated
within thirty days after the date of receipt thereof; otherwise, it shall
become a law as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President for
approval or veto. In the absence of presentment to the President, no
bill passed by Congress can become a law. In this sense, law-making
under the Constitution is a joint act of the Legislature and of the
Executive. Assuming that legislative veto is a valid legislative act with
the force of law, it cannot take effect without such presentment even
if approved by both chambers of Congress.
In sum, two steps are required before a bill becomes a law. First, it must
be approved by both Houses of Congress.54 Second, it must be
presented to and approved by the President.55 As summarized by
Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is
the procedure for the approval of bills:
A bill is introduced by any member of the House of Representatives or
the Senate except for some measures that must originate only in the
former chamber.
The first reading involves only a reading of the number and title of the
measure and its referral by the Senate President or the Speaker to the
proper committee for study.
The bill may be "killed" in the committee or it may be recommended
for approval, with or without amendments, sometimes after public
hearings are first held thereon. If there are other bills of the same
nature or purpose, they may all be consolidated into one bill under
common authorship or as a committee bill.
Once reported out, the bill shall be calendared for second reading. It is
at this stage that the bill is read in its entirety, scrutinized, debated
upon and amended when desired. The second reading is the most
important stage in the passage of a bill.
The bill as approved on second reading is printed in its final form and
copies thereof are distributed at least three days before the third
reading. On the third reading, the members merely register their votes
and explain them if they are allowed by the rules. No further debate is
allowed.
Once the bill passes third reading, it is sent to the other chamber, where
it will also undergo the three readings. If there are differences between
the versions approved by the two chambers, a conference
committee58 representing both Houses will draft a compromise
measure that if ratified by the Senate and the House of Representatives
will then be submitted to the President for his consideration.
The bill is enrolled when printed as finally approved by the Congress,
thereafter authenticated with the signatures of the Senate President,
the Speaker, and the Secretaries of their respective chambers…59
The President’s role in law-making.
The final step is submission to the President for approval. Once
approved, it takes effect as law after the required publication.60
Where Congress delegates the formulation of rules to implement the
law it has enacted pursuant to sufficient standards established in the
said law, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature. And it may be
deemed to have left the hands of the legislature when it becomes
effective because it is only upon effectivity of the statute that legal
rights and obligations become available to those entitled by the
language of the statute. Subject to the indispensable requisite of
publication under the due process clause,61 the determination as to
when a law takes effect is wholly the prerogative of Congress.62 As
such, it is only upon its effectivity that a law may be executed and the
executive branch acquires the duties and powers to execute the said
law. Before that point, the role of the executive branch, particularly of
the President, is limited to approving or vetoing the law.63
From the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional. Under this principle,
a provision that requires Congress or its members to approve the
implementing rules of a law after it has already taken effect shall be
unconstitutional, as is a provision that allows Congress or its members
to overturn any directive or ruling made by the members of the
executive branch charged with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck down
as unconstitutional. While there may be similar provisions of other laws
that may be invalidated for failure to pass this standard, the Court
refrains from invalidating them wholesale but will do so at the proper
time when an appropriate case assailing those provisions is brought
before us.64
6
The next question to be resolved is: what is the effect of the
unconstitutionality of Section 12 of RA 9335 on the other provisions of
the law? Will it render the entire law unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause. – If any provision of this Act is declared
invalid by a competent court, the remainder of this Act or any provision
not affected by such declaration of invalidity shall remain in force and
effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid
down the following rules:
The general rule is that where part of a statute is void as repugnant to
the Constitution, while another part is valid, the valid portion, if
separable from the invalid, may stand and be enforced. The presence
of a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the
statute. To justify this result, the valid portion must be so far
independent of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself if it had supposed that it
could not constitutionally enact the other. Enough must remain to
make a complete, intelligible and valid statute, which carries out the
legislative intent. x x x
The exception to the general rule is that when the parts of a statute are
so mutually dependent and connected, as conditions, considerations,
inducements, or compensations for each other, as to warrant a belief
that the legislature intended them as a whole, the nullity of one part
will vitiate the rest. In making the parts of the statute dependent,
conditional, or connected with one another, the legislature intended
the statute to be carried out as a whole and would not have enacted it
if one part is void, in which case if some parts are unconstitutional, all
the other provisions thus dependent, conditional, or connected must
fall with them.
The separability clause of RA 9335 reveals the intention of the
legislature to isolate and detach any invalid provision from the other
provisions so that the latter may continue in force and effect. The valid
portions can stand independently of the invalid section. Without
Section 12, the remaining provisions still constitute a complete,
intelligible and valid law which carries out the legislative intent to
optimize the revenue-generation capability and collection of the BIR
and the BOC by providing for a system of rewards and sanctions
through the Rewards and Incentives Fund and a Revenue Performance
Evaluation Board.
To be effective, administrative rules and regulations must be published
in full if their purpose is to enforce or implement existing law pursuant
to a valid delegation. The IRR of RA 9335 were published on May 30,
2006 in two newspapers of general circulation66 and became effective
15 days thereafter.67 Until and unless the contrary is shown, the IRR
are presumed valid and effective even without the approval of the Joint
Congressional Oversight Committee.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of
RA 9335 creating a Joint Congressional Oversight Committee to
approve the implementing rules and regulations of the law is declared
UNCONSTITUTIONAL and therefore NULL and VOID. The
constitutionality of the remaining provisions of RA 9335 is UPHELD.
Pursuant to Section 13 of RA 9335, the rest of the provisions remain in
force and effect.
SO ORDERED.
FIGUEROA vs PEOPLE
Assailed and sought to be set aside in this petition for review under Rule
45 of the Rules of Court is the Decision[1] dated October 11, 2002 of
the Court of Appeals (CA) in CA-G.R. CR No. 17235, affirming in toto an
earlier decision of the Regional Trial Court (RTC) of Davao City, Branch
17, which found herein petitioners guilty of the crime of libel.
The antecedent facts:
On March 24, 1992, in the RTC of Davao City, the city prosecutor of
Davao, at the instance of one Aproniano Rivera, filed an Information[2]
for libel under Article 355 in relation to Article 360 of the Revised Penal
Code against the herein petitioners, Tony N. Figueroa and Rogelio J.
Flaviano. Docketed in the same court as Criminal Case No. 25,957-92
and raffled to Branch 17 thereof, the Information alleges as follows:
That on or about April 9, 1991, in the City of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-mentioned
accused, Tony VN. Figueroa, writer under the column entitled
Footprints of the People's Daily Forum, conspiring, confederating and
helping one another with his co-accused Rogelio J. Flaviano, Publisher-
Editor of the same magazine, with malicious intent of impeaching the
honesty, integrity, character as well as the reputation and the social
standing of one Aproniano Rivera and with intent to cast dishonor,
discredit and contempt upon said Aproniano Rivera, willfully,
unlawfully and feloniously published in the People's Daily Forum, a
news publication as follows:
Bangkerohan public market these days is no different from the US
Times Square. Bullies, thugs, hooligans and gyppers roam with
impunity, some using organizational clout as a ploy to keep themselves
from obvious exposure. Some leeches, like a certain Aproniano Rey
Rivera, our sources say, are lording it over like the city's sprawling
vegetable and meat complex has become an apportioned bailiwick.
Rivera, apparently a non-Visayan pseudobully flaunting with his tag as
president of a vendor's federation, has intimated a good number of
lowly hawkers. This is a confirmed fact, our sources believe. And our
independent eveasdroppers [sic] have come with a similar perception
of a man who continues to lead a federation when, in the first place, he
has no business being in Davao or in Bankerohan.
Often, Mr. Re (King?) Rivera strolls the stretches which criss-cross the
Bankerohan confines with the arrogance of a tribal chieftain; the only
differences, however, are that: he uses no G-strings, speaks in some
strange Luzon lingo and twang, and has no solid leadership. Our reports
have finely outlined the mechanics of Rivera's tactics despite assertions
the man is nothing but a paper tiger conveniently propped up by
federation members loyal to his sometime indecent role as a sachem.
This man, the sources add, is backed by powerful city government
hooligans who, it was reported, have direct hand in the planned
manipulation in the distribution of stalls to privileged applicants. Even
if he has reportedly sold his interest in the public market, which should
be reason enough for him to resign from his position, Rivera still carries
the false aura of intimidating poor vendors and imposing his insensible
remarks about what must be done about the governance of
Bangkerohan.
Sometimes its hard to compel a man with Rivera's mind about the
nuances of honorable resignation. May iba d'yan na pakapalan na lang
ng mukha!
xxx xxx xxx
Rivera, however, must be consoled in knowing he's not alone with his
dirty antics. Romy Miclat, a president of a meat vendors group in
Bankerohan, and his board member, Erning Garcia, have tacitly
followed the way of the thugs, floating little fibs to gullible victims. Our
moles have gathered the due are seeling [sic] the new public market
stalls for P9,000 with the assurances that the buyer gets a display area
ordinarily occupied by two applicants. A lot more have fallen prey to
the scheme, and more the blindly swallowing all the books the two are
peddling.
This dilemma has been there for so long, but the city hall, RCDP, and
the city council have continuously evaded the vicious cabal of men out
to derail the raffling of the stalls to applicants. Some believe strongly
this is odd, but they can only whimper at their helplessness against
power-brokers who have taken over the dominance of Bangkerohan.
One of the likely victims in this filthy machination are the sinapo
7
vendors who have become explosively furious over the snafu they are
facing because of the manipulation of stalls inside Bangkerohan.
Insiders continuo[u]sly tell of woeful tales about how they have been
given runarounds by many so-called public servants, but they have
maintained their composures quite curiously. They are talking,
however, of anger which, our sources [s]ay, may end up with a bloody
retaliation. This probability is looming more lucid every day the officials
handling the Bangkerohan stall mess are condoning their plight. Even
politicos are oddly silent about the whole controversy for some
unknown reasons. It looks like the alleged schemes perpetrated by
Rivera, Miclat and Garcia will remain unperturbed, no thanks to power-
brokers.
which newspaper was read by the people throughout Davao City, to the
dishonor, discredit and contempt upon said Aproniano Rivera.
Contrary to law.
On arraignment, petitioners as accused, assisted by counsel, entered a
common plea of Not Guilty. Thereafter, trial on the merits ensued.
On June 8, 1993, the RTC rendered its decision[3] finding both
petitioners guilty as charged and accordingly sentenced them, thus:
WHEREFORE, finding the evidence of the prosecution sufficient to
prove the guilt of both accused, Tony Figueroa and Rogelio Flaviano,
columnist and publisher-editor, respectively of the People's Daily
Forum, of the offense charged, beyond reasonable doubt; their
evidence adduced is not sufficient to afford their exoneration, pursuant
to Art. 355 in relation to Art. 360 of the Revised Penal Code, without
any mitigating ot [sic] aggravating circumstances, proved in the
commission of the offense charged, imposing the indeterminate
sentence law, both accused are hereby sentenced to suffer an
indeterminate penalty of imprisonment of five months and one day of
arresto mayor maximum as minimum penalty, to two years four
months and 31 days of prision correccional minimum as maximum
penalty with accessory penalty as provided for by law.
Moreover, pursuant to Art. 100 in relation to Art. 104 of the Revised
Penal Code, governing civil indemnity, both accused are ordered to pay
jointly and solidarily the amount of P50,000.00 as moral damages to
complainant, Aproniano Rivera and the amount of P10,000.00 by way
of attorney's fees with costs.
Without any aggravating circumstances proved by the prosecution, in
the commission of the offense charged exemplary damages against
both accused, cannot be awarded. x x x
SO ORDERED.
From the trial courts judgment of conviction, petitioners went to the
CA whereat their appellate recourse was docketed as CA-G.R. CR No.
17235.
As stated at the threshold hereof, the CA, in the herein assailed
Decision[4] dated October 11, 2002, affirmed that of the trial court, to
wit:
WHEREFORE, premises considered, the decision of the Regional Trial
Court is hereby AFFIRMED in all respects.
SO ORDERED.
Undaunted, petitioners are now with this Court via this petition for
review on their submissions that the CA erred -
1. IN HOLDING THAT THE COLUMN ENTITLED FOOTPRINTS OF
THE PEOPLES DAILY FORUM IS LIBELOUS OR DEFAMATORY TO PRIVATE
COMPLAINANT APRONIANO RIVERA;
2. IN HOLDING THAT PRIVATE COMPLAINANT IS NOT A PUBLIC
OFFICER, HENCE THE PUBLISHED ARTICLE CANNOT BE CONSIDERED TO
BE WITHIN THE PURVIEW OF PRIVILEGED COMMUNICATION;
3. IN UPHOLDING THE AWARD OF MORAL DAMAGES AND ATTORNEY'S
FEES.
The petition lacks merit.
In praying for their acquittal, petitioners attempt to pass off the subject
published article as one that portrays the condition of the Bankerohan
Public Market in general. Citing Jimenez v. Reyes,[5] they challenge the
finding of the two courts below on the libelous or defamatory nature of
the same article which, to them, must be read and construed in its
entirety. It is their posture that the article was not directed at the
private character of complainant Aproniano Rivera but on the sorry
state of affairs at the Bankerohan Public Market.
Petitioners posture cannot save the day for them.
Our own reading of the entire text of the published article convinces us
of its libelous or defamatory character. While it is true that a
publication's libelous nature depends on its scope, spirit and motive
taken in their entirety, the article in question as a whole explicitly
makes mention of private complainant Rivera all throughout. It cannot
be said that the article was a mere general commentary on the alleged
existing state of affairs at the aforementioned public market because
Rivera was not only specifically pointed out several times therein but
was even tagged with derogatory names. Indubitably, this name-calling
was, as correctly found by the two courts below, directed at the very
person of Rivera himself.
If, as argued, the published article was indeed merely intended to
innocently present the current condition of the Bankerohan Public
Market, there would then be no place in the article for the needless
name-calling which it is wrought full of. It is beyond comprehension
how calling Rivera a leech, a paper tiger, a non-Visayan pseudobully
with the arrogance of a tribal chieftain save for his speaking in some
strange Luzon lingo and twang and who has no business being in Davao
or Bankerohan can ever be regarded or viewed as comments free of
malice. As it is, the tag and description thus given Rivera have no place
in a general account of the situation in the public market, and cannot,
by any stretch of the imagination, be construed to be anything other
than what they really are: defamatory and libelous in nature, and
definitely directed at the private character of complainant Rivera. For
indeed, no logical connection can possibly be made between Rivera's
Luzon origin and the conditions of the Bankerohan Public Market.
Doubtless, the words used in the article reek of venom towards the very
person of Rivera.
Article 353 of the Revised Penal Code defines libel as follows:
Art. 353. Definition of libel. - A libel is a public and malicious imputation
of a crime, or a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead.
Defamation, which includes libel and slander, means injuring a person's
character, fame or reputation through false and malicious statements.
It is that which tends to injure reputation or to diminish the esteem,
respect, goodwill or confidence in the complainant or to excite
derogatory feelings or opinions about him. It is the publication of
anything which is injurious to the good name or reputation of another
or tends to bring him into disrepute.[6]
In the light of the numerable defamatory imputations made against
complainant Rivera as a person, the article in dispute, even taken, as
urged, in its totality, undeniably caused serious damage to his character
and person and clearly injurious to his reputation.
At any rate, in libel cases, the question is not what the writer of the
libelous material means, but what the words used by him mean.[7]
Here, the defamatory character of the words used by the petitioners is
shown by the very recitals thereof in the questioned article.
8
It is next contended by the petitioners that Rivera is a public officer. On
this premise, they invoke in their favor the application of one of the
exceptions to the legal presumption of the malicious nature of every
defamatory imputation, as provided for under paragraph (2), Article
354 of the Revised Penal Code, to wit:
Art. 354. Requirement for publicity. - Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
xxx xxx xxx
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative, or other official
proceedings which are not of confidential nature, or of any statement,
report, or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.
Again, as correctly found by both the trial court and the CA, Rivera is
not a public officer or employee but a private citizen. Hence, the
published article cannot be considered as falling within the ambit of
privileged communication within the context of the above-quoted
provision of the Penal Code.
A public office is the right, authority and duty, created and conferred
by law, by which an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for the
benefit of the public. The individual so invested is a public officer. The
most important characteristic which distinguishes an office from an
employment or contract is that the creation and conferring of an office
involve a delegation to the individual of some of the sovereign
functions of government, to be exercised by him for the benefit of the
public; that some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches, to be exercised for the public
benefit. Unless the powers conferred are of this nature, the individual
is not a public officer.[8]
Clearly, Rivera cannot be considered a public officer. Being a member
of the market committee did not vest upon him any sovereign function
of the government, be it legislative, executive or judicial. As reasoned
out by the CA, the operation of a public market is not a governmental
function but merely an activity undertaken by the city in its private
proprietary capacity. Furthermore, Rivera's membership in the market
committee was in representation of the association of market vendors,
a non-governmental organization belonging to the private sector.
Indeed, even if we were to pretend that Rivera was a public officer,
which he clearly is not, the subject article still would not pass muster as
Article 354(2), supra, of the Revised Penal Code expressly requires that
it be a fair and true report, made in good faith, without any comments
or remarks. Even a mere cursory glance at the article reveals that it is
far from being that.
Finally, petitioners assail the award by the two courts below of moral
damages and attorney's fees in favor of Rivera.
The assault must fail. Article 2219(7) of the Civil Code is express in
stating that moral damages may be recovered in case of libel, slander
or any other form of defamation. From the very publication and
circulation of the subject defamatory and libelous material itself, there
can be no doubt as to the resulting wounded feelings and besmirched
reputation sustained by complainant Rivera. The branding of
defamatory names against him most certainly exposed him to public
contempt and ridicule. As found by the trial court in its judgment of
conviction:
Complainant, when he read the subject publication, was embarrass on
what was written against him, made more unpleasant on the occasion
of the reunion of his son-in-law, who just arrived from the United States
for the first time, was confronted of the above-defamatory publication.
He was worried and depressed, about the comments against him,
affecting his credibility and personality, as representative of many
market organizations in Davao City.
Having been exposed to embarrassment and ridicule occasioned by the
publication of the subject article, Rivera is entitled to moral damages
and attorney's fees.
IN VIEW WHEREOF, the instant petition is DENIED and the assailed CA
Decision dated October 11, 2002 is AFFIRMED. Costs against
petitioners. SO ORDERED.
BIRAOGO vs PHIL TRUTH COMMISION
The role of the Constitution cannot be overlooked. It is through the
Constitution that the fundamental powers of government are
established, limited and defined, and by which these powers are
distributed among the several departments.2 The Constitution is the
basic and paramount law to which all other laws must conform and to
which all persons, including the highest officials of the land, must
defer.3 Constitutional doctrines must remain steadfast no matter what
may be the tides of time. It cannot be simply made to sway and
accommodate the call of situations and much more tailor itself to the
whims and caprices of government and the people who run it.4
For consideration before the Court are two consolidated cases5 both of
which essentially assail the validity and constitutionality of Executive
Order No. 1, dated July 30, 2010, entitled "Creating the Philippine Truth
Commission of 2010."
The first case is G.R. No. 192935, a special civil action for prohibition
instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a
citizen and taxpayer. Biraogo assails Executive Order No. 1 for being
violative of the legislative power of Congress under Section 1, Article VI
of the Constitution6 as it usurps the constitutional authority of the
legislature to create a public office and to appropriate funds therefor.7
The second case, G.R. No. 193036, is a special civil action for certiorari
and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano
Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-
legislators) as incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to
the historic May 2010 elections, when then Senator Benigno Simeon
Aquino III declared his staunch condemnation of graft and corruption
with his slogan, "Kung walang corrupt, walang mahirap." The Filipino
people, convinced of his sincerity and of his ability to carry out this
noble objective, catapulted the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found
a need for a special body to investigate reported cases of graft and
corruption allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010,
signed Executive Order No. 1 establishing the Philippine Truth
Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the
Philippines solemnly enshrines the principle that a public office is a
public trust and mandates that public officers and employees, who are
servants of the people, must at all times be accountable to the latter,
serve them with utmost responsibility, integrity, loyalty and efficiency,
act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of
this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the
political, economic, and social life of a nation; in a very special way it
inflicts untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;
9
WHEREAS, corruption in the Philippines has reached very alarming
levels, and undermined the people’s trust and confidence in the
Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the people’s faith and
confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang mahirap"
expresses a solemn pledge that if elected, he would end corruption and
the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases of
graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines,
gives the President the continuing authority to reorganize the Office of
the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the
Republic of the Philippines, by virtue of the powers vested in me by law,
do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created the
PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by public officers and employees,
their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken thereon to
ensure that the full measure of justice shall be served without fear or
favor.
The Commission shall be composed of a Chairman and four (4)
members who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall have
all the powers of an investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987, is primarily tasked to
conduct a thorough fact-finding investigation of reported cases of graft
and corruption referred to in Section 1, involving third level public
officers and higher, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration and
thereafter submit its finding and recommendations to the President,
Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and
corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related to or
regarding the cases of large scale corruption which it has chosen to
investigate, and to this end require any agency, official or employee of
the Executive Branch, including government-owned or controlled
corporations, to produce documents, books, records and other papers;
c) Upon proper request or representation, obtain information and
documents from the Senate and the House of Representatives records
of investigations conducted by committees thereof relating to matters
or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from
the courts, including the Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to corruption cases
filed with the Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that
purpose, administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as
a state witness to ensure that the ends of justice be fully served, that
such person who qualifies as a state witness under the Revised Rules of
Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the
appropriate prosecutorial authorities, by means of a special or interim
report and recommendation, all evidence on corruption of public
officers and employees and their private sector co-principals,
accomplices or accessories, if any, when in the course of its
investigation the Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under pertinent
applicable laws;
h) Call upon any government investigative or prosecutorial agency such
as the Department of Justice or any of the agencies under it, and the
Presidential Anti-Graft Commission, for such assistance and
cooperation as it may require in the discharge of its functions and
duties;
i) Engage or contract the services of resource persons, professionals
and other personnel determined by it as necessary to carry out its
mandate;
j) Promulgate its rules and regulations or rules of procedure it deems
necessary to effectively and efficiently carry out the objectives of this
Executive Order and to ensure the orderly conduct of its investigations,
proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary
in connection with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. –
Any government official or personnel who, without lawful excuse, fails
to appear upon subpoena issued by the Commission or who, appearing
before the Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when required, shall
be subject to administrative disciplinary action. Any private person who
does the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x x.
SECTION 11. Budget for the Commission. – The Office of the President
shall provide the necessary funds for the Commission to ensure that it
can exercise its powers, execute its functions, and perform its duties
and responsibilities as effectively, efficiently, and expeditiously as
possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall
accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
10
SECTION 16. Transfer of Records and Facilities of the Commission. – x x
x.
SECTION 17. Special Provision Concerning Mandate. If and when in the
judgment of the President there is a need to expand the mandate of
the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly
by way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is
declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect
immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine
Truth Commission (PTC) is a mere ad hoc body formed under the Office
of the President with the primary task to investigate reports of graft
and corruption committed by third-level public officers and employees,
their co-principals, accomplices and accessories during the previous
administration, and thereafter to submit its finding and
recommendations to the President, Congress and the Ombudsman.
Though it has been described as an "independent collegial body," it is
essentially an entity within the Office of the President Proper and
subject to his control. Doubtless, it constitutes a public office, as an ad
hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987. It is not, however, a quasi-judicial body as
it cannot adjudicate, arbitrate, resolve, settle, or render awards in
disputes between contending parties. All it can do is gather, collect and
assess evidence of graft and corruption and make recommendations. It
may have subpoena powers but it has no power to cite people in
contempt, much less order their arrest. Although it is a fact-finding
body, it cannot determine from such facts if probable cause exists as to
warrant the filing of an information in our courts of law. Needless to
state, it cannot impose criminal, civil or administrative penalties or
sanctions.
The PTC is different from the truth commissions in other countries
which have been created as official, transitory and non-judicial fact-
finding bodies "to establish the facts and context of serious violations
of human rights or of international humanitarian law in a country’s
past."9 They are usually established by states emerging from periods of
internal unrest, civil strife or authoritarianism to serve as mechanisms
for transitional justice.
Truth commissions have been described as bodies that share the
following characteristics: (1) they examine only past events; (2) they
investigate patterns of abuse committed over a period of time, as
opposed to a particular event; (3) they are temporary bodies that finish
their work with the submission of a report containing conclusions and
recommendations; and (4) they are officially sanctioned, authorized or
empowered by the State.10 "Commission’s members are usually
empowered to conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their
investigations, the commissions may aim to discover and learn more
about past abuses, or formally acknowledge them. They may aim to
prepare the way for prosecutions and recommend institutional
reforms."11
Thus, their main goals range from retribution to reconciliation. The
Nuremburg and Tokyo war crime tribunals are examples of a
retributory or vindicatory body set up to try and punish those
responsible for crimes against humanity. A form of a reconciliatory
tribunal is the Truth and Reconciliation Commission of South Africa, the
principal function of which was to heal the wounds of past violence and
to prevent future conflict by providing a cathartic experience for
victims.
The PTC is a far cry from South Africa’s model. The latter placed more
emphasis on reconciliation than on judicial retribution, while the
marching order of the PTC is the identification and punishment of
perpetrators. As one writer12 puts it:
The order ruled out reconciliation. It translated the Draconian code
spelled out by Aquino in his inaugural speech: "To those who talk about
reconciliation, if they mean that they would like us to simply forget
about the wrongs that they have committed in the past, we have this
to say: There can be no reconciliation without justice. When we allow
crimes to go unpunished, we give consent to their occurring over and
over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the
petitioners asked the Court to declare it unconstitutional and to enjoin
the PTC from performing its functions. A perusal of the arguments of
the petitioners in both cases shows that they are essentially the same.
The petitioners-legislators summarized them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the
power of the Congress to create a public office and appropriate funds
for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the
Administrative Code of 1987 cannot legitimize E.O. No. 1 because the
delegated authority of the President to structurally reorganize the
Office of the President to achieve economy, simplicity and efficiency
does not include the power to create an entirely new public office
which was hitherto inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes
when it vested the "Truth Commission" with quasi-judicial powers
duplicating, if not superseding, those of the Office of the Ombudsman
created under the 1987 Constitution and the Department of Justice
created under the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively
targets for investigation and prosecution officials and personnel of the
previous administration as if corruption is their peculiar species even as
it excludes those of the other administrations, past and present, who
may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010" violates
the consistent and general international practice of four decades
wherein States constitute truth commissions to exclusively investigate
human rights violations, which customary practice forms part of the
generally accepted principles of international law which the Philippines
is mandated to adhere to pursuant to the Declaration of Principles
enshrined in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility, an
adventure in partisan hostility, a launching pad for trial/conviction by
publicity and a mere populist propaganda to mistakenly impress the
people that widespread poverty will altogether vanish if corruption is
eliminated without even addressing the other major causes of poverty.
(g) The mere fact that previous commissions were not constitutionally
challenged is of no moment because neither laches nor estoppel can
bar an eventual question on the constitutionality and validity of an
executive issuance or even a statute."13
11
In their Consolidated Comment,14 the respondents, through the Office
of the Solicitor General (OSG), essentially questioned the legal standing
of petitioners and defended the assailed executive order with the
following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a
public office because the President’s executive power and power of
control necessarily include the inherent power to conduct
investigations to ensure that laws are faithfully executed and that, in
any event, the Constitution, Revised Administrative Code of 1987 (E.O.
No. 292), 15 Presidential Decree (P.D.) No. 141616 (as amended by P.D.
No. 1772), R.A. No. 9970,17 and settled jurisprudence that authorize
the President to create or form such bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds
because there is no appropriation but a mere allocation of funds
already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions
of the Office of the Ombudsman (Ombudsman) and the Department of
Justice (DOJ), because it is a fact-finding body and not a quasi-judicial
body and its functions do not duplicate, supplant or erode the latter’s
jurisdiction.
4] The Truth Commission does not violate the equal protection clause
because it was validly created for laudable purposes.
The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies to
justify the creation of the PTC such as Presidential Complaint and Action
Commission (PCAC) by President Ramon B. Magsaysay, Presidential
Committee on Administrative Performance Efficiency (PCAPE) by
President Carlos P. Garcia and Presidential Agency on Reform and
Government Operations (PARGO) by President Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the
following are the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to file their
respective petitions and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of
separation of powers by usurping the powers of Congress to create and
to appropriate funds for public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the
Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection
clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
Executive Order No. 1, the Court needs to ascertain whether the
requisites for a valid exercise of its power of judicial review are present.
Like almost all powers conferred by the Constitution, the power of
judicial review is subject to limitations, to wit: (1) there must be an
actual case or controversy calling for the exercise of judicial power; (2)
the person challenging the act must have the standing to question the
validity of the subject act or issuance; otherwise stated, he must have
a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement; (3)
the question of constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must be the very lis
mota of the case.19
Among all these limitations, only the legal standing of the petitioners
has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to
file their petition for failure to demonstrate their personal stake in the
outcome of the case. It argues that the petitioners have not shown that
they have sustained or are in danger of sustaining any personal injury
attributable to the creation of the PTC. Not claiming to be the subject
of the commission’s investigations, petitioners will not sustain injury in
its creation or as a result of its proceedings.20
The Court disagrees with the OSG in questioning the legal standing of
the petitioners-legislators to assail Executive Order No. 1. Evidently,
their petition primarily invokes usurpation of the power of the Congress
as a body to which they belong as members. This certainly justifies their
resolve to take the cudgels for Congress as an institution and present
the complaints on the usurpation of their power and rights as members
of the legislature before the Court. As held in Philippine Constitution
Association v. Enriquez,21
To the extent the powers of Congress are impaired, so is the power of
each member thereof, since his office confers a right to participate in
the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes
a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the
prerogative, powers and privileges vested by the Constitution in their
office remain inviolate. Thus, they are allowed to question the validity
of any official action which, to their mind, infringes on their
prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no
standing to question the creation of the PTC and the budget for its
operations.23 It emphasizes that the funds to be used for the creation
and operation of the commission are to be taken from those funds
already appropriated by Congress. Thus, the allocation and
disbursement of funds for the commission will not entail congressional
action but will simply be an exercise of the President’s power over
contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct injury
attributable to the implementation of Executive Order No. 1. Nowhere
in his petition is an assertion of a clear right that may justify his clamor
for the Court to exercise judicial power and to wield the axe over
presidential issuances in defense of the Constitution. The case of David
v. Arroyo24 explained the deep-seated rules on locus standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice on
a given question." In private suits, standing is governed by the "real-
parties-in interest" rule as contained in Section 2, Rule 3 of the 1997
Rules of Civil Procedure, as amended. It provides that "every action
must be prosecuted or defended in the name of the real party in
interest." Accordingly, the "real-party-in interest" is "the party who
stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit." Succinctly put, the plaintiff’s
standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal
official action, does so as a representative of the general public. He may
be a person who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a "citizen," or
‘taxpayer." In either case, he has to adequately show that he is entitled
to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing
of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in
Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s
suit is in a different category from the plaintiff in a citizen’s suit. In the
12
former, the plaintiff is affected by the expenditure of public funds,
while in the latter, he is but the mere instrument of the public concern.
As held by the New York Supreme Court in People ex rel Case v. Collins:
"In matter of mere public right, however…the people are the real
parties…It is at least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied." With respect to
taxpayer’s suits, Terr v. Jordan held that "the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with,
and thus hinders the activities of governmental agencies engaged in
public service, the United State Supreme Court laid down the more
stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in
Tileston v. Ullman. The same Court ruled that for a private individual to
invoke the judicial power to determine the validity of an executive or
legislative action, he must show that he has sustained a direct injury as
a result of that action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People
v. Vera, it held that the person who impugns the validity of a statute
must have "a personal and substantial interest in the case such that he
has sustained, or will sustain direct injury as a result." The Vera doctrine
was upheld in a litany of cases, such as, Custodio v. President of the
Senate, Manila Race Horse Trainers’ Association v. De la Fuente,
Pascual v. Secretary of Public Works and Anti-Chinese League of the
Philippines v. Felix. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of
transcendental importance, of overreaching significance to society, or
of paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court
held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirements may
be relaxed and a suit may be allowed to prosper even where there is no
direct injury to the party claiming the right of judicial review. In the first
Emergency Powers Cases,27 ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive orders
although they had only an indirect and general interest shared in
common with the public.
The OSG claims that the determinants of transcendental importance28
laid down in CREBA v. ERC and Meralco29 are non-existent in this case.
The Court, however, finds reason in Biraogo’s assertion that the
petition covers matters of transcendental importance to justify the
exercise of jurisdiction by the Court. There are constitutional issues in
the petition which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Where the issues are of
transcendental and paramount importance not only to the public but
also to the Bench and the Bar, they should be resolved for the guidance
of all.30 Undoubtedly, the Filipino people are more than interested to
know the status of the President’s first effort to bring about a promised
change to the country. The Court takes cognizance of the petition not
due to overwhelming political undertones that clothe the issue in the
eyes of the public, but because the Court stands firm in its oath to
perform its constitutional duty to settle legal controversies with
overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth
Commission is a public office and not merely an adjunct body of the
Office of the President.31 Thus, in order that the President may create
a public office he must be empowered by the Constitution, a statute or
an authorization vested in him by law. According to petitioner, such
power cannot be presumed32 since there is no provision in the
Constitution or any specific law that authorizes the President to create
a truth commission.33 He adds that Section 31 of the Administrative
Code of 1987, granting the President the continuing authority to
reorganize his office, cannot serve as basis for the creation of a truth
commission considering the aforesaid provision merely uses verbs such
as "reorganize," "transfer," "consolidate," "merge," and "abolish."34
Insofar as it vests in the President the plenary power to reorganize the
Office of the President to the extent of creating a public office, Section
31 is inconsistent with the principle of separation of powers enshrined
in the Constitution and must be deemed repealed upon the effectivity
thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the
creation of a public office lies within the province of Congress and not
with the executive branch of government. They maintain that the
delegated authority of the President to reorganize under Section 31 of
the Revised Administrative Code: 1) does not permit the President to
create a public office, much less a truth commission; 2) is limited to the
reorganization of the administrative structure of the Office of the
President; 3) is limited to the restructuring of the internal organs of the
Office of the President Proper, transfer of functions and transfer of
agencies; and 4) only to achieve simplicity, economy and efficiency.36
Such continuing authority of the President to reorganize his office is
limited, and by issuing Executive Order No. 1, the President
overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the
creation by the President of a fact-finding body such as a truth
commission. Pointing to numerous offices created by past presidents,
it argues that the authority of the President to create public offices
within the Office of the President Proper has long been recognized.37
According to the OSG, the Executive, just like the other two branches
of government, possesses the inherent authority to create fact-finding
committees to assist it in the performance of its constitutionally
mandated functions and in the exercise of its administrative
functions.38 This power, as the OSG explains it, is but an adjunct of the
plenary powers wielded by the President under Section 1 and his power
of control under Section 17, both of Article VII of the Constitution.39
It contends that the President is necessarily vested with the power to
conduct fact-finding investigations, pursuant to his duty to ensure that
all laws are enforced by public officials and employees of his
department and in the exercise of his authority to assume directly the
functions of the executive department, bureau and office, or interfere
with the discretion of his officials.40 The power of the President to
investigate is not limited to the exercise of his power of control over his
subordinates in the executive branch, but extends further in the
exercise of his other powers, such as his power to discipline
subordinates,41 his power for rule making, adjudication and licensing
purposes42 and in order to be informed on matters which he is entitled
to know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it was
held that the President has the power to reorganize the offices and
agencies in the executive department in line with his constitutionally
granted power of control and by virtue of a valid delegation of the
legislative power to reorganize executive offices under existing
statutes.
Thus, the OSG concludes that the power of control necessarily includes
the power to create offices. For the OSG, the President may create the
PTC in order to, among others, put a closure to the reported large scale
graft and corruption in the government.45
The question, therefore, before the Court is this: Does the creation of
the PTC fall within the ambit of the power to reorganize as expressed
in Section 31 of the Revised Administrative Code? Section 31
contemplates "reorganization" as limited by the following functional
and structural lines: (1) restructuring the internal organization of the
Office of the President Proper by abolishing, consolidating or merging
units thereof or transferring functions from one unit to another; (2)
transferring any function under the Office of the President to any other
Department/Agency or vice versa; or (3) transferring any agency under
the Office of the President to any other Department/Agency or vice
versa. Clearly, the provision refers to reduction of personnel,
13
consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions. These point to situations where a body or an
office is already existent but a modification or alteration thereof has to
be effected. The creation of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the answer to the question is
in the negative.
To say that the PTC is borne out of a restructuring of the Office of the
President under Section 31 is a misplaced supposition, even in the
plainest meaning attributable to the term "restructure"– an "alteration
of an existing structure." Evidently, the PTC was not part of the
structure of the Office of the President prior to the enactment of
Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon.
Executive Secretary,46
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does not
have to end here. We must not lose sight of the very source of the
power – that which constitutes an express grant of power. Under
Section 31, Book III of Executive Order No. 292 (otherwise known as the
Administrative Code of 1987), "the President, subject to the policy in
the Executive Office and in order to achieve simplicity, economy and
efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this
purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado v. Aguirre [323
SCRA 312 (2000)], we ruled that reorganization "involves the reduction
of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions." It takes place when there is an
alteration of the existing structure of government offices or units
therein, including the lines of control, authority and responsibility
between them. The EIIB is a bureau attached to the Department of
Finance. It falls under the Office of the President. Hence, it is subject to
the President’s continuing authority to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the
President’s power of control. Control is essentially the power to alter
or modify or nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the
former with that of the latter.47 Clearly, the power of control is entirely
different from the power to create public offices. The former is inherent
in the Executive, while the latter finds basis from either a valid
delegation from Congress, or his inherent duty to faithfully execute the
laws.
The question is this, is there a valid delegation of power from Congress,
empowering the President to create a public office?
According to the OSG, the power to create a truth commission pursuant
to the above provision finds statutory basis under P.D. 1416, as
amended by P.D. No. 1772.48 The said law granted the President the
continuing authority to reorganize the national government, including
the power to group, consolidate bureaus and agencies, to abolish
offices, to transfer functions, to create and classify functions, services
and activities, transfer appropriations, and to standardize salaries and
materials. This decree, in relation to Section 20, Title I, Book III of E.O.
292 has been invoked in several cases such as Larin v. Executive
Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a
justification for the President to create a public office. Said decree is
already stale, anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the authority to reorganize the
administrative structure of the national government including the
power to create offices and transfer appropriations pursuant to one of
the purposes of the decree, embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of
government will necessitate flexibility in the organization of the
national government.
Clearly, as it was only for the purpose of providing manageability and
resiliency during the interim, P.D. No. 1416, as amended by P.D. No.
1772, became functus oficio upon the convening of the First Congress,
as expressly provided in Section 6, Article XVIII of the 1987 Constitution.
In fact, even the Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the
last whereas clause of P.D. 1416 says "it was enacted to prepare the
transition from presidential to parliamentary. Now, in a parliamentary
form of government, the legislative and executive powers are fused,
correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued.
Now would you agree with me that P.D. 1416 should not be considered
effective anymore upon the promulgation, adoption, ratification of the
1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your
Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize
the entire National Government is deemed repealed, at least, upon the
adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster on
the basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of
the PTC finds justification under Section 17, Article VII of the
Constitution, imposing upon the President the duty to ensure that the
laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in
the three principal branches of government is a grant of all powers
inherent in them. The President’s power to conduct investigations to
aid him in ensuring the faithful execution of laws – in this case,
fundamental laws on public accountability and transparency – is
inherent in the President’s powers as the Chief Executive. That the
authority of the President to conduct investigations and to create
bodies to execute this power is not explicitly mentioned in the
Constitution or in statutes does not mean that he is bereft of such
authority.51 As explained in the landmark case of Marcos v.
Manglapus:52
x x x. The 1987 Constitution, however, brought back the presidential
system of government and restored the separation of legislative,
executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and
balances.
It would not be accurate, however, to state that "executive power" is
the power to enforce the laws, for the President is head of state as well
as head of government and whatever powers inhere in such positions
pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the
laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any
provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers of
the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the
President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government
that is neither legislative nor judicial has to be executive. x x x.
14
Indeed, the Executive is given much leeway in ensuring that our laws
are faithfully executed. As stated above, the powers of the President
are not limited to those specific powers under the Constitution.53 One
of the recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc
committees. This flows from the obvious need to ascertain facts and
determine if laws have been faithfully executed. Thus, in Department
of Health v. Camposano,54 the authority of the President to issue
Administrative Order No. 298, creating an investigative committee to
look into the administrative charges filed against the employees of the
Department of Health for the anomalous purchase of medicines was
upheld. In said case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating
Committee cannot be doubted. Having been constitutionally granted
full control of the Executive Department, to which respondents belong,
the President has the obligation to ensure that all executive officials
and employees faithfully comply with the law. With AO 298 as
mandate, the legality of the investigation is sustained. Such validity is
not affected by the fact that the investigating team and the PCAGC had
the same composition, or that the former used the offices and facilities
of the latter in conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating
bodies to exist is to allow an inquiry into matters which the President is
entitled to know so that he can be properly advised and guided in the
performance of his duties relative to the execution and enforcement of
the laws of the land. And if history is to be revisited, this was also the
objective of the investigative bodies created in the past like the PCAC,
PCAPE, PARGO, the Feliciano Commission, the Melo Commission and
the Zenarosa Commission. There being no changes in the government
structure, the Court is not inclined to declare such executive power as
non-existent just because the direction of the political winds have
changed.
On the charge that Executive Order No. 1 transgresses the power of
Congress to appropriate funds for the operation of a public office,
suffice it to say that there will be no appropriation but only an allotment
or allocations of existing funds already appropriated. Accordingly, there
is no usurpation on the part of the Executive of the power of Congress
to appropriate funds. Further, there is no need to specify the amount
to be earmarked for the operation of the commission because, in the
words of the Solicitor General, "whatever funds the Congress has
provided for the Office of the President will be the very source of the
funds for the commission."55 Moreover, since the amount that would
be allocated to the PTC shall be subject to existing auditing rules and
regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws are
faithfully executed is well recognized. It flows from the faithful-
execution clause of the Constitution under Article VII, Section 17
thereof.56 As the Chief Executive, the president represents the
government as a whole and sees to it that all laws are enforced by the
officials and employees of his department. He has the authority to
directly assume the functions of the executive department.57
Invoking this authority, the President constituted the PTC to primarily
investigate reports of graft and corruption and to recommend the
appropriate action. As previously stated, no quasi-judicial powers have
been vested in the said body as it cannot adjudicate rights of persons
who come before it. It has been said that "Quasi-judicial powers involve
the power to hear and determine questions of fact to which the
legislative policy is to apply and to decide in accordance with the
standards laid down by law itself in enforcing and administering the
same law."58 In simpler terms, judicial discretion is involved in the
exercise of these quasi-judicial power, such that it is exclusively vested
in the judiciary and must be clearly authorized by the legislature in the
case of administrative agencies.
The distinction between the power to investigate and the power to
adjudicate was delineated by the Court in Cariño v. Commission on
Human Rights.59 Thus:
"Investigate," commonly understood, means to examine, explore,
inquire or delve or probe into, research on, study. The dictionary
definition of "investigate" is "to observe or study closely: inquire into
systematically: "to search or inquire into: x x to subject to an official
probe x x: to conduct an official inquiry." The purpose of investigation,
of course, is to discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling, deciding or
resolving a controversy involved in the facts inquired into by application
of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow
up step by step by patient inquiry or observation. To trace or track; to
search into; to examine and inquire into with care and accuracy; to find
out by careful inquisition; examination; the taking of evidence; a legal
inquiry;" "to inquire; to make an investigation," "investigation" being in
turn described as "(a)n administrative function, the exercise of which
ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an
inquiry, judicial or otherwise, for the discovery and collection of facts
concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge,
arbitrate, judge, decide, determine, resolve, rule on, settle. The
dictionary defines the term as "to settle finally (the rights and duties of
the parties to a court case) on the merits of issues raised: x x to pass
judgment on: settle judicially: x x act as judge." And "adjudge" means
"to decide or rule upon as a judge or with judicial or quasi-judicial
powers: x x to award or grant judicially in a case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of
judicial authority. To determine finally. Synonymous with adjudge in its
strictest sense;" and "adjudge" means: "To pass on judicially, to decide,
settle or decree, or to sentence or condemn. x x. Implies a judicial
determination of a fact, and the entry of a judgment." [Italics included.
Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or office.
The function of receiving evidence and ascertaining therefrom the facts
of a controversy is not a judicial function. To be considered as such, the
act of receiving evidence and arriving at factual conclusions in a
controversy must be accompanied by the authority of applying the law
to the factual conclusions to the end that the controversy may be
decided or resolved authoritatively, finally and definitively, subject to
appeals or modes of review as may be provided by law.60 Even
respondents themselves admit that the commission is bereft of any
quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the
Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of the
two offices. As pointed out by the Solicitor General, the
recommendation to prosecute is but a consequence of the overall task
of the commission to conduct a fact-finding investigation."62 The
actual prosecution of suspected offenders, much less adjudication on
the merits of the charges against them,63 is certainly not a function
given to the commission. The phrase, "when in the course of its
investigation," under Section 2(g), highlights this fact and gives
credence to a contrary interpretation from that of the petitioners. The
function of determining probable cause for the filing of the appropriate
complaints before the courts remains to be with the DOJ and the
Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No.
6770 is not exclusive but is shared with other similarly authorized
government agencies. Thus, in the case of Ombudsman v. Galicia,65 it
was written:
This power of investigation granted to the Ombudsman by the 1987
Constitution and The Ombudsman Act is not exclusive but is shared
with other similarly authorized government agencies such as the PCGG
and judges of municipal trial courts and municipal circuit trial courts.
The power to conduct preliminary investigation on charges against
public employees and officials is likewise concurrently shared with the
15
Department of Justice. Despite the passage of the Local Government
Code in 1991, the Ombudsman retains concurrent jurisdiction with the
Office of the President and the local Sanggunians to investigate
complaints against local elective officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the
Ombudsman to investigate criminal cases under Section 15 (1) of R.A.
No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person,
any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of its primary jurisdiction, it may
take over, at any stage, from any investigatory agency of government,
the investigation of such cases. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the
determination of the existence of probable cause. This is categorically
out of the PTC’s sphere of functions. Its power to investigate is limited
to obtaining facts so that it can advise and guide the President in the
performance of his duties relative to the execution and enforcement of
the laws of the land. In this regard, the PTC commits no act of
usurpation of the Ombudsman’s primordial duties.
The same holds true with respect to the DOJ. Its authority under Section
3 (2), Chapter 1, Title III, Book IV in the Revised Administrative Code is
by no means exclusive and, thus, can be shared with a body likewise
tasked to investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the
findings of the PTC are to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano Commission and
the Zenarosa Commission, its findings would, at best, be
recommendatory in nature. And being so, the Ombudsman and the DOJ
have a wider degree of latitude to decide whether or not to reject the
recommendation. These offices, therefore, are not deprived of their
mandated duties but will instead be aided by the reports of the PTC for
possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the
investigative power of the President, the Court finds difficulty in
upholding the constitutionality of Executive Order No. 1 in view of its
apparent transgression of the equal protection clause enshrined in
Section 1, Article III (Bill of Rights) of the 1987 Constitution. Section 1
reads:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative of
this constitutional safeguard. They contend that it does not apply
equally to all members of the same class such that the intent of singling
out the "previous administration" as its sole object makes the PTC an
"adventure in partisan hostility."66 Thus, in order to be accorded with
validity, the commission must also cover reports of graft and corruption
in virtually all administrations previous to that of former President
Arroyo.67
The petitioners argue that the search for truth behind the reported
cases of graft and corruption must encompass acts committed not only
during the administration of former President Arroyo but also during
prior administrations where the "same magnitude of controversies and
anomalies"68 were reported to have been committed against the
Filipino people. They assail the classification formulated by the
respondents as it does not fall under the recognized exceptions
because first, "there is no substantial distinction between the group of
officials targeted for investigation by Executive Order No. 1 and other
groups or persons who abused their public office for personal gain; and
second, the selective classification is not germane to the purpose of
Executive Order No. 1 to end corruption."69 In order to attain
constitutional permission, the petitioners advocate that the
commission should deal with "graft and grafters prior and subsequent
to the Arroyo administration with the strong arm of the law with equal
force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the
"previous administration" as the initial subject of the investigation,
following Section 17 thereof, the PTC will not confine itself to cases of
large scale graft and corruption solely during the said administration.71
Assuming arguendo that the commission would confine its proceedings
to officials of the previous administration, the petitioners argue that no
offense is committed against the equal protection clause for "the
segregation of the transactions of public officers during the previous
administration as possible subjects of investigation is a valid
classification based on substantial distinctions and is germane to the
evils which the Executive Order seeks to correct."72 To distinguish the
Arroyo administration from past administrations, it recited the
following:
First. E.O. No. 1 was issued in view of widespread reports of large scale
graft and corruption in the previous administration which have eroded
public confidence in public institutions. There is, therefore, an urgent
call for the determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a closure to
them by the filing of the appropriate cases against those involved, if
warranted, and to deter others from committing the evil, restore the
people’s faith and confidence in the Government and in their public
servants.
Second. The segregation of the preceding administration as the object
of fact-finding is warranted by the reality that unlike with
administrations long gone, the current administration will most likely
bear the immediate consequence of the policies of the previous
administration.
Third. The classification of the previous administration as a separate
class for investigation lies in the reality that the evidence of possible
criminal activity, the evidence that could lead to recovery of public
monies illegally dissipated, the policy lessons to be learned to ensure
that anti-corruption laws are faithfully executed, are more easily
established in the regime that immediately precede the current
administration.
Fourth. Many administrations subject the transactions of their
predecessors to investigations to provide closure to issues that are
pivotal to national life or even as a routine measure of due diligence
and good housekeeping by a nascent administration like the
Presidential Commission on Good Government (PCGG), created by the
late President Corazon C. Aquino under Executive Order No. 1 to pursue
the recovery of ill-gotten wealth of her predecessor former President
Ferdinand Marcos and his cronies, and the Saguisag Commission
created by former President Joseph Estrada under Administrative
Order No, 53, to form an ad-hoc and independent citizens’ committee
to investigate all the facts and circumstances surrounding "Philippine
Centennial projects" of his predecessor, former President Fidel V.
Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is
that of the equality of right which is embodied in Section 1, Article III of
the 1987 Constitution. The equal protection of the laws is embraced in
the concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a
separate clause, however, to provide for a more specific guaranty
against any form of undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an
unwarranted partiality or prejudice, the sharper weapon to cut it down
is the equal protection clause.74
16
"According to a long line of decisions, equal protection simply requires
that all persons or things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed."75 It "requires
public bodies and institutions to treat similarly situated individuals in a
similar manner."76 "The purpose of the equal protection clause is to
secure every person within a state’s jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of a
statue or by its improper execution through the state’s duly constituted
authorities."77 "In other words, the concept of equal justice under the
law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."78
The equal protection clause is aimed at all official state actions, not just
those of the legislature.79 Its inhibitions cover all the departments of
the government including the political and executive departments, and
extend to all actions of a state denying equal protection of the laws,
through whatever agency or whatever guise is taken. 80
It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. Indeed,
the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has
four requisites: (1) The classification rests on substantial distinctions;
(2) It is germane to the purpose of the law; (3) It is not limited to existing
conditions only; and
(4) It applies equally to all members of the same class.81 "Superficial
differences do not make for a valid classification."82
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class.83 "The classification will be regarded as invalid if all the members
of the class are not similarly treated, both as to rights conferred and
obligations imposed. It is not necessary that the classification be made
with absolute symmetry, in the sense that the members of the class
should possess the same characteristics in equal degree. Substantial
similarity will suffice; and as long as this is achieved, all those covered
by the classification are to be treated equally. The mere fact that an
individual belonging to a class differs from the other members, as long
as that class is substantially distinguishable from all others, does not
justify the non-application of the law to him."84
The classification must not be based on existing circumstances only, or
so constituted as to preclude addition to the number included in the
class. It must be of such a nature as to embrace all those who may
thereafter be in similar circumstances and conditions. It must not leave
out or "underinclude" those that should otherwise fall into a certain
classification. As elucidated in Victoriano v. Elizalde Rope Workers'
Union85 and reiterated in a long line of cases,86
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state. It is
not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should
be affected alike by a statute. Equality of operation of statutes does not
mean indiscriminate operation on persons merely as such, but on
persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not
forbid discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed or
by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A
law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be
reasonable, which means that the classification should be based on
substantial distinctions which make for real differences, that it must be
germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each member
of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or
rational basis and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be
struck down as violative of the equal protection clause. The clear
mandate of the envisioned truth commission is to investigate and find
out the truth "concerning the reported cases of graft and corruption
during the previous administration"87 only. The intent to single out the
previous administration is plain, patent and manifest. Mention of it has
been made in at least three portions of the questioned executive order.
Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases of
graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. – There is hereby created the
PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by public officers and employees,
their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken thereon to
ensure that the full measure of justice shall be served without fear or
favor.
SECTION 2. Powers and Functions. – The Commission, which shall have
all the powers of an investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987, is primarily tasked to
conduct a thorough fact-finding investigation of reported cases of graft
and corruption referred to in Section 1, involving third level public
officers and higher, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration and
thereafter submit its finding and recommendations to the President,
Congress and the Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration
is but just a member of a class, that is, a class of past administrations.
It is not a class of its own. Not to include past administrations similarly
situated constitutes arbitrariness which the equal protection clause
cannot sanction. Such discriminating differentiation clearly
reverberates to label the commission as a vehicle for vindictiveness and
selective retribution.
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are
not substantial enough to merit the restriction of the investigation to
the "previous administration" only. The reports of widespread
corruption in the Arroyo administration cannot be taken as basis for
distinguishing said administration from earlier administrations which
were also blemished by similar widespread reports of impropriety. They
are not inherent in, and do not inure solely to, the Arroyo
administration. As Justice Isagani Cruz put it, "Superficial differences do
not make for a valid classification."88
The public needs to be enlightened why Executive Order No. 1 chooses
to limit the scope of the intended investigation to the previous
administration only. The OSG ventures to opine that "to include other
past administrations, at this point, may unnecessarily overburden the
commission and lead it to lose its effectiveness."89 The reason given is
specious. It is without doubt irrelevant to the legitimate and noble
objective of the PTC to stamp out or "end corruption and the evil it
breeds."90
The probability that there would be difficulty in unearthing evidence or
that the earlier reports involving the earlier administrations were
17
already inquired into is beside the point. Obviously, deceased
presidents and cases which have already prescribed can no longer be
the subjects of inquiry by the PTC. Neither is the PTC expected to
conduct simultaneous investigations of previous administrations, given
the body’s limited time and resources. "The law does not require the
impossible" (Lex non cogit ad impossibilia).91
Given the foregoing physical and legal impossibility, the Court logically
recognizes the unfeasibility of investigating almost a century’s worth of
graft cases. However, the fact remains that Executive Order No. 1
suffers from arbitrary classification. The PTC, to be true to its mandate
of searching for the truth, must not exclude the other past
administrations. The PTC must, at least, have the authority to
investigate all past administrations. While reasonable prioritization is
permitted, it should not be arbitrary lest it be struck down for being
unconstitutional. In the often quoted language of Yick Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in appearance,
yet, if applied and administered by public authority with an evil eye and
an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to
their rights, the denial of equal justice is still within the prohibition of
the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its
scope is limited. The Court, however, is of the considered view that
although its focus is restricted, the constitutional guarantee of equal
protection under the laws should not in any way be circumvented. The
Constitution is the fundamental and paramount law of the nation to
which all other laws must conform and in accordance with which all
private rights determined and all public authority administered.93 Laws
that do not conform to the Constitution should be stricken down for
being unconstitutional.94 While the thrust of the PTC is specific, that is,
for investigation of acts of graft and corruption, Executive Order No. 1,
to survive, must be read together with the provisions of the
Constitution. To exclude the earlier administrations in the guise of
"substantial distinctions" would only confirm the petitioners’ lament
that the subject executive order is only an "adventure in partisan
hostility." In the case of US v. Cyprian,95 it was written: "A rather
limited number of such classifications have routinely been held or
assumed to be arbitrary; those include: race, national origin, gender,
political activity or membership in a political party, union activity or
membership in a labor union, or more generally the exercise of first
amendment rights."
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who naturally
belong to the class.96 "Such a classification must not be based on
existing circumstances only, or so constituted as to preclude additions
to the number included within a class, but must be of such a nature as
to embrace all those who may thereafter be in similar circumstances
and conditions. Furthermore, all who are in situations and
circumstances which are relative to the discriminatory legislation and
which are indistinguishable from those of the members of the class
must be brought under the influence of the law and treated by it in the
same way as are the members of the class."97
The Court is not unaware that "mere underinclusiveness is not fatal to
the validity of a law under the equal protection clause."98 "Legislation
is not unconstitutional merely because it is not all-embracing and does
not include all the evils within its reach."99 It has been written that a
regulation challenged under the equal protection clause is not devoid
of a rational predicate simply because it happens to be incomplete.100
In several instances, the underinclusiveness was not considered a valid
reason to strike down a law or regulation where the purpose can be
attained in future legislations or regulations. These cases refer to the
"step by step" process.101 "With regard to equal protection claims, a
legislature does not run the risk of losing the entire remedial scheme
simply because it fails, through inadvertence or otherwise, to cover
every evil that might conceivably have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That the
previous administration was picked out was deliberate and intentional
as can be gleaned from the fact that it was underscored at least three
times in the assailed executive order. It must be noted that Executive
Order No. 1 does not even mention any particular act, event or report
to be focused on unlike the investigative commissions created in the
past. "The equal protection clause is violated by purposeful and
intentional discrimination."103
To disprove petitioners’ contention that there is deliberate
discrimination, the OSG clarifies that the commission does not only
confine itself to cases of large scale graft and corruption committed
during the previous administration.104 The OSG points to Section 17 of
Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the
judgment of the President there is a need to expand the mandate of
the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly
by way of a supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the President
the discretion to expand the scope of investigations of the PTC so as to
include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in
the future. Such expanded mandate of the commission will still depend
on the whim and caprice of the President. If he would decide not to
include them, the section would then be meaningless. This will only
fortify the fears of the petitioners that the Executive Order No. 1 was
"crafted to tailor-fit the prosecution of officials and personalities of the
Arroyo administration."105
The Court tried to seek guidance from the pronouncement in the case
of Virata v. Sandiganbayan,106 that the "PCGG Charter (composed of
Executive Orders Nos. 1, 2 and 14) does not violate the equal protection
clause." The decision, however, was devoid of any discussion on how
such conclusory statement was arrived at, the principal issue in said
case being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not
the Supreme Court, in the exercise of its constitutionally mandated
power of Judicial Review with respect to recent initiatives of the
legislature and the executive department, is exercising undue
interference. Is the Highest Tribunal, which is expected to be the
protector of the Constitution, itself guilty of violating fundamental
tenets like the doctrine of separation of powers? Time and again, this
issue has been addressed by the Court, but it seems that the present
political situation calls for it to once again explain the legal basis of its
action lest it continually be accused of being a hindrance to the nation’s
thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the
1987 Constitution, is vested with Judicial Power that "includes the duty
of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine
whether or not there has been a grave of abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the power of
judicial review which is the power to declare a treaty, international or
executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation unconstitutional. This power also
includes the duty to rule on the constitutionality of the application, or
operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations. These provisions, however, have
been fertile grounds of conflict between the Supreme Court, on one
hand, and the two co-equal bodies of government, on the other. Many
times the Court has been accused of asserting superiority over the
other departments.
To answer this accusation, the words of Justice Laurel would be a good
source of enlightenment, to wit: "And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority
18
over the other departments; it does not in reality nullify or invalidate
an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which that instrument
secures and guarantees to them."107
Thus, the Court, in exercising its power of judicial review, is not
imposing its own will upon a co-equal body but rather simply making
sure that any act of government is done in consonance with the
authorities and rights allocated to it by the Constitution. And, if after
said review, the Court finds no constitutional violations of any sort,
then, it has no more authority of proscribing the actions under review.
Otherwise, the Court will not be deterred to pronounce said act as void
and unconstitutional.
It cannot be denied that most government actions are inspired with
noble intentions, all geared towards the betterment of the nation and
its people. But then again, it is important to remember this ethical
principle: "The end does not justify the means." No matter how noble
and worthy of admiration the purpose of an act, but if the means to be
employed in accomplishing it is simply irreconcilable with constitutional
parameters, then it cannot still be allowed.108 The Court cannot just
turn a blind eye and simply let it pass. It will continue to uphold the
Constitution and its enshrined principles.
"The Constitution must ever remain supreme. All must bow to the
mandate of this law. Expediency must not be allowed to sap its strength
nor greed for power debase its rectitude."109
Lest it be misunderstood, this is not the death knell for a truth
commission as nobly envisioned by the present administration. Perhaps
a revision of the executive issuance so as to include the earlier past
administrations would allow it to pass the test of reasonableness and
not be an affront to the Constitution. Of all the branches of the
government, it is the judiciary which is the most interested in knowing
the truth and so it will not allow itself to be a hindrance or obstacle to
its attainment. It must, however, be emphasized that the search for the
truth must be within constitutional bounds for "ours is still a
government of laws and not of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is
hereby declared UNCONSTITUTIONAL insofar as it is violative of the
equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and
desist from carrying out the provisions of Executive Order No. 1.
SO ORDERED.
LAUREL vs DESIERTO
On June 13, 1991, President Corazon C. Aquino issued Administrative
Order No. 223 constituting a Committee for the preparation of the
National Centennial Celebration in 1998. The Committee was
mandated to take charge of the nationwide preparations for the
National Celebration of the Philippine Centennial of the Declaration of
Philippine Independence and the Inauguration of the Malolos
Congress.[1]
Subsequently, President Fidel V. Ramos issued Executive Order No. 128,
reconstituting the Committee for the preparation of the National
Centennial Celebrations in 1998. It renamed the Committee as the
National Centennial Commission. Appointed to chair the reconstituted
Commission was Vice-President Salvador H. Laurel. Presidents
Diosdado M. Macapagal and Corazon C. Aquino were named Honorary
Chairpersons.[2]
Characterized as an ad-hoc body, the existence of the Commission shall
terminate upon the completion of all activities related to the
Centennial Celebrations.[3] Like its predecessor Committee, the
Commission was tasked to take charge of the nationwide preparations
for the National Celebration of the Philippine Centennial of the
Declaration of Philippine Independence and the Inauguration of the
Malolos Congress.
Per Section 6 of the Executive Order, the Commission was also charged
with the responsibility to prepare, for approval of the President, a
Comprehensive Plan for the Centennial Celebrations within six (6)
months from the effectivity of the Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:
Sec. 3. The Commission shall be provided with technical and
administrative staff support by a Secretariat to be composed of, among
others, detailed personnel from the Presidential Management Staff,
the National Commission for Culture and the Arts, and the National
Historical Institute. Said Secretariat shall be headed by a full time
Executive Director who shall be designated by the President.
Sec. 4. The Commission shall be funded with an initial budget to be
drawn from the Department of Tourism and the presidents Contingent
Fund, in an amount to be recommended by the Commission, and
approved by the President. Appropriations for succeeding years shall
be incorporated in the budget of the Office of the President.
Subsequently, a corporation named the Philippine Centennial Expo 98
Corporation (Expocorp) was created.[4] Petitioner was among the nine
(9) Expocorp incorporators, who were also its first nine (9) directors.
Petitioner was elected Expocorp Chief Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a
privilege speech in the Senate denouncing alleged anomalies in the
construction and operation of the Centennial Exposition Project at the
Clark Special Economic Zone. Upon motion of Senator Franklin Drilon,
Senator Cosetengs privilege speech was referred to the Committee on
Accountability of Public Officers and Investigation (The Blue Ribbon
Committee) and several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative
Order No. 35, creating an ad hoc and independent citizens committee
to investigate all the facts and circumstances surrounding the
Philippine centennial projects, including its component activities.
Former Senator Rene A.V. Saguisag was appointed to chair the
Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the
Secretary of the Senate its Committee Final Report No. 30 dated
February 26, 1999. Among the Committees recommendations was the
prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of
NCC and of EXPOCORP for violating the rules on public bidding, relative
to the award of centennial contracts to AK (Asia Construction &
Development Corp.); for exhibiting manifest bias in the issuance of the
NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring) even
in the absence of a valid contract that has caused material injury to
government and for participating in the scheme to preclude audit by
COA of the funds infused by the government for the implementation of
the said contracts all in violation of the anti-graft law.[5]
Later, on November 5, 1999, the Saguisag Committee issued its own
report. It recommended the further investigation by the Ombudsman,
and indictment, in proper cases of, among others, NCC Chair Salvador
H. Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in
relation to Section 11 of R.A. No. 6713, and Article 217 of the Revised
Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee
were apparently referred to the Fact-finding and Intelligence Bureau of
the Office of the Ombudsman. On January 27, 2000, the Bureau issued
its Evaluation Report, recommending:
1. that a formal complaint be filed and preliminary investigation be
conducted before the Evaluation and Preliminary Investigation Bureau
(EPIB), Office of the Ombudsman against former NCC and EXPOCORP
chair Salvador H. Laurel, former EXPOCORP President Teodoro Q. Pea
and AK President Edgardo H. Angeles for violation of Sec. 3(e) and (g)
19
of R.A. No. 3019, as amended in relation to PD 1594 and COA Rules and
Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the
nominal complainant.[6]
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the
Evaluation and Preliminary Investigation Bureau, directed petitioner to
submit his counter-affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a
Motion to Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioners
motion to dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13,
2000 Order but the motion was denied in an Order dated October 5,
2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation
Bureau issued a resolution finding probable cause to indict respondents
SALVADOR H. LAUREL and TEODORO Q. PEA before the Sandiganbayan
for conspiring to violate Section 3(e) of Republic Act No. 3019, in
relation to Republic Act No. 1594. The resolution also directed that an
information for violation of the said law be filed against Laurel and Pea.
Ombudsman Aniano A. Desierto approved the resolution with respect
to Laurel but dismissed the charge against Pea.
In a Resolution dated September 24, 2001, the Court issued a
temporary restraining order, commanding respondents to desist from
filing any information before the Sandiganbayan or any court against
petitioner for alleged violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard
the parties in oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that
he is not a public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL
WHICH UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION
WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT
PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE
CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED
CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC
OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS
NOT A PUBLIC OFFICER AS DEFINED UNDER THE ANTI-GRAFT &
CORRUPT PRACTICES ACT.[7]
In addition, petitioner in his reply[8] invokes this Courts decision in Uy
vs. Sandiganbayan,[9] where it was held that the jurisdiction of the
Ombudsman was limited to cases cognizable by the Sandiganbayan,
i.e., over public officers of Grade 27 and higher. As petitioners position
was purportedly not classified as Grade 27 or higher, the
Sandiganbayan and, consequently, the Ombudsman, would have no
jurisdiction over him.
This last contention is easily dismissed. In the Courts decision in Uy, we
held that it is the prosecutor, not the Ombudsman, who has the
authority to file the corresponding information/s against petitioner in
the regional trial court. The Ombudsman exercises prosecutorial
powers only in cases cognizable by the Sandiganbayan.
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the authority
of the State and regular provincial and city prosecutors under the
Department of Justice to have control over prosecution of cases falling
within the jurisdiction of the regular courts. The investigation and
prosecutorial powers of the Ombudsman relate to cases rightfully
falling within the jurisdiction of the Sandiganbayan under Section 15 (1)
of R.A. 6770 (An Act Providing for the Functional and Structural
Organization of the Office of the Ombudsman, and for other purposes)
which vests upon the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan And this is further buttressed by
Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the
Special Prosecutor shall have the power to conduct preliminary
investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan. Thus, repeated references to the Sandiganbayans
jurisdiction clearly serve to limit the Ombudsmans and Special
Prosecutors authority to cases cognizable by the Sandiganbayan.
[Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for
clarification by the Ombudsman in the same case, the Court set aside
the foregoing pronouncement in its Resolution dated March 20, 2001.
The Court explained the rationale for this reversal:
The power to investigate and to prosecute granted by law to the
Ombudsman is plenary and unqualified. It pertains to any act or
omission of any public officer or employee when such act or omission
appears to be illegal, unjust, improper or inefficient. The law does not
make a distinction between cases cognizable by the Sandiganbayan and
those cognizable by regular courts. It has been held that the clause any
illegal act or omission of any public official is broad enough to embrace
any crime committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15(1) giving the Ombudsman
primary jurisdiction over cases cognizable by the Sandiganbayan, and
Section 11(4) granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan, should not be construed as confining
the scope of the investigatory and prosecutory power of the
Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan. The law defines such primary
jurisdiction as authorizing the Ombudsman to take over, at any stage,
from any investigatory agency of the government, the investigation of
such cases. The grant of this authority does not necessarily imply the
exclusion from its jurisdiction of cases involving public officers and
employees by other courts. The exercise by the Ombudsman of his
primary jurisdiction over cases cognizable by the Sandiganbayan is not
incompatible with the discharge of his duty to investigate and
prosecute other offenses committed by public officers and employees.
Indeed, it must be stressed that the powers granted by the legislature
to the Ombudsman are very broad and encompass all kinds of
malfeasance, misfeasance and non-feasance committed by public
officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not
be equated with the limited authority of the Special Prosecutor under
Section 11 of RA 6770. The Office of the Special Prosecutor is merely a
component of the Office of the Ombudsman and may only act under
the supervision and control and upon authority of the Ombudsman. Its
power to conduct preliminary investigation and to prosecute is limited
to criminal cases within the jurisdiction of the Sandiganbayan.
Certainly, the lawmakers did not intend to confine the investigatory and
prosecutory power of the Ombudsman to these types of cases. The
Ombudsman is mandated by law to act on all complaints against
officers and employees of the government and to enforce their
administrative, civil and criminal liability in every case where the
evidence warrants. To carry out this duty, the law allows him to utilize
20
the personnel of his office and/or designate any fiscal, state prosecutor
or lawyer in the government service to act as special investigator or
prosecutor to assist in the investigation and prosecution of certain
cases. Those designated or deputized to assist him work under his
supervision and control. The law likewise allows him to direct the
Special Prosecutor to prosecute cases outside the Sandiganbayans
jurisdiction in accordance with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and
employees is one of the most important functions of the Ombudsman.
In passing RA 6770, the Congress deliberately endowed the
Ombudsman with such power to make him a more active and effective
agent of the people in ensuring accountability in public office. A review
of the development of our Ombudsman law reveals this intent.
[Emphasis in the original.]
Having disposed of this contention, we proceed to the principal
grounds upon which petitioner relies. We first address the argument
that petitioner, as Chair of the NCC, was not a public officer.
The Constitution[10] describes the Ombudsman and his Deputies as
protectors of the people, who shall act promptly on complaints filed in
any form or manner against public officials or employees of the
government, or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations. Among the
awesome powers, functions, and duties vested by the Constitution[11]
upon the Office of the Ombudsman is to [i]nvestigate any act or
omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient.
The foregoing constitutional provisions are substantially reproduced in
R.A. No. 6770, otherwise known as the Ombudsman Act of 1989.
Sections 13 and 15(1) of said law respectively provide:
SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of
the people shall act promptly on complaints file in any form or manner
against officers or employees of the Government, or of any subdivision,
agency or instrumentality thereof, including government-owned or
controlled corporations, and enforce their administrative, civil and
criminal liability in every case where the evidence warrants in order to
promote efficient service by the Government to the people.
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman
shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person,
any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may
take over, at any stage, from any investigatory agency of Government,
the investigation of such cases;
x x x.
The coverage of the law appears to be limited only by Section 16, in
relation to Section 13, supra:
SEC 16. Applicability. The provisions of this Act shall apply to all kinds of
malfeasance, misfeasance and non-feasance that have been
committed by any officer or employee as mentioned in Section 13
hereof, during his tenure of office.
In sum, the Ombudsman has the power to investigate any malfeasance,
misfeasance and non-feasance by a public officer or employee of the
government, or of any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations.[12]
Neither the Constitution nor the Ombudsman Act of 1989, however,
defines who public officers are. A definition of public officers cited in
jurisprudence[13] is that provided by Mechem, a recognized authority
on the subject:
A public office is the right, authority and duty, created and conferred
by law, by which, for a given period, either fixed by law or enduring at
the pleasure of the creating power, an individual is invested with some
portion of the sovereign functions of the government, to be exercised
by him for the benefit of the public. The individual so invested is a public
officer.[14]
The characteristics of a public office, according to Mechem, include the
delegation of sovereign functions, its creation by law and not by
contract, an oath, salary, continuance of the position, scope of duties,
and the designation of the position as an office.[15]
Petitioner submits that some of these characteristics are not present in
the position of NCC Chair, namely: (1) the delegation of sovereign
functions; (2) salary, since he purportedly did not receive any
compensation; and (3) continuance, the tenure of the NCC being
temporary.
Mechem describes the delegation to the individual of some of the
sovereign functions of government as [t]he most important
characteristic in determining whether a position is a public office or not.
The most important characteristic which distinguishes an office from an
employment or contract is that the creation and conferring of an office
involves a delegation to the individual of some of the sovereign
functions of government, to be exercised by him for the benefit of the
public; that some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches, for the time being, to be
exercised for the public benefit. Unless the powers conferred are of this
nature, the individual is not a public officer.[16]
Did E.O. 128 delegate the NCC with some of the sovereign functions of
government? Certainly, the law did not delegate upon the NCC
functions that can be described as legislative or judicial. May the
functions of the NCC then be described as executive?
We hold that the NCC performs executive functions. The executive
power is generally defined as the power to enforce and administer the
laws. It is the power of carrying the laws into practical operation and
enforcing their due observance.[17] The executive function, therefore,
concerns the implementation of the policies as set forth by law.
The Constitution provides in Article XIV (Education, Science and
Technology, Arts, Culture, and Sports) thereof:
Sec. 15. Arts and letters shall enjoy the patronage of the State. The
State shall conserve, promote, and popularize the nations historical and
cultural heritage and resources, as well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of the
Committee for the National Centennial Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is to be celebrated
in 1998, and the centennial presents an important vehicle for fostering
nationhood and a strong sense of Filipino identity;
Whereas, the centennial can effectively showcase Filipino heritage and
thereby strengthen Filipino values;
Whereas, the success of the Centennial Celebrations may be insured
only through long-range planning and continuous developmental
programming;
Whereas, the active participation of the private sector in all areas of
special expertise and capability, particularly in communication and
information dissemination, is necessary for long-range planning and
continuous developmental programming;
Whereas, there is a need to create a body which shall initiate and
undertake the primary task of harnessing the multisectoral
components from the business, cultural, and business sectors to serve
as effective instruments from the launching and overseeing of this long-
term project;
21
x x x.
E.O. No. 128, reconstituting the Committee for the National Centennial
Celebrations in 1998, cited the need to strengthen the said Committee
to ensure a more coordinated and synchronized celebrations of the
Philippine Centennial and wider participation from the government and
non-government or private organizations. It also referred to the need
to rationalize the relevance of historical links with other countries.
The NCC was precisely created to execute the foregoing policies and
objectives, to carry them into effect. Thus, the Commission was vested
with the following functions:
(a) To undertake the overall study, conceptualization, formulation and
implementation of programs and projects on the utilization of culture,
arts, literature and media as vehicles for history, economic endeavors,
and reinvigorating the spirit of national unity and sense of
accomplishment in every Filipino in the context of the Centennial
Celebrations. In this regard, it shall include a Philippine National
Exposition 98 within Metro Manila, the original eight provinces, and
Clark Air Base as its major venues;
(b) To act as principal coordinator for all the activities related to
awareness and celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination
of all information about the plans and events for the Centennial
Celebrations;
(d) To constitute working groups which shall undertake the
implementation of the programs and projects;
(e) To prioritize the refurbishment of historical sites and structures
nationwide. In this regard, the Commission shall formulate schemes
(e.g. lease-maintained-and-transfer, build-operate-transfer, and similar
arrangements) to ensure the preservation and maintenance of the
historical sites and structures;
(f) To call upon any government agency or instrumentality and
corporation, and to invite private individuals and organizations to assist
it in the performance of its tasks; and,
(g) Submit regular reports to the President on the plans, programs,
projects, activities as well as the status of the preparations for the
Celebration.[18]
It bears noting the President, upon whom the executive power is
vested,[19] created the NCC by executive order. Book III (Office of the
President), Chapter 2 (Ordinance Power), Section 2 describes the
nature of executive orders:
SEC. 2. Executive Orders. Acts of the President providing for rules of a
general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive
orders. [Underscoring ours.]
Furthermore, the NCC was not without a role in the countrys economic
development, especially in Central Luzon. Petitioner himself admitted
as much in the oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, dont
you agree that the task of the centennial commission was also to focus
on the long term over all socio economic development of the zone and
Central Luzon by attracting investors in the area because of the
eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I
wanted to touch on by lack of material time I could not but that is a very
important point. When I was made Chairman I wanted the Expo to be
in Batangas because I am a Batangeo but President Ramos said Mr. Vice
President the Central Luzon is suffering, suffering because of the
eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery
in that area by putting this Expo in Clark Field and so it was done I
agreed and Your Honor if I may also mention we wanted to generate
employment aside from attracting business investments and
employment. And the Estrada administration decided to junk this
project there 48, 40 thousand people who lost job, they were employed
in Expo. And our target was to provide 75 thousand jobs. It would have
really calibrated, accelerated the development of Central Luzon. Now,
I think they are going back to that because they had the airport and
there are plan to revive the Expo site into key park which was the
original plan.
There can hardly be any dispute that the promotion of industrialization
and full employment is a fundamental state policy.[20]
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla[21] that
the holding by a municipality of a town fiesta is a proprietary rather
than a governmental function. Petitioner argues that the holding of a
nationwide celebration which marked the nations 100th birthday may
be likened to a national fiesta which involved only the exercise of the
national governments proprietary function.[22] In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised
Administrative Code] simply gives authority to the municipality to
[celebrate] a yearly fiesta but it does not impose upon it a duty to
observe one. Holding a fiesta even if the purpose is to commemorate a
religious or historical event of the town is in essence an act for the
special benefit of the community and not for the general welfare of the
public performed in pursuance of a policy of the state. The mere fact
that the celebration, as claimed, was not to secure profit or gain but
merely to provide entertainment to the town inhabitants is not a
conclusive test. For instance, the maintenance of parks is not a source
of income for the town, nonetheless it is [a] private undertaking as
distinguished from the maintenance of public schools, jails, and the like
which are for public service.
As stated earlier, there can be no hard and fast rule for purposes of
determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are to
be considered and will be decisive. The basic element, however
beneficial to the public the undertaking may be, is that it is government
in essence, otherwise, the function becomes private or propriety in
character. Easily, no governmental or public policy of the state is
involved in the celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing
doctrine. Note that the Court cautioned that there can be no hard and
fast rule for purposes of determining the true nature of an undertaking
or function of a municipality; the surrounding circumstances of a
particular case are to be considered and will be decisive. Thus, in
footnote 15 of Torio, the Court, citing an American case, illustrated how
the surrounding circumstances plus the political, social, and cultural
backgrounds could produce a conclusion different from that in Torio:
We came across an interesting case which shows that surrounding
circumstances plus the political, social, and cultural backgrounds may
have a decisive bearing on this question. The case of Pope v. City of New
Haven, et al. was an action to recover damages for personal injuries
caused during a Fourth of July fireworks display resulting in the death
of a bystander alleged to have been caused by defendants negligence.
The defendants demurred to the complaint invoking the defense that
the city was engaged in the performance of a public governmental duty
from which it received no pecuniary benefit and for negligence in the
performance of which no statutory liability is imposed. This demurrer
was sustained by the Superior Court of New Haven Country. Plaintiff
sought to amend his complaint to allege that the celebration was for
the corporate advantage of the city. This was denied. In affirming the
order, the Supreme Court of Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent
performance of purely public governmental duties, unless made liable
by statute.
22
A municipality corporation, which under permissive authority of its
charter or of statute, conducted a public Fourth of July celebration,
including a display of fireworks, and sent up a bomb intended to
explode in the air, but which failed to explode until it reached the
ground, and then killed a spectator, was engaged in the performance
of a governmental duty. (99 A.R. 51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from [this]
excerpt:
July 4th, when that date falls upon Sunday, July 5th, is made a public
holiday, called Independence Day, by our statutes. All or nearly all of
the other states have similar statutes. While there is no United States
statute making a similar provision, the different departments of the
government recognize, and have recognized since the government was
established, July 4th as a national holiday. Throughout the country it
has been recognized and celebrated as such. These celebrations,
calculated to entertain and instruct the people generally and to arouse
and stimulate patriotic sentiments and love of country, frequently take
the form of literary exercises consisting of patriotic speeches and the
reading of the Constitution, accompanied by a musical program
including patriotic air sometimes preceded by the firing of cannon and
followed by fireworks. That such celebrations are of advantage to the
general public and their promotion a proper subject of legislation can
hardly be questioned. x x x
Surely, a town fiesta cannot compare to the National Centennial
Celebrations. The Centennial Celebrations was meant to commemorate
the birth of our nation after centuries of struggle against our former
colonial master, to memorialize the liberation of our people from
oppression by a foreign power. 1998 marked 100 years of
independence and sovereignty as one united nation. The Celebrations
was an occasion to reflect upon our history and reinvigorate our
patriotism. As A.O. 223 put it, it was a vehicle for fostering nationhood
and a strong sense of Filipino identity, an opportunity to showcase
Filipino heritage and thereby strengthen Filipino values. The
significance of the Celebrations could not have been lost on petitioner,
who remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we
wanted to rekindle the love for freedom, love for country, that is the
over-all goal that has to make everybody feel proud that he is a Filipino,
proud of our history, proud of what our forefather did in their time. x x
x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public
office, and petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his
tenure is of little consequence. A salary is a usual but not a necessary
criterion for determining the nature of the position. It is not conclusive.
The salary is a mere incident and forms no part of the office. Where a
salary or fees is annexed, the office is provided for it is a naked or
honorary office, and is supposed to be accepted merely for the public
good.[23] Hence, the office of petitioner as NCC Chair may be
characterized as an honorary office, as opposed to a lucrative office or
an office of profit, i.e., one to which salary, compensation or fees are
attached.[24] But it is a public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an
ad-hoc body make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration,
and certainly a position which is merely temporary and local cannot
ordinarily be considered an office. But, says Chief Justice Marshall, if a
duty be a continuing one, which is defined by rules prescribed by the
government and not by contract, which an individual is appointed by
government to perform, who enters on the duties pertaining to his
station without any contract defining them, if those duties continue
though the person be changed, -- it seems very difficult to distinguish
such a charge or employment from an office of the person who
performs the duties from an officer.
At the same time, however, this element of continuance can not be
considered as indispensable, for, if the other elements are present it
can make no difference, says Pearson, C.J., whether there be but one
act or a series of acts to be done, -- whether the office expires as soon
as the one act is done, or is to be held for years or during good
behavior.[25]
Our conclusion that petitioner is a public officer finds support in In Re
Corliss.[26] There the Supreme Court of Rhode Island ruled that the
office of Commissioner of the United States Centennial Commission is
an office of trust as to disqualify its holder as elector of the United
States President and Vice-President. (Under Article II of the United
States Constitution, a person holding an office of trust or profit under
the United States is disqualified from being appointed an elector.)
x x x. We think a Commissioner of the United States Centennial
Commission holds an office of trust under the United States, and that
he is therefore disqualified for the office of elector of President and
Vice-President of the United States.
The commission was created under a statute of the United States
approved March 3, 1871. That statute provides for the holding of an
exhibition of American and foreign arts, products, and manufactures,
under the auspices of the government of the United States, and for the
constitution of a commission, to consist of more than one delegate
from each State and from each Territory of the United States, whose
functions shall continue until close of the exhibition, and whose duty it
shall be to prepare and superintend the execution of the plan for
holding the exhibition. Under the statute the commissioners are
appointed by the President of the United States, on the nomination of
the governor of the States and Territories respectively. Various duties
were imposed upon the commission, and under the statute provision
was to be made for it to have exclusive control of the exhibit before the
President should announce, by proclamation, the date and place of
opening and holding the exhibition. By an act of Congress approved
June 1st, 1872, the duties and functions of the commission were further
increased and defined. That act created a corporation, called The
Centennial Board of Finance, to cooperate with the commission and to
raise and disburse the funds. It was to be organized under the direction
of the commission. The seventh section of the act provides that the
grounds for exhibition shall be prepared and the buildings erected by
the corporation, in accordance with plans which shall have been
adopted by the United States Centennial Commission; and the rules
and regulations of said corporation, governing rates for entrance and
admission fees, or otherwise affecting the rights, privileges, or interests
of the exhibitors, or of the public, shall be fixed and established by the
United States Centennial Commission; and no grant conferring rights or
privileges of any description connected with said grounds or buildings,
or relating to said exhibition or celebration, shall be made without the
consent of the United States Centennial Commission, and said
commission shall have power to control, change, or revoke all such
grants, and shall appoint all judges and examiners and award all
premiums. The tenth section of the act provides that it shall be the duty
of the United States Centennial Commission to supervise the closing up
of the affairs of said corporation, to audit its accounts, and submit in a
report to the President of the United States the financial results of the
centennial exhibition.
It is apparent from this statement, which is but partial, that the duties
and functions of the commission were various, delicate, and important;
that they could be successfully performed only by men of large
experience and knowledge of affairs; and that they were not merely
subordinate and provisional, but in the highest degree authoritative,
discretionary, and final in their character. We think that persons
performing such duties and exercising such functions, in pursuance of
statutory direction and authority, are not to be regarded as mere
employees, agents, or committee men, but that they are, properly
speaking, officers, and that the places which they hold are offices. It
appears, moreover, that they were originally regarded as officers by
Congress; for the act under which they were appointed declares,
section 7, that no compensation for services shall be paid to the
commissioners or other officers, provided for in this act, from the
treasury of the United States. The only other officers provided for were
23
the alternates appointed to serve as commissioners when the
commissioners were unable to attend.
Having arrived at the conclusion that the NCC performs executive
functions and is, therefore, a public office, we need no longer delve at
length on the issue of whether Expocorp is a private or a public
corporation. Even assuming that Expocorp is a private corporation,
petitioners position as Chief Executive Officer (CEO) of Expocorp arose
from his Chairmanship of the NCC. Consequently, his acts or omissions
as CEO of Expocorp must be viewed in the light of his powers and
functions as NCC Chair.[27]
Finally, it is contended that since petitioner supposedly did not receive
any compensation for his services as NCC or Expocorp Chair, he is not a
public officer as defined in Republic Act No. 3019 (The Anti-Graft and
Corrupt Practices Act) and is, therefore, beyond the jurisdiction of the
Ombudsman.
Officer as distinguished from clerk or employee, refers to a person
whose duties not being of a clerical or manual nature, involves the
exercise of discretion in the performance of the functions of the
government. When used with reference to a person having authority to
do a particular act or perform a particular person in the exercise of
governmental power, officer includes any government employee,
agent or body having authority to do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The
Code of Conduct and Ethical Standards for Public Officials and
Employees), one may be considered a public official whether or not one
receives compensation, thus:
Public Officials include elective and appointive officials and employees,
permanent or temporary, whether in the career or non-career service
including military and police personnel, whether or not they receive
compensation, regardless of amount.

Respondent seeks to charge petitioner with violation of Section 3 (e) of
said law, which reads:
SEC. 3. Corrupt practices of public officers. In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the Government,
or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the
grant of licenses or permits or other concessions.
A public officer, under R.A. No. 3019, is defined by Section 2 of said law
as follows:
Which of these definitions should apply, if at all?
Assuming that the definition of public officer in R.A. No. 3019 is
exclusive, the term compensation, which is not defined by said law, has
many meanings.
Under particular circumstances, compensation has been held to include
allowance for personal expenses, commissions, expenses, fees, an
honorarium, mileage or traveling expenses, payments for services,
restitution or a balancing of accounts, salary, and wages.[30]
How then is compensation, as the term is used in Section 2 (b) of R.A.
No. 3019, to be interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting
that petitioner did not receive any salary, the records do not reveal if
he received any allowance, fee, honorarium, or some other form of
compensation. Notably, under the by-laws of Expocorp, the CEO is
entitled to per diems and compensation.[31] Would such fact bear any
significance?

SEC. 2. Definition of terms. As used in this Act, the term
xxx
(b) Public officer includes elective and appointive officials and
employees, permanent or temporary, whether in the classified or
unclassified or exemption service receiving compensation, even
nominal, from the government as defined in the preceding paragraph.
[Emphasis supplied.]
Obviously, this proceeding is not the proper forum to settle these issues
lest we preempt the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction
issued in the Courts Resolution dated September 24, 2001 is hereby
LIFTED.
SO ORDERED.

It is clear from Section 2 (b), above, that the definition of a public officer
is expressly limited to the application of R.A. No. 3019. Said definition
does not apply for purposes of determining the Ombudsmans
jurisdiction, as defined by the Constitution and the Ombudsman Act of
1989.

Moreover, the question of whether petitioner is a public officer under

the Anti-Graft and Corrupt Practices Act involves the appreciation of
evidence and interpretation of law, matters that are best resolved at
trial.

To illustrate, the use of the term includes in Section 2 (b) indicates that
the definition is not restrictive.[28] The Anti-Graft and Corrupt Practices
Act is just one of several laws that define public officers. Article 203 of
the Revised Penal Code, for example, provides that a public officer is:

x x x any person who, by direct provision of law, popular election or

appointment by competent authority, takes part in the performance of
public functions in the Government of Philippines, or performs in said
Government or in any of its branches public duties as an employee,
agent or subordinate official, of any rank or class.

Section 2 (14) of the Introductory Provisions of the Administrative Code

of 1987,[29] on the other hand, states:

24