1
B. Procedure for the passage of bills
Tolentino v. Secretary of Not sure if nadiscuss na to ni
Finance, supra Atyy. Muyot sa atin. Search niyo
na lang. :)
Philconsa v. Enriquez,
supra
[G.R. No. 87636. November 19, 1990.]
NEPTALI A. GONZALES, ERNESTO M. MACEDA, ALBERTO G.
ROMULO, HEHERSON T. ALVAREZ, EDGARDO J. ANGARA,
AGAPITO A. AQUINO, TEOFISTO T. GUINGONA, JR., ERNESTO
F. HERRERA, JOSE D. LINA, JR., JOHN OSMEÑA, VICENTE T.
PATERNO, RENE A. SAGUISAG, LETICIA RAMOS-SHAHANI,
MAMINTAL ABDUL J. TAMANO, WIGBERTO E. TAÑADA,
JOVITO R. SALONGA, ORLANDO S. MERCADO, JUAN PONCE
ENRILE, JOSEPH ESTRADA, SOTERO LAUREL, AQUILINO
PIMENTEL, JR., SANTANINA RASUL, VICTOR ZIGA, Petitioners,
v. HON. CATALINO MACARAIG, JR., HON. VICENTE JAYME,
HON. CARLOS DOMINGUEZ, HON. FULGENCIO FACTORAN,
HON. FIORELLO ESTUAR, HON. LOURDES QUISUMBING, HON.
RAUL MANGLAPUS, HON. ALFREDO BENGSON, HON. JOSE
CONCEPCION, HON. LUIS SANTOS, HON. MITA PARDO DE
TAVERA, HON. RAINERIO REYES, HON. GUILLERMO
CARAGUE, HON. ROSALINA CAJUCOM and HON. EUFEMIO C.
DOMINGO, Respondents.
Gonzales, Batiller, Bilog & Associates for petitioners.
DECISION
MELENCIO-HERRERA, J.:
This constitutional controversy between the legislative and executive
departments of government stemmed from Senate Resolution No. 381,
adopted on 2 February 1989,
"Authorizing and Directing the Committee on Finance to Bring in the
Name of the Senate of the Philippines the Proper Suit with the Supreme
Court of the Philippines contesting the Constitutionality of the Veto by the
President of Special and General Provisions, particularly Section 55, of the
General Appropriation Bill of 1989 (H.B. No. 19186) and For Other
Purposes."cralaw virtua1aw library
Petitioners are thus before us as members and ex-officio members of the
Committee on Finance of the Senate and as "substantial taxpayers whose
vital interests may be affected by this case."cralaw virtua1aw library
Respondents are members of the Cabinet tasked with the implementation of
the General Appropriations Act of 1989 and 1990, some of them
incumbents, while others have already been replaced, and include the
National Treasurer and the Commission on Audit Chairman, all of whom
are being sued in their official capacities.chanrobles.com:cralaw:red
The Background Facts
On 16 December 1988, Congress passed House Bill No. 19186, or the
General Appropriations Bill for the Fiscal Year 1989. As passed, it
eliminated or decreased certain items included in the proposed budget
submitted by the President.
Pursuant to the constitutional provision on the passage of bills, Congress
presented the said Bill to the President for consideration and approval.
On 29 December 1988, the President signed the Bill into law, and declared
the same to have become Rep. Act No. 6688. In the process, seven (7)
Special Provisions and Section 55, a "General Provision," were vetoed.
On 2 February 1989, the Senate, in the same Resolution No. 381 mentioned
at the outset, further expressed:jgc:chanrobles.com.ph
"WHEREAS, Be it Resolved, as it is hereby Resolved, That the Senate
express its sense that the veto by the President of Section 55 of the
GENERAL PROVISIONS of the General Appropriation Bill of 1989 (H.B.
No. 19186) is unconstitutional and, therefore, void and without any force
and effect; hence, the aforesaid Section 55 remains;
"x x x"
Thus it is that, on 11 April 1989, this Petition for Prohibition/ Mandamus
was filed, with a prayer for the issuance of a Writ of Preliminary Injunction
and Restraining Order, assailing mainly the constitutionality or legality of
the Presidential veto of Section 55, and seeking to enjoin respondents from
implementing Rep. Act No. 6688. No Restraining Order was issued by the
Court.
The Comment, submitted by the Solicitor General on 25 August 1989 (after
several extensions granted), was considered as the Answer to the Petition
and, on 7 September 1989, the Court Resolved to give due course to the
Petition and to require the parties to submit their respective Memoranda.
Petitioners filed their Memorandum on 12 December 1989. But, on 19
January 1990, they filed a Motion for Leave to File and to Admit
Supplemental Petition, which was granted, basically raising the same issue
as in the original Petition, this time questioning the President’s veto of
certain provisions, particularly Section 16, of House Bill 26934, or the
General Appropriations Bill for Fiscal Year 1990, which the President
declared to have become Rep. Act No. 6831.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
The Solicitor General’s Comment on the Supplemental Petition, on behalf
of respondent public officials, was submitted on 24 April 1990. On 15 May
1990, the Court required the parties to file simultaneously their
consolidated memoranda, to include the Supplemental Petition, within an
inextendible period of thirty (30) days from notice. However, because the
original Resolution of 15 May 1990 merely required the filing of a
memorandum on the Supplemental Petition, a revised Resolution requiring
consolidated memoranda, within thirty (30) days from notice, was released
on 28 June 1990.
The Consolidated Memoranda were respectively filed on 26 June 1990 by
petitioners, and on 1 August 1990 by respondents. On 14 August 1990,
both Memoranda were Noted and the case was deemed submitted for
deliberation.
On 11 September 1990, the Court heard the case on oral argument and
required the submittal of supplemental Memoranda, the last of which was
filed on 26 September 1990.
The Vetoed Provisions and Reasons Therefor
Section 55 of the Appropriations Act of 1989 (Section 55 [FY ‘89]
hereinafter), which was vetoed by the President,
reads:jgc:chanrobles.com.ph

"SEC. 55. Prohibition Against the Restoration or Increase of
Recommended Appropriations Disapproved and/or Reduced by Congress:
No item of appropriation recommended by the President in the Budget
submitted to Congress pursuant to Article VII, Section 22 of the
Constitution which has been disapproved or reduced in this Act shall be
restored or increased by the use of appropriations authorized for other
purposes by augmentation. An item of appropriation for any purpose
recommended by the President in the Budget shall be deemed to have been
disapproved by Congress if no corresponding appropriation for the specific
purpose is provided in this Act."cralaw virtua1aw library
We quote below the reason for the Presidential veto:jgc:chanrobles.com.ph
"The provision violates Section 25 (5) of Article VI of the Constitution. If
allowed, this Section would nullify not only the constitutional and statutory
authority of the President, but also that of the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and Heads of Constitutional Commissions, to augment any item in
the general appropriations law for their respective offices from savings in
other items of their respective appropriations. A careful review of the
legislative action on the budget as submitted shows that in almost all cases,
the budgets of agencies as recommended by the President, as well as those
of the Senate, the House of Representatives, and the Constitutional
Commissions, have been reduced. An unwanted consequence of this
provision is the inability of the President, the President of the Senate,
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions to augment any item
of appropriation of their respective offices from savings in other items of
their respective appropriations even in cases of calamity or in the event of
urgent need to accelerate the implementation of essential public services
and infrastructure projects.
"Furthermore, this provision is inconsistent with Section 12 and other
similar provisions of this General Appropriations Act."cralaw virtua1aw
library
A substantially similar provision as the vetoed Section 55 appears in the
Appropriations Act of 1990, this time crafted as
follows:jgc:chanrobles.com.ph
"B. GENERAL PROVISIONS
"Sec. 16. Use of Savings. — The President of the Philippines, the President
of the Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, the Heads of Constitutional Commissions
under Article IX of the Constitution and the Ombudsman are hereby
authorized to augment any item in this Act for their respective offices from
savings in other items of their appropriations: PROVIDED, THAT NO
ITEM OF APPROPRIATION RECOMMENDED BY THE PRESIDENT
IN THE BUDGET SUBMITTED TO CONGRESS PURSUANT TO
ARTICLE VII, SECTION 22 OF THE CONSTITUTION WHICH HAS
BEEN DISAPPROVED OR REDUCED BY CONGRESS SHALL BE
RESTORED OR INCREASED BY THE USE OF APPROPRIATIONS
AUTHORIZED FOR OTHER PURPOSES IN THIS ACT BY
AUGMENTATION. AN ITEM OF APPROPRIATION FOR ANY
PURPOSE RECOMMENDED BY THE PRESIDENT IN THE BUDGET
SHALL BE DEEMED TO HAVE BEEN DISAPPROVED BY
CONGRESS IF NO CORRESPONDING APPROPRIATION FOR THE
SPECIFIC PURPOSE IS PROVIDED IN THIS ACT."cralaw virtua1aw
library
It should be noted that in the 1989 Appropriations Act, the "Use of
Savings" appears in Section 12, separate and apart from Section 55;
whereas in the 1990 Appropriations Act, the "Use of Savings" and the
vetoed provision have been commingled in Section 16 only, with the
2
vetoed provision made to appear as a condition or restriction.
Essentially the same reason was given for the veto of Section 16 (FY ‘90),
thus:jgc:chanrobles.com.ph
"I am vetoing this provision for the reason that it violates Section 25 (5) of
Article VI of the Constitution in relation to Sections 44 and 45 of P.D. No.
1177 as amended by R.A. No. 6670 which authorizes the President to use
savings to augment any item of appropriations in the Executive Branch of
the Government.
"Parenthetically, there is a case pending in the Supreme Court relative to
the validity of the President’s veto on Section 55 of the General Provisions
of Republic Act No. 6688 upon which the amendment on this Section was
based. Inclusion, therefore, of the proviso in the last sentence of this section
might prejudice the Executive Branch’s position in the case.
"Moreover, if allowed, this Section would nullify not only the
constitutional and statutory authority of the President, but also that of the
officials enumerated under Section 25 (5) of Article VI of the Constitution,
to augment any item in the general appropriations law for their respective
appropriations.
"An unwanted consequence of this provision would be the inability of the
President, the President of the Senate, Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and heads of
Constitutional Commissions to augment any item of appropriation of their
respective offices from savings in other items of their respective
appropriations even in cases of national emergency or in the event of
urgent need to accelerate the implementation of essential public services
and infrastructure projects."cralaw virtua1aw library
The fundamental issue raised is whether or not the veto by the President of
Section 55 of the 1989 Appropriations Bill (Section 55 FY ‘89), and
subsequently of its counterpart Section 16 of the 1990 Appropriations Bill
(Section 16 FY ‘90), is unconstitutional and without
effect.chanrobles.com:cralaw:red
The Contending Views
In essence, petitioners’ cause is anchored on the following grounds: (1) the
President’s line-veto power as regards appropriation bills is limited to
item/s and does not cover provision/s; therefore, she exceeded her authority
when she vetoed Section 55 (FY ‘89) and Section 16 (FY ‘90) which are
provisions; (2) when the President objects to a provision of an
appropriation bill, she cannot exercise the item-veto power but should veto
the entire bill; (3) the item-veto power does not carry with it the power to
strike out conditions or restrictions for that would be legislation, in
violation of the doctrine of separation of powers; and (4) the power of
augmentation in Article VI, Section 25 [5] of the 1987 Constitution, has to
be provided for by law and, therefore, Congress is also vested with the
prerogative to impose restrictions on the exercise of that power.
The Solicitor General, as counsel for public respondents, counters that the
issue at bar is a political question beyond the power of this Court to
determine; that petitioners had a political remedy, which was to override
the veto; that Section 55 is a "rider" because it is extraneous to the
Appropriations Act and, therefore, merits the President’s veto; that the
power of the President to augment items in the appropriations for the
executive branches had already been provided for in the Budget Law,
specifically Sections 44 and 45 of Pres. Decree No. 1177, as amended by
Rep. Act No. 6670 (4 August 1988); and that the President is empowered
by the Constitution to veto provisions or other "distinct and severable
parts" of an Appropriations Bill.
Judicial Determination

With the Senate maintaining that the President’s veto is unconstitutional,
and that charge being controverted, there is an actual case or justiciable
controversy between the Upper House of Congress and the executive
department that may be taken cognizance of by this Court.
"Indeed, where the legislature or the executive branch is acting within the
limits of its authority, the judiciary cannot and ought not to interfere with
the former. But where the legislature or the executive acts beyond the scope
of its constitutional powers, it becomes the duty of the judiciary to declare
what the other branches of the government had assumed to do as void. This
is the essence of judicial power conferred by the Constitution ‘in one
Supreme Court and in such lower courts as may be established by law’ [Art.
VIII, Section 1 of the 1935 Constitution; Art. X, Section 1 of the 1973
Constitution and which was adopted as part of the Freedom Constitution,
and Art. VIII, Section 1 of the 1987 Constitution] and which power this
Court has exercised in many instances" (Demetria v. Alba, G.R. No. 71977,
27 February 1987, 148 SCRA 209).
We take note as well of what petitioners stress as the "imperative need for a
definitive ruling by this Court as to the exact parameters of the exercise of
the item-veto power of the President as regards appropriation bills . . . in
order to obviate the recurrence of a similar problem whenever a general
appropriations bill is passed by Congress." Indeed, the contextual
reiteration of Section 55 (FY 89) in Section 16 (FY ‘90) and again, its veto
by the President, underscore the need for judicial arbitrament. The Court
does not thereby assert its superiority over or exhibit lack of respect due the
other co-ordinate departments but discharges a solemn and sacred duty to
determine essentially the scope of intersecting powers in regard which the
Executive and the Senate are in dispute.chanrobles.com : virtual law library
Petitioners have also brought this suit as taxpayers. As ruled in Sanidad v.
COMELEC (No. L-44640, 12 October 1976, 73 SCRA 333), this Court
enjoys the open discretion to entertain taxpayers suits or not. In Tolentino v.
COMELEC (No. L-34150, 16 October 1961, 41 SCRA 702), it was also
held that a member of the Senate has the requisite personality to bring a
suit where a constitutional issue is raised.cralawnad
The political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means
does away with the applicability of the principle in appropriate cases.
"SECTION 1. The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government."cralaw virtua1aw library
Nor is this the first time that the constitutionality of a Presidential veto is
raised to the Court. The two oft-cited cases are Bengson v. Secretary of
Justice (62 Phil. 912 [1936]), penned by Justice George A. Malcolm, which
upheld the veto questioned before it, but which decision was reversed by
the U.S. Supreme Court in the same entitled case in 292 U.S. 410, infra,
essentially on the ground that an Appropriations Bill was not involved. The
second case is Bolinao Electronics v. Valencia (G.R. No. L-20740, 30 June
1964, 11 SCRA 486), infra, which rejected the President’s veto of a
condition or restriction in an Appropriations Bill.
The Extent of the President’s Item-veto Power
The focal issue for resolution is whether or not the President exceeded the
3
item-veto power accorded by the Constitution. Or differently put, has the
President the power to veto "provisions" of an Appropriations Bill?
Petitioners contend that Section 55 (FY ‘89) and Section 16 (FY ‘90) are
provisions and not items and are, therefore, outside the scope of the
item-veto power of the President.chanrobles lawlibrary : rednad
The veto power of the President is expressed in Article VI, Section 27 of
the 1987 Constitution reading, in full, as follows:jgc:chanrobles.com.ph
"Sec. 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.
"(2) The President shall have the power to veto any particular item or items
in an appropriation, revenue, or tariff bill, but the veto shall not affect the
item or items to which he does not object."cralaw virtua1aw library
Paragraph (1) refers to the general veto power of the President and if
exercised would result in the veto of the entire bill, as a general rule.
Paragraph (2) is what is referred to as the item-veto power or the line-veto
power. It allows the exercise of the veto over a particular item or items in
an appropriation, revenue, or tariff bill. As specified, the President may not
veto less than all of an item of an Appropriations Bill. In other words, the
power given the executive to disapprove any item or items in an
Appropriations Bill does not grant the authority to veto a part of an item
and to approve the remaining portion of the same item.
Originally, item veto exclusively referred to veto of items of appropriation
bills and first came into being in the former Organic Act, the Act of
Congress of 29 August 1916. This was followed by the 1935 Constitution,
which contained a similar provision in its Section 11(2), Article VI, except
that the veto power was made more expansive by the inclusion of this
sentence:jgc:chanrobles.com.ph
". . . When a provision of an appropriation bill affects one or more items of
the same, the President can not veto the provision without at the same time
vetoing the particular item or items to which it relates . . ."cralaw virtua1aw
library
The 1935 Constitution further broadened the President’s veto power to
include the veto of item or items of revenue and tariff bills.
With the advent of the 1973 Constitution, the section took a more simple
and compact form, thus:jgc:chanrobles.com.ph
"Section 20 (2). The Prime Minister shall have the power to veto any
particular item or items in an appropriation, revenue, or tariff bill, but the
veto shall not affect the item or items to which he does not object."cralaw
virtua1aw library
It is to be noted that the counterpart provision in the 1987 Constitution
(Article VI, Section 27 [2], supra), is a verbatim reproduction except for the
public official concerned. In other words, also eliminated has been any
reference to the veto of a provision. The vital question is: should this

exclusion be interpreted to mean as a disallowance of the power to veto a
provision, as petitioners urge?
The terms item and provision in budgetary legislation and practice are
concededly different. An item in a bill refers to the particulars, the details,
the distinct and severable parts . . . of the bill (Bengzon, supra, at 916). It is
an indivisible sum of money dedicated to a stated purpose (Commonwealth
v. Dodson, 11 S.E., 2d 120, 124, 125, etc., 176 Va. 281). The United States
Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S.
410, 414, 57 S.Ct 252, 81 L. Ed., 312) declared "that an ‘item’ of an
appropriation bill obviously means an item which in itself is a specific
appropriation of money, not some general provision of law, which happens
to be put into an appropriation bill."cralaw virtua1aw library
It is our considered opinion that, notwithstanding the elimination in Article
VI, Section 27 (2) of the 1987 Constitution of any reference to the veto of a
provision, the extent of the President’s veto power as previously defined by
the 1935 Constitution has not changed. This is because the eliminated
proviso merely pronounces the basic principle that a distinct and severable
part of a bill may be the subject of a separate veto (Bengzon v. Secretary of
Justice, 62 Phil., 912, 916 (1926); 2 BERNAS, Joaquin, S.J., The
Constitution of the Republic of the Philippines, 1st ed., 154-155, [1988]).
The restrictive interpretation urged by petitioners that the President may
not veto a provision without vetoing the entire bill not only disregards the
basic principle that a distinct and severable part of a bill may be the subject
of a separate veto but also overlooks the Constitutional mandate that any
provision in the general appropriations bill shall relate specifically to some
particular appropriation therein and that any such provision shall be limited
in its operation to the appropriation to which it relates (1987 Constitution,
Article VI, Section 25 [2]). In other words, in the true sense of the term, a
provision in an Appropriations Bill is limited in its operation to some
particular appropriation to which it relates, and does not relate to the entire
bill.chanrobles law library
Petitioners’ further submission that, since the exercise of the veto power by
the President partakes of the nature of legislative powers it should be
strictly construed, is negative by the following dictum in Bengzon, supra,
reading:jgc:chanrobles.com.ph
"The Constitution is a limitation upon the power of the legislative
department of the government, but in this respect it is a grant of power to
the executive department. The Legislature has the affirmative power to
enact laws; the Chief Executive has the negative power by the
constitutional exercise of which he may defeat the will of the Legislature. It
follows that the Chief Executive must find his authority in the Constitution.
But in exercising that authority he may not be confined to rules of strict
construction or hampered by the unwise interference of the judiciary. The
courts will indulge every intendment in favor of the constitutionality of a
veto the same as they will presume the constitutionality of an act as
originally passed by the Legislature" (Commonwealth v. Barnett [1901],
199 Pa., 161; 55 L.R.A., 882; People v. Board of Councilmen [1892], 20
N.Y.S., 52; Fulmore v. Lane [1911], 104 Tex., 499; Texas Co. v. State
[1927], 53 A.L.R., 258 [at 917]).
Inappropriateness of the so-called "Provisions"
But even assuming arguendo that provisions are beyond the executive
power to veto, we are of the opinion that Section 55 (FY ‘89) and Section
16 (FY ‘90) are not provisions in the budgetary sense of the term. Article
VI, Section 25 (2) of the 1987 Constitution provides:jgc:chanrobles.com.ph
"Sec. 25 (2) No provision or enactment shall be embraced in the general
appropriations bill unless it relates specifically to some particular
appropriation therein. Any such provision or enactment shall be limited in
its operation to the appropriation to which it relates."cralaw virtua1aw
4
library
Explicit is the requirement that a provision in the Appropriations Bill
should relate specifically to some" particular appropriation" therein. The
challenged "provisions" fall short of this requirement. Firstly, the vetoed
"provisions" do not relate to any particular or distinctive appropriation.
They apply generally to all items disapproved or reduced by Congress in
the Appropriations Bill. Secondly, the disapproved or reduced items are
nowhere to be found on the face of the Bill. To discover them, resort will
have to be made to the original recommendations made by the President
and to the source indicated by petitioners themselves, i.e., the "Legislative
Budget Research and Monitoring Office" (Annex B-1 and B-2, Petition).
Thirdly, the vetoed Sections are more of an expression of Congressional
policy in respect of augmentation from savings rather than a budgetary
appropriation. Consequently, Section 55 (FY ‘89) and Section 16 (FY ‘90)
although labelled as "provisions," are actually inappropriate provisions that
should be treated as items for the purpose of the President’s veto power.
(Henry v. Edwards [1977] 346 S Rep. 2d, 157-158)
"Just as the President may not use his item-veto to usurp constitutional
powers conferred on the legislature, neither can the legislature deprive the
Governor of the constitutional powers conferred on him as chief executive
officer of the state by including in a general appropriation bill matters more
properly enacted in separate legislation. The Governor’s constitutional
power to veto bills of general legislation . . . cannot be abridged by the
careful placement of such measures in a general appropriation bill, thereby
forcing the Governor to choose between approving unacceptable
substantive legislation or vetoing ‘items’ of expenditure essential to the
operation of government. The legislature cannot by location of a bill give it
immunity from executive veto. Nor can it circumvent the Governor’s veto
power over substantive legislation by artfully drafting general law
measures so that they appear to be true conditions or limitations on an item
of appropriation. Otherwise, the legislature would be permitted to impair
the constitutional responsibilities and functions of a co-equal branch of
government in contravention of the separation of powers doctrine . . . We
are no more willing to allow the legislature to use its appropriation power
to infringe on the Governor’s constitutional right to veto matters of
substantive legislation than we are to allow the Governor to encroach on
the constitutional powers of the legislature. In order to avoid this result, we
hold that, when the legislature inserts inappropriate provisions in a general
appropriation bill, such provisions must be treated as ‘items’ for purposes
of the Governor’s item veto power over general appropriation bills.
x x x
". . . Legislative control cannot be exercised in such a manner as to
encumber the general appropriation bill with veto-proof ‘logrolling
measure,’ special interest provisions which could not succeed if separately
enacted, or ‘riders,’ substantive pieces of legislation incorporated in a bill
to insure passage without veto. . . ." (Emphasis supplied)
Inappropriateness of the so-called "Conditions/Restrictions"
Petitioners maintain, however, that Congress is free to impose conditions in
an Appropriations Bill and where conditions are attached, the veto power
does not carry with it the power to strike them out, citing Commonwealth v.
Dodson (11 SE, 2d 130, supra) and Bolinao Electronics Corporation v.
Valencia (No. L-20740, June 30, 1964, 11 SCRA 486). In other words,
their theory is that Section 55 (FY ‘89) and Section 16 (FY ‘90) are such
conditions/restrictions and thus beyond the veto power.chanrobles virtual
lawlibrary
There can be no denying that inherent in the power of appropriation is the
power to specify how money shall be spent; and that in addition to distinct

"items" of appropriation, the Legislature may include in Appropriation
Bills qualifications, conditions, limitations or restrictions on expenditure of
funds. Settled also is the rule that the Executive is not allowed to veto a
condition or proviso of an appropriation while allowing the appropriation
itself to stand (Fairfield v. Foster, supra, at 320). That was also the ruling in
Bolinao, supra, which held that the veto of a condition in an Appropriations
Bill which did not include a veto of the items to which the condition related
was deemed invalid and without effect whatsoever.
However, for the rule to apply, restrictions should be such in the real sense
of the term, not some matters which are more properly dealt with in a
separate legislation (Henry v. Edwards, La, 346, So 2d 153). Restrictions or
conditions in an Appropriations Bill must exhibit a connection with money
items in a budgetary sense in the schedule of expenditures. Again, the test
is appropriateness.
"It is not enough that a provision be related to the institution or agency to
which funds are appropriated. Conditions and limitations properly included
in an appropriation bill must exhibit such a connexity with money items of
appropriation that they logically belong in a schedule of expenditures . . .
the ultimate test is one of appropriateness" (Henry v. Edwards, supra, at
158).
Tested by these criteria, Section 55 (FY ‘89) and Section 16 (FY ‘90) must
also be held to be inappropriate "conditions." While they, particularly,
Section 16 (FY ‘90), have been "artfully drafted" to appear as true
conditions or limitations, they are actually general law measures more
appropriate for substantive and, therefore, separate legislation.
Further, neither of them shows the necessary connection with a schedule of
expenditures. The reason, as explained earlier, is that items reduced or
disapproved by Congress would not appear on the face of the enrolled bill
or Appropriations Act itself. They can only be detected when compared
with the original budgetary submittals of the President. In fact, Sections 55
(FY ‘89) and 16 (FY ‘90) themselves provide that an item "shall be deemed
to have been disapproved by Congress if no corresponding appropriation
for the specific purpose is provided in this Act."cralaw virtua1aw library
Considering that the vetoed provisions are not, in the budgetary sense of
the term, conditions or restrictions, the case of Bolinao Electronics
Corporation v. Valencia (supra), invoked by petitioners, becomes
inapplicable. In that case, a public works bill contained an item
appropriating a certain sum for assistance to television stations, subject to
the condition that the amount would not be available to places where there
were commercial television stations. Then President Macapagal approved
the appropriation but vetoed the condition. When challenged before this
Court, it was held that the veto was ineffectual and that the approval of the
item carried with it the approval of the condition attached to it. In contrast
with the case at bar, there is no condition, in the budgetary sense of the
term, attached to an appropriation or item in the appropriation bill which
was struck out. For obviously, Sections 55 (FY ‘89) and 16 (FY ‘90)
partake more of a curtailment on the power to augment from savings; in
other words, "a general provision of law, which happens to be put in an
appropriation bill" (Bengzon v. Secretary of Justice, supra).
The Power of Augmentation and The Validity of the Veto
The President promptly vetoed Section 55 (FY ‘89) and Section 16 (FY ‘90)
because they nullify the authority of the Chief Executive and heads of
different branches of government to augment any item in the General
Appropriations Law for their respective offices from savings in other items
of their respective appropriations, as guaranteed by Article VI, Section 25
(5) of the Constitution. Said provision reads:jgc:chanrobles.com.ph
"Sec. 25. (5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the President of the Senate, the
5
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by law, be
authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective
appropriations" (Emphasis ours).
Noteworthy is the fact that the power to augment from savings lies dormant
until authorized by law.
This Court upheld the validity of the power of augmentation from savings
in Demetria v. Alba, which ruled:jgc:chanrobles.com.ph
". . . to afford the heads of the different branches of the government and
those of the constitutional commissions considerable flexibility in the use
of public funds and resources, the constitution allowed the enactment of a
law authorizing the transfer of funds for the purpose of augmenting an item
from savings in another item in the appropriation of the government branch
or constitutional body concerned. The leeway granted was thus limited.
The purpose and conditions for which funds may be transferred were
specified, i.e., transfer may be allowed for the purpose of augmenting an
item and such transfer may be made only if there are savings from another
item in the appropriation of the government branch or constitutional body"
(G.R. No. 71977, 27 February 1987, 148 SCRA 214).
The 1973 Constitution contained an identical authority to augment from
savings in its Article VIII, Section 16 (5), except for mention of the Prime
Minister among the officials vested with that power. 1
In 1977, the statutory authority of the President to augment any
appropriation of the executive department in the General Appropriations
Act from savings was specifically provided for in Section 44 of Presidential
Decree No. 1177, as amended (RA 6670, 4 August 1988), otherwise known
as the "Budget Reform Decree of 1977." It reads:jgc:chanrobles.com.ph
"Sec. 44. . . .
"The President shall, likewise, have the authority to augment any
appropriation of the Executive Department in the General Appropriations
Act, from savings in the appropriations of another department, bureau,
office or agency within the Executive Branch, pursuant to the provisions of
Art. VIII, Sec. 16 (5) of the Constitution (now Sec. 25 (5), Art. VI)"
(Emphasis ours), (N.B.: The first paragraph declared void in Demetria v.
Alba, supra, has been deleted).
Similarly, the use by the President of savings to cover deficits is
specifically authorized in the same Decree. Thus:jgc:chanrobles.com.ph
"Sec. 45. Authority to Use Savings in Appropriations to Cover Deficits.
Except as otherwise provided in the General Appropriations Act, any
savings in the regular appropriations authorized in the General
Appropriations Act for programs and projects of any department, office or
agency, may, with the approval of the President be used to cover a deficit
in any other item of the regular appropriations: ". . .
A more recent grant is found in Section 12 of the General Appropriations
Act of 1989, the text of which is repeated in the first paragraph of Section
16 (FY ‘90). Section 12 reads:chanrobles virtual lawlibrary
"Sec. 12. Use of Savings. — The President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, the heads of the Constitutional Commissions, and the Ombudsman
are hereby authorized to augment any item in this Act for their respective
offices from savings in other items of their respective
appropriations."cralaw virtua1aw library
There should be no question, therefore, that statutory authority has, in fact,

been granted. And once given, the heads of the different branches of the
Government and those of the Constitutional Commissions are afforded
considerable flexibility in the use of public funds and resources (Demetria
v. Alba, supra). The doctrine of separation of powers is in no way
endangered because the transfer is made within a department (or branch of
government) and not from one department (branch) to another (CRUZ,
Isagani A., Philippine Political Law [1989] p. 155).
When Sections 55 (FY ‘89) and 16 (FY ‘90), therefore, prohibit the
restoration or increase by augmentation of appropriations disapproved or
reduced by Congress, they impair the constitutional and statutory authority
of the President and other key officials to augment any item or any
appropriation from savings in the interest of expediency and efficiency.
The exercise of such authority in respect of disapproved or reduced items
by no means vests in the Executive the power to rewrite the entire budget,
as petitioners contend, the leeway granted being delimited to transfers
within the department or branch concerned, the sourcing to come only from
savings.
More importantly, it strikes us, too, that for such a special power as that of
augmentation from savings, the same is merely incorporated in the General
Appropriations Bill. An Appropriations Bill is "one the primary and
specific aim of which is to make appropriation of money from the public
treasury" (Bengzon v. Secretary of Justice, 292 U.S., 410, 57 S.Ct. 252). It
is a legislative authorization of receipts and expenditures. The power of
augmentation from savings, on the other hand, can by no means be
considered a specific appropriation of money. It is a non-appropriation item
inserted in an appropriation measure.chanrobles law library : red
The same thing must be said of Section 55 (FY ‘89), taken in conjunction
with Section 12, and Section 16 (FY ‘90), which prohibit the restoration or
increase by augmentation of appropriations disapproved and/or reduced by
Congress. They are non-appropriation items, an appropriation being a
setting apart by law of a certain sum from the public revenue for a specific
purpose (Bengzon v. Secretary of Justice, 62 Phil. 912, 916 [1936]). It
bears repeating that they are more of a substantive expression of a
legislative objective to restrict the power of augmentation granted to the
President and other key officials. They are actually matters of general law
and more properly the subject of a separate legislation that will embody,
define and delimit the scope of the special power of augmentation from
savings instead of being inappropriately incorporated annually in the
Appropriation Act. To sanction this practice would be to give the
Legislature the freedom to grant or withhold the power from the Executive
and other officials, and thus put in yearly jeopardy the exercise of that
power.
If, indeed, by the later enactments of Section 55 (FY ‘89) and Section 16
(FY ‘90), Congress, as petitioners argue, intended to amend or repeal Pres.
Decree No. 1177, with all the more reason should it have so provided in a
separate enactment, it being basic that implied repeals are not favored. For
the same reason, we cannot subscribe to petitioners’ allegation that Pres.
Decree No. 1177 has been revoked by the 1987 Constitution. The 1987
Constitution itself provides for the continuance of laws, decrees, executive
orders, proclamations, letters of instructions, and other executive issuances
not inconsistent with the Constitution until amended, repealed, or revoked
(1987 Constitution, Article XVIII, Section 3).
If, indeed, the legislature believed that the exercise of the veto powers by
the executive were unconstitutional, the remedy laid down by the
Constitution is crystal clear. A Presidential veto may be overriden by the
votes of two-thirds of members of Congress (1987 Constitution, Article VI,
Section 27[1], supra). But Congress made no attempt to override the
Presidential veto. Petitioners’ argument that the veto is ineffectual so that
there is "nothing to override" (citing Bolinao) has lost force and effect with
the executive veto having been herein upheld.
6
As we see it, there need be no future conflict if the legislative and executive
branches of government adhere to the spirit of the Constitution, each
exercising its respective powers with due deference to the constitutional
responsibilities and functions of the other. Thereby, the delicate
equilibrium of governmental powers remains on even keel.
WHEREFORE, the constitutionality of the assailed Presidential veto is
UPHELD and this Petition is hereby DISMISSED.
No costs.
SO ORDERED.
Narvasa, Gancayco, Bidin, Sarmiento, Griño-Aquino, Medialdea and
Regalado, JJ., concur.
Fernan, C.J., took no part.
Feliciano, J., is on leave.
G.R. No. 103524 April 15, 1992
CESAR BENGZON, QUERUBE MAKALINTAL, LINO M. PATAJO,
JOSE LEUTERIO, ET AL., petitioners,
vs.
HON. FRANKLIN N. DRILON, in his capacity as Executive Secretary,
HON. GUILLERMO CARAGUE, in his capacity as Secretary of
Department of Budget and Management, and HON. ROSALINA
CAJUCOM, in her capacity as National Treasurer, respondents.
A.M. No. 91-8-225-CA April 15, 1992
REQUEST OF RETIRED JUSTICES MANUEL P. BARCELONA,
JUAN P. ENRIQUEZ, JUAN O. REYES, JR. and GUARDSON R.
LOOD FOR READJUSTMENT OF THEIR MONTHLY PENSION.
GUTIERREZ, JR., J.:
The issue in this petition is the constitutionality of the veto by the President
of certain provisions in the General Appropriations Act for the Fiscal Year
1992 relating to the payment of the adjusted pensions of retired Justices of
the Supreme Court and the Court of Appeals.
The petitioners are retired Justices of the Supreme Court and Court of
Appeals who are currently receiving monthly pensions under Republic Act
No. 910 as amended by Republic Act No. 1797. They filed the instant
petition on their own behalf and in representation of all other retired
Justices of the Supreme Court and the Court of Appeals similarly situated.
Named respondents are Hon. Franklin Drilon the Executive Secretary, Hon.
Guillermo Carague as Secretary of the Department of Budget and
Management, and Hon. Rosalinda Cajucom, the Treasurer of the
Philippines. The respondents are sued in their official capacities, being
officials of the Executive Department involved in the implementation of
the release of funds appropriated in the Annual Appropriations Law.
We treat the Comments of the Office of the Solicitor General (OSG) as an
Answer and decide the petition on its merits.

The factual backdrop of this case is as follows:
On June 20, 1953, Republic Act No, 910 was enacted to provide the
retirement pensions of Justices of the Supreme Court and of the Court of
Appeals who have rendered at least twenty (20) years service either in the
Judiciary or in any other branch of the Government or in both, having
attained the age of seventy (70) years or who resign by reason of incapacity
to discharge the duties of the office. The retired Justice shall receive during
the residue of his natural life the salary which he was receiving at the time
of his retirement or resignation.
Republic Act No. 910 was amended by Republic Act No. 1797 (approved
on June 21, 1957) which provided that:
Sec. 3-A. In case the salary of Justices of the Supreme Court or of the
Court of Appeals is increased or decreased, such increased or decreased
salary shall, for purposes of this Act, be deemed to be the salary or the
retirement pension which a Justice who as of June twelve, nineteen
hundred fifty-four had ceased to be such to accept another position in the
Government or who retired was receiving at the time of his cessation in
office. Provided, that any benefits that have already accrued prior to such
increase or decrease shall not be affected thereby.
Identical retirement benefits were also given to the members of the
Constitutional Commissions under Republic Act No. 1568, as amended by
Republic Act No. 3595. On November 12, 1974, on the occasion of the
Armed Forces Loyalty Day, President Marcos signed Presidential Decree
578 which extended similar retirement benefits to the members of the
Armed Forces giving them also the automatic readjustment features of
Republic Act No. 1797 and Republic Act No. 3595.
Two months later, however, President Marcos issued Presidential Decree
644 on January 25, 1975 repealing Section 3-A of Republic Act No. 1797
and Republic Act No. 3595 (amending Republic Act No. 1568 and
Presidential Decree No. 578) which authorized the adjustment of the
pension of the retired Justices of the Supreme Court, Court of Appeals,
Chairman and members of the Constitutional Commissions and the officers
and enlisted members of the Armed Forces to the prevailing rates of
salaries.
Significantly, under Presidential Decree 1638 the automatic readjustment
of the retirement pension of officers and enlisted men was subsequently
restored by President Marcos. A later decree Presidential Decree 1909 was
also issued providing for the automatic readjustment of the pensions of
members of the Armed Forces who have retired prior to September 10,
1979.
While the adjustment of the retirement pensions for members of the Armed
Forces who number in the tens of thousands was restored, that of the retired
Justices of the Supreme Court and Court of Appeals who are only a handful
and fairly advanced in years, was not.
Realizing the unfairness of the discrimination against the members of the
Judiciary and the Constitutional Commissions, Congress approved in 1990
a bill for the reenactment of the repealed provisions of Republic Act No.
1797 and Republic Act No. 3595. Congress was under the impression that
Presidential Decree 644 became law after it was published in the Official
Gazette on April 7, 1977. In the explanatory note of House Bill No. 16297
and Senate Bill No. 740, the legislature saw the need to reenact Republic
Act Nos. 1797 and 3595 to restore said retirement pensions and privileges
of the retired Justices and members of the Constitutional Commissions, in
order to assure those serving in the Supreme Court, Court of Appeals and
Constitutional Commissions adequate old age pensions even during the
7
time when the purchasing power of the peso has been diminished
substantially by worldwide recession or inflation. This is underscored by
the fact that the petitioner retired Chief Justice, a retired Associate Justice
of the Supreme Court and the retired Presiding Justice are presently
receiving monthly pensions of P3,333.33, P2,666.66 and P2,333.33
respectively.
President Aquino, however vetoed House Bill No. 16297 on July 11, 1990
on the ground that according to her "it would erode the very foundation of
the Government's collective effort to adhere faithfully to and enforce
strictly the policy on standardization of compensation as articulated in
Republic Act No. 6758 known as Compensation and Position Classification
Act of 1989." She further said that "the Government should not grant
distinct privileges to select group of officials whose retirement benefits
under existing laws already enjoy preferential treatment over those of the
vast majority of our civil service servants."
Prior to the instant petition, however, Retired Court of Appeals Justices
Manuel P. Barcelona, Juan P. Enriquez, Juan O. Reyes, Jr. and Guardson R.
Lood filed a letter/petition dated April 22, 1991 which we treated as
Administrative Matter No. 91-8-225-CA. The petitioners asked this Court
far a readjustment of their monthly pensions in accordance with Republic
Act No. 1797. They reasoned out that Presidential Decree 644 repealing
Republic Act No. 1797 did not become law as there was no valid
publication pursuant to Tañada v. Tuvera, (136 SCRA 27 [1985]) and 146
SCRA 446 [1986]). Presidential Decree 644 promulgated on January 24,
1975 appeared for the first time only in the supplemental issue of the
Official Gazette, (Vol. 74, No. 14) purportedly dated April 4, 1977 but
published only on September 5, 1983. Since Presidential Decree 644 has no
binding force and effect of law, it therefore did not repeal Republic Act No.
1797.
In a Resolution dated November 28, 1991 the Court acted favorably on the
request. The dispositive portion reads as follows:
WHEREFORE, the requests of retired Justices Manuel P. Barcelona, Juan
P. Enriquez, Juan O. Reyes and Guardson Lood are GRANTED. It is
hereby AUTHORIZED that their monthly pensions be adjusted and paid on
the basis of RA 1797 effective January 1, 1991 without prejudice to the
payment on their pension differentials corresponding to the previous years
upon the availability of funds for the purpose.
Pursuant to the above resolution, Congress included in the General
Appropriations Bill for Fiscal Year 1992 certain appropriations for the
Judiciary intended for the payment of the adjusted pension rates due the
retired Justices of the Supreme Court and Court of Appeals.
The pertinent provisions in House Bill No. 34925 are as follows:
XXVIII. THE JUDICIARY
A. Supreme Court of the Philippines and the Lower Courts.
For general administration, administration of personnel benefits,
supervision of courts, adjudication of constitutional questions appealed and
other cases, operation and maintenance of the Judicial and Bar Council in
the Supreme Court, and the adjudication of regional court cases,
metropolitan court cases, municipal trial court cases in Cities, municipal
circuit court cases, municipal, court cases, Shari'a district court cases and
Shari'a circuit court cases as indicated hereunder P2,095,651,000
xxx xxx xxx

Special Provisions.
1. Augmentation of any Item in the Court's Appropriations. Any savings in
the appropriation for the Supreme Court and the Lower Courts may be
utilized by the Chief Justice of the Supreme Court to augment any item of
the Court's appropriations for: (a) printing of decisions and publications of
Philippine Reports; b) commutable terminal leaves of Justices and other
personnel of the Supreme Court and any payment of adjusted pension rates
to retired Justices entitled thereto pursuant to Administrative Matter No.
91-8-225-CA; (c) repair, maintenance, improvement, and other operating
expenses of the courts' books and periodicals; (d) purchase, maintenance
and improvement of printing equipment; e) necessary expenses for the
employment of temporary employees, contractual and casual employees,
for judicial administration; f) maintenance and improvement of the Court's
Electronic Data Processing; (g) extraordinary expenses of the Chief Justice,
attendance in international conferences and conduct of training programs;
(h) commutable transportation and representation allowances and fringe
benefits for Justices, Clerks of Court, Court Administrator, Chief of Offices
and other Court personnel in accordance with the rates prescribed by law;
and (i) compensation of attorneys-de-oficio; PROVIDED, that as mandated
by LOI No. 489 any increases in salary and allowances shall be subject to
the usual procedures and policies as provided for under P.D. No. 985 and
other pertinent laws. (page 1071, General Appropriations Act, FY 1992;
Emphasis supplied)
xxx xxx xxx
4. Payment of Adjusted Pension Rates to Retired Justices. The amount
herein appropriated for payment of pensions to retired judges and justices
shall include the payment of pensions at the adjusted rates to retired
justices of the Supreme Court entitled thereto pursuant to the ruling of the
Court in Administrative Matter No. 91-8-225-C.A. (page 1071, General
Appropriations Act, FY 1992).
xxx xxx xxx
Activities and Purposes
1. General Administration and Support Services.
a. General administrative Services P 43,515,000
b. Payment of retirement gratuity
of national goverment officials
and employees P 206,717,000
c. Payment of terminal leave benefits to
officials and employees antitled thereto P 55,316,000
d. Payment of pension totired jude
and justice entitled thereto P 22,500,000
(page 1071, General Appropriations Act, FY 1992)
C. COURT OF APPEALS
For general administration, administration
of personnel benefit, benefits and the
adjudication of appealed and other cases
as indicated hereunder P114,615,000
Special Provisions.
1. Authority to Use Savings. Subject to the approval of the Chief Justice of
the Supreme Court in accordance with Section 25(5), Article VI of the
8
Constitution of the Republic of the Philippines, the Presiding Justice may
be authorized to use any savings in any item of the appropriation for the
Court of Appeals for purposes of: (1) improving its compound and facilities;
and (2) for augmenting any deficiency in any item of its appropriation
including its extraordinary expenses and payment of adjusted pension rates
to retired justices entitled thereto pursuant to Administrative Matter No.
91-8-225-C.A. (page 1079, General Appropriations Act, FY 1992;
Emphasis supplied)
2. Payment of adjustment Pension Rates to Retired Justices. The amount
herein appropriated for payment of pensions to retired judges and justices
shall include the payment of pensions at the adjusted rates to retired
justices of the Court of Appeals entitled thereto pursuant to the Ruling of
the Supreme Court in Administrative Matter No. 91-6-225-C.A. (page 1079
General Appropriations Act, FY 1992).
XL. GENERAL FUND ADJUSTMENT
For general fund adjustment for
operational and special requirements
as indicated hereunder P500,000,000
xxx xxx xxx
Special Provisions
1. Use of the Fund. This fund shall be used for:
xxx xxx xxx
1.3. Authorized overdrafts and/or valid unbooked obligations, including the
payment of back salaries and related personnel benefits arising from
decision of competent authorityincluding the Supreme Court decision in
Administrative Matter No. 91-8-225-C.A. and COA decision in No.
1704." (page 11649 Gen. Appropriations Act, FY 1992; Emphasis
supplied)
On January 15, 1992, the President vetoed the underlined portions of
Section 1 and the entire Section 4 the Special Provisions for the Supreme
Court of the Philippines and the Lower Courts (General Appropriations Act,
FY 1992, page 1071) and the underlined portions of Section 1 and the
entire Section 2, of the Special Provisions for the Court of Appeals (page
1079) and the underlined portions of Section 1.3 of Article XLV of the
Special Provisions of the General Fund Adjustments (page 1164, General
Appropriations Act, FY 1992).
The reason given for the veto of said provisions is that "the resolution of
this Honorable Court in Administrative Matter No. 91-8-225-CA pursuant
to which the foregoing appropriations for the payment of the retired
Justices of the Supreme Court and the Court of Appeals have been enacted
effectively nullified the veto of the President on House Bill No. 16297, the
bill which provided for the automatic increase in the retirement pensions of
the Justices of the Supreme Court and the Court of Appeals and chairmen
of the Constitutional Commissions by re-enacting Republic Act No. 1797
and Republic Act No. 3595. The President's veto of the aforesaid
provisions was further justified by reiterating the earlier reasons for vetoing
House Bill No. 16297: "they would erode the very foundation of our
collective effort to adhere faithfully to and enforce strictly the policy and
standardization of compensation. We should not permit the grant of distinct
privileges to select group of officials whose retirement pensions under
existing laws already enjoy preferential treatment over those of the vast
majority of our civil servants."

Hence, the instant petition filed by the petitioners with the assertions that:
1) The subject veto is not an item veto;
2) The veto by the Executive is violative of the doctrine of separation of
powers;
3) The veto deprives the retired Justices of their rights to the pensions due
them;
4) The questioned veto impairs the Fiscal Autonomy guaranteed by the
Constitution.
Raising similar grounds, the petitioners in AM-91-8-225-CA, brought to
the attention of this Court that the veto constitutes no legal obstacle to the
continued payment of the adjusted pensions pursuant to the Court's
resolution.
On February 14, 1992, the Court resolved to consolidate Administrative
Matter No. 91-8-225-CA with G.R. No. 103524.
The petitioners' contentions are well-taken.
I
It cannot be overstressed that in a constitutional government such as ours,
the rule of law must prevail. The Constitution is the basic and paramount
law to which all other laws must conform and to which all persons
including the highest official of this land must defer. From this cardinal
postulate, it follows that the three branches of government must discharge
their respective functions within the limits of authority conferred by the
Constitution. Under the principle of separation of powers, neither Congress,
the President nor the Judiciary may encroach on fields allocated to the
other branches of government. The legislature is generally limited to the
enactment of laws, the executive to the enforcement of laws and the
judiciary to their interpretation and application to cases and controversies.
The Constitution expressly confers or the judiciary the power to maintain
inviolate what it decrees. As the guardian of the Constitution we cannot
shirk the duty of seeing to it that the officers in each branch of government
do not go beyond their constitutionally allocated boundaries and that the
entire Government itself or any of its branches does not violate the basic
liberties of the people. The essence of this judicial duty was emphatically
explained by Justice Laurel in the leading case of Angara v. Electoral
Commission, (63 Phil. 139 [1936]) to wit:
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution
itself has provided for the instrumentality of the judiciary as the rational
way. And when the judiciary mediates to allocate constitutional
boundaries it does not assert any superiority over the other department, 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. (Emphasis
supplied)
The act of the Executive in vetoing the particular provisions is an exercise
of a constitutionally vested power. But even as the Constitution grants the
power, it also provides limitations to its exercise. The veto power is not
absolute.
9
The pertinent provision of the Constitution reads:
The President shall have the power to veto any particular item or items in
an appropriation, revenue or tariff bill but the veto shall not affect the item
or items to which he does not object. (Section 27(2), Article VI,
Constitution)
The OSG is correct when it states that the Executive must veto a bill in its
entirety or not at all. He or she cannot act like an editor crossing out
specific lines, provisions, or paragraphs in a bill that he or she dislikes. In
the exercise of the veto power, it is generally all or nothing. However,
when it comes to appropriation, revenue or tariff bills, the Administration
needs the money to run the machinery of government and it can not veto
the entire bill even if it may contain objectionable features. The President is,
therefore, compelled to approve into law the entire bill, including its
undesirable parts. It is for this reason that the Constitution has wisely
provided the "item veto power" to avoid inexpedient riders being attached
to an indispensable appropriation or revenue measure.
The Constitution provides that only a particular item or items may be
vetoed. The power to disapprove any item or items in an appropriate bill
does not grant the authority to veto a part of an item and to approve the
remaining portion of the same item. (Gonzales v. Macaraig, Jr., 191 SCRA
452, 464 [1990])
We distinguish an item from a provision in the following manner:
The terms item and provision in budgetary legislation and practice are
concededly different. An item in a bill refers to the particulars, the details,
the distinct and severable parts . . . of the bill (Bengzon, supra, at 916.) It is
an indivisible sum of money dedicated to a stated purpose (Commonwealth
v. Dodson, 11 S.E. 2d 120, 124, 125, etc., 176 Va. 281) The United States
Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S.
410, 414, 57 Ct. 252, 81 L. Ed, 312) declared "that an "tem"of an
appropriation bill obviously means an item which in itself is a specific
appropriation of money, not some general provision of law, which happens
to be put into an appropriation bill." (id. at page 465)
We regret having to state that misimpressions or unfortunately wrong
advice must have been the basis of the disputed veto.
The general fund adjustment is an item which appropriates
P500,000,000.00 to enable the Government to meet certain unavoidable
obligations which may have been inadequately funded by the specific items
for the different branches, departments, bureaus, agencies, and offices of
the government.
The President did not veto this item. What were vetoed were methods or
systems placed by Congress to insure that permanent and continuing
obligations to certain officials would be paid when they fell due.
An examination of the entire sections and the underlined portions of the
law which were vetoed will readily show that portions of the item have
been chopped up into vetoed and unvetoed parts. Less than all of an item
has been vetoed. Moreover, the vetoed portions are not items. They
are provisions.
Thus, the augmentation of specific appropriations found inadequate to pay
retirement payments, by transferring savings from other items of
appropriation is a provision and not an item. It gives power to the Chief
Justice to transfer funds from one item to another. There is no specific
appropriation of money involved.

In the same manner, the provision which states that in compliance with
decisions of the Supreme Court and the Commission on Audit, funds still
undetermined in amount may be drawn from the general fund adjustment is
not an item. It is the "general fund adjustment" itself which is the item. This
was not touched. It was not vetoed.
More ironic is the fact that misinformation led the Executive to believe that
the items in the 1992 Appropriations Act were being vetoed when, in fact,
the veto struck something else.
What were really vetoed are:
(1) Republic Act No. 1797 enacted as early as June 21, 1957; and
(2) The Resolution of the Supreme Court dated November 28, 1991 in
Administrative Matter No. 91-8-225-CA.
We need no lengthy justifications or citations of authorities to declare that
no President may veto the provisions of a law enacted thirty-five (35) years
before his or her term of office. Neither may the President set aside or
reverse a final and executory judgment of this Court through the exercise of
the veto power.
A few background facts may be reiterated to fully explain the unhappy
situation.
Republic Act No. 1797 provided for the adjustment of pensions of retired
Justices which privilege was extended to retired members of Constitutional
Commissions by Republic Act No. 3595.
On January 25, 1975, President Marcos issued Presidential Decree No. 644
which repealed Republic Acts 1797 and 3595. Subsequently, automatic
readjustment of pensions for retired Armed Forces officers and men was
surreptitiously restored through Presidential Decree Nos. 1638 and 1909.
It was the impression that Presidential Decree No. 644 had reduced the
pensions of Justices and Constitutional Commissioners which led Congress
to restore the repealed provisions through House Bill No. 16297 in 1990.
When her finance and budget advisers gave the wrong information that the
questioned provisions in the 1992 General Appropriations Act were simply
an attempt to overcome her earlier 1990 veto, she issued the veto now
challenged in this petition.
It turns out, however, that P.D. No. 644 never became valid law. If P.D. No.
644 was not law, it follows that Rep. Act No. 1797 was not repealed and
continues to be effective up to the present. In the same way that it was
enforced from 1951 to 1975, so should it be enforced today.
House Bill No. 16297 was superfluous as it tried to restore benefits which
were never taken away validly. The veto of House Bill No. 16297 in 1991
did not also produce any effect. Both were based on erroneous and
non-existent premises.
From the foregoing discussion, it can be seen that when the President
vetoed certain provisions of the 1992 General Appropriations Act, she was
actually vetoing Republic Act No. 1797 which, of course, is beyond her
power to accomplish.
Presidential Decree No. 644 which purportedly repealed Republic Act No.
1717 never achieved that purpose because it was not properly published. It
never became a law.
10
The case of Tañda v. Tuvera (134 SCRA 27 [1985]and 146 SCRA 446
[1986]) specifically requires that "all laws shall immediately upon their
approval or as soon thereafter as possible, be published in full in the
Official Gazette, to become effective only after fifteen days from their
publication, or on another date specified by the legislature, in accordance
with Article 2 of the Civil Code." This was the Court's answer to the
petition of Senator Lorenzo Tañada and other opposition leaders who
challenged the validity of Marcos' decrees which, while never published,
were being enforced. Secret decrees are anathema in a free society.
In support of their request, the petitioners in Administrative Matter No.
91-9-225-CA secured certification from Director Lucita C. Sanchez of the
National Printing Office that the April 4, 1977 Supplement to the Official
Gazette was published only on September 5, 1983 and officially released
on September 29, 1983.
On the issue of whether or not Presidential Decree 644 became law, the
Court has already categorically spoken in a definitive ruling on the matter,
to wit:
xxx xxx xxx
PD 644 was promulgated by President Marcos on January 24, 1975, but
was not immediately or soon thereafter published although preceding and
subsequent decrees were duly published in the Official Gazette. It now
appears that it was intended as a secret decree "NOT FOR
PUBLICATION" as the notation on the face of the original copy thereof
plainly indicates (Annex B). It is also clear that the decree was published in
the back-dated Supplement only after it was challenged in the Tañada case
as among the presidential decrees that had not become effective for lack of
the required publication. The petition was filed on May 7, 1983, four
months before the actual publication of the decree.
It took more than eight years to publish the decree after its promulgation in
1975. Moreover, the publication was made in bad faith insofar as it
purported to show that it was done in 1977 when the now demonstrated fact
is that the April 4, 1977 supplement was actually published and released
only in September 1983. The belated publication was obviously intended to
refute the petitioner's claim in the Tañada case and to support the Solicitor
General's submission that the petition had become moot and academic.
xxx xxx xxx
We agree that PD 644 never became a law because it was not validly
published and that, consequently, it did not have the effect of repealing RA
1797. The requesting Justices (including Justice Lood, whose request for
the upgrading of his pension was denied on January 15, 1991) are therefore
entitled to be paid their monthly pensions on the basis of the latter measure,
which remains unchanged to date.
The Supreme Court has spoken and it has done so with finality, logically
and rightly so as to assure stability in legal relations, and avoid confusion.
(see Ver v. Quetullo, 163 SCRA 80 [1988]) Like other decisions of this
Court, the ruling and principles set out in the Court resolution constitute
binding precedent. (Bulig-Bulig Kita Kamaganak Association, et al. v.
Sulpicio Lines, Inc., Regional Trial Court, etc., G.R. 847500 16 May 1989,
En Banc, Minute Resolution)
The challenged veto has far-reaching implications which the Court can not
countenance as they undermine the principle of separation of powers. The
Executive has no authority to set aside and overrule a decision of the
Supreme Court.

We must emphasize that the Supreme Court did not enact Rep. Act No.
1797. It is not within its powers to pass laws in the first place. Its duty is
confined to interpreting or defining what the law is and whether or not it
violates a provision of the Constitution.
As early as 1953, Congress passed a law providing for retirement pensions
to retired Justices of the Supreme Court and the Court of Appeals. This law
was amended by Republic Act 1797 in 1957. Funds necessary to pay the
retirement pensions under these statutes are deemed automatically
appropriated every year.
Thus, Congress included in the General Appropriations Act of 1992,
provisions identifying funds and savings which may be used to pay the
adjusted pensions pursuant to the Supreme Court Resolution. As long as
retirement laws remain in the statute book, there is an existing obligation
on the part of the government to pay the adjusted pension rate pursuant to
RA 1797 and AM-91-8-225-CA.
Neither may the veto power of the President be exercised as a means of
repealing RA 1797. This is arrogating unto the Presidency legislative
powers which are beyond its authority. The President has no power to enact
or amend statutes promulgated by her predecessors much less to repeal
existing laws. The President's power is merely to execute the laws as
passed by Congress.
II
There is a matter of greater consequence arising from this petition. The
attempt to use the veto power to set aside a Resolution of this Court and to
deprive retirees of benefits given them by Rep. Act No. 1797 trenches upon
the constitutional grant of fiscal autonomy to the Judiciary.
Sec. 3, Art. VIII mandates that:
Sec. 3 The Judiciary shall enjoy fiscal autonomy. Appropriations for the
Judiciary may not be reduced by the legislature below the amount
appropriated for the previous year and, after approval, shall be
automatically and regularly released.
We can not overstress the importance of and the need for an independent
judiciary. The Court has on various past occasions explained the
significance of judicial independence. In the case of De la Llana v.
Alba (112 SCRA 294 [1982]), it ruled:
It is a cardinal rule of faith of our constitutional regime that it is the people
who are endowed with rights, to secure which a government is instituted.
Acting as it does through public officials, it has to grant them either
expressly or implicitly certain powers. These they exercise not for their
own benefit but for the body politic. . . .
A public office is a public trust. That is more than a moral adjuration. It is a
legal imperative. The law may vest in a public official certain rights. It does
so to enable them to perform his functions and fulfill his responsibilities
more efficiently. . . . It is an added guarantee that justices and judges can
administer justice undeterred by any fear of reprisal or untoward
consequence. Their judgments then are even more likely to be inspired
solely by their knowledge of the law and the dictates of their conscience,
free from the corrupting influence of base or unworthy motives. The
independence of which they are assured is impressed with a significance
transcending that of a purely personal right. (At pp. 338-339)
11
The exercise of the veto power in this case may be traced back to the
efforts of the Department of Budget and Management (DBM) to ignore or
overlook the plain mandate of the Constitution on fiscal autonomy. The
OSG Comment reflects the same truncated view of the provision.
We have repeatedly in the past few years called the attention of DBM that
not only does it allocate less than one percent (1%) of the national budget
annually for the 22,769 Justices, Judges, and court personnel all over the
country but it also examines with a fine-toothed come how we spend the
funds appropriated by Congress based on DBM recommendations.
The gist of our position papers and arguments before Congress is as
follows:
The DBM requires the Supreme Court, with Constitutional Commissions,
and the Ombudsman to submit budget proposals in accordance with
parameters it establishes. DBM evaluates the proposals, asks each agency
to defend its proposals during DBM budget hearings, submits its own
version of the proposals to Congress without informing the agency of major
alterations and mutilations inflicted on their proposals, and expects each
agency to defend in Congress proposals not of the agency's making.
After the general appropriations bill is passed by Congress and signed into
law by the President, the tight and officious control by DBM continues. For
the release of appropriated funds, the Judiciary, Constitutional
Commissions, and Ombudsman are instructed through "guidelines", how to
prepare Work and Financial Plans and requests for monthly allotments. The
DBM evaluates and approves these plans and requests and on the basis of
its approval authorizes the release of allotments with corresponding notices
of cash allocation. These notices specify the maximum withdrawals each
month which the Supreme Court, the Commissions and the Ombudsman
may make from the servicing government bank. The above agencies are
also required to submit to DBM monthly, quarterly and year-end budget
accountability reports to indicate their performance, physical and financial
operations and income,
The DBM reserves to itself the power to review the accountability reports
and when importuned for needed funds, to release additional allotments to
the agency. Since DBM always prunes the budget proposals to below
subsistence levels and since emergency situations usually occur during the
fiscal year, the Chief Justices, Chairmen of the Commissions, and
Ombudsman are compelled to make pilgrimages to DBM for additional
funds to tide their respective agencies over the emergency.
What is fiscal autonomy?
As envisioned in the Constitution, the fiscal autonomy enjoyed by the
Judiciary, the Civil Service Commission, the Commission on Audit, the
Commission on Elections, and the Office of the Ombudsman contemplates
a guarantee on full flexibility to allocate and utilize their resources with the
wisdom and dispatch that their needs require. It recognizes the power and
authority to levy, assess and collect fees, fix rates of compensation not
exceeding the highest rates authorized by law for compensation and pay
plans of the government and allocate and disburse such sums as may be
provided by law or prescribed by them in the course of the discharge of
their functions.
Fiscal autonomy means freedom from outside control. If the Supreme
Court says it needs 100 typewriters but DBM rules we need only 10
typewriters and sends its recommendations to Congress without even
informing us, the autonomy given by the Constitution becomes an empty
and illusory platitude.

The Judiciary, the Constitutional Commissions, and the Ombudsman must
have the independence end flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions and constraints on the
manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and
violative not only of the express mandate of the Constitution but especially
as regards the Supreme Court, of the independence and separation of
powers upon which the entire fabric of our constitutional system is based.
In the interest of comity and cooperation, the Supreme Court,
Constitutional Commissions, and the Ombudsman have so far limited their
objections to constant reminders. We now agree with the petitioners that
this grant of autonomy should cease to be a meaningless provision.
In the case at bar, the veto of these specific provisions in the General
Appropriations Act is tantamount to dictating to the Judiciary how its funds
should be utilized, which is clearly repugnant to fiscal autonomy. The
freedom of the Chief Justice to make adjustments in the utilization of the
funds appropriated for the expenditures of the judiciary, including the use
of any savings from any particular item to cover deficits or shortages in
other items of the Judiciary is withheld. Pursuant to the Constitutional
mandate, the Judiciary must enjoy freedom in the disposition of the funds
allocated to it in the appropriations law. It knows its priorities just as it is
aware of the fiscal restraints. The Chief Justice must be given a free hand
on how to augment appropriations where augmentation is needed.
Furthermore, in the case of Gonzales v. Macaraig (191 SCRA 452 [1990]),
the Court upheld the authority of the President and other key officials to
augment any item or any appropriation from savings in the interest of
expediency and efficiency. The Court stated that:
There should be no question, therefore, that statutory authority has, in fact,
been granted. And once given, the heads of the different branches of the
Government and those of the Constitutional Commissions are afforded
considerable flexibility in the use of public funds and resources (Demetria
v. Alba, supra). The doctrine of separation of powers is in no way
endangered because the transfer is made within a department (or branch of
government) and not from one department (branch) to another.
The Constitution, particularly Article VI, Section 25(5) also provides:
Sec. 25. (5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by law, be
authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective
appropriations.
In the instant case, the vetoed provisions which relate to the use of savings
for augmenting items for the payment of the pension differentials, among
others, are clearly in consonance with the abovestated pronouncements of
the Court. The veto impairs the power of the Chief Justice to augment other
items in the Judiciary's appropriation, in contravention of the constitutional
provision on "fiscal autonomy."
III
Finally, it can not be denied that the retired Justices have a vested right to
the accrued pensions due them pursuant to RA 1797.
The right to a public pension is of statutory origin and statutes dealing with
pensions have been enacted by practically all the states in the United States
(State ex rel. Murray v, Riley, 44 Del 505, 62 A2d 236), and presumably in
12
most countries of the world. Statutory provisions for the support of Judges
or Justices on retirement are founded on services rendered to the state.
Where a judge has complied with the statutory prerequisite for retirement
with pay, his right to retire and draw salary becomes vested and may not,
thereafter, be revoked or impaired. (Gay v. Whitehurst, 44 So ad 430)
Thus, in the Philippines, a number of retirement laws have been enacted,
the purpose of which is to entice competent men and women to enter the
government service and to permit them to retire therefrom with relative
security, not only those who have retained their vigor but, more so, those
who have been incapacitated by illness or accident. (In re: Amount of the
Monthly Pension of Judges and Justices Starting From the Sixth Year of
their Retirement and After the Expiration of the Initial Five-year Period of
Retirement, (190 SCRA 315 [1990]).
As early as 1953, Rep. Act No. 910 was enacted to grant pensions to retired
Justices of the Supreme Court and Court of Appeals.
This was amended by RA 1797 which provided for an automatic
adjustment of the pension rates. Through the years, laws were enacted and
jurisprudence expounded to afford retirees better benefits.
P.D. No. 1438, for one, was promulgated on June 10, 1978 amending RA
910 providing that the lump sum of 5 years gratuity to which the retired
Justices of the Supreme Court and Court of Appeals were entitled was to be
computed on the basis of the highest monthly aggregate of transportation,
living and representation allowances each Justice was receiving on the date
of his resignation. The Supreme Court in a resolution dated October 4,
1990, stated that this law on gratuities covers the monthly pensions of
retired Judges and Justices which should include the highest monthly
aggregate of transportation, living and representation allowances the retiree
was receiving on the date of retirement. (In Re: Amount of the Monthly
Pension of Judges and Justices, supra)
The rationale behind the veto which implies that Justices and Constitutional
officers are unduly favored is, again, a misimpression.
Immediately, we can state that retired Armed Forces officers and enlisted
men number in the tens of thousands while retired Justices are so few they
can be immediately identified. Justices retire at age 70 while military men
retire at a much younger age — some retired Generals left the military at
age 50 or earlier. Yet the benefits in Rep. Act No. 1797 are made to apply
equally to both groups. Any ideas arising from an alleged violation of the
equal protection clause should first be directed to retirees in the military or
civil service where the reason for the retirement provision is not based on
indubitable and constitutionally sanctioned grounds, not to a handful of
retired Justices whose retirement pensions are founded on constitutional
reasons.
The provisions regarding retirement pensions of justices arise from the
package of protections given by the Constitution to guarantee and preserve
the independence of the Judiciary.
The Constitution expressly vests the power of judicial review in this Court.
Any institution given the power to declare, in proper cases, that act of both
the President and Congress are unconstitutional needs a high degree of
independence in the exercise of its functions. Our jurisdiction may not be
reduced by Congress. Neither may it be increased without our advice and
concurrence. Justices may not be removed until they reach age 70 except
through impeachment. All courts and court personnel are under the
administrative supervision of the Supreme Court. The President may not
appoint any Judge or Justice unless he or she has been nominated by the
Judicial and Bar Council which, in turn, is under the Supreme Court's

supervision. Our salaries may not be decreased during our continuance in
office. We cannot be designated to any agency performing administrative
or quasi-judicial functions. We are specifically given fiscal autonomy. The
Judiciary is not only independent of, but also co-equal and coordinate with
the Executive and Legislative Departments. (Article VIII and section 30,
Article VI, Constitution)
Any argument which seeks to remove special privileges given by law to
former Justices of this Court and the ground that there should be no "grant
of distinct privileges" or "preferential treatment" to retired Justices ignores
these provisions of the Constitution and, in effect, asks that these
Constitutional provisions on special protections for the Judiciary be
repealed. The integrity of our entire constitutional system is premised to a
large extent on the independence of the Judiciary. All these provisions are
intended to preserve that independence. So are the laws on retirement
benefits of Justices.
One last point.
The Office of the Solicitor General argues that:
. . . Moreover, by granting these benefits to retired Justices implies that
public funds, raised from taxes on other citizens, will be paid off to select
individuals who are already leading private lives and have ceased
performing public service. Said the United States Supreme Court, speaking
through Mr. Justice Miller: "To lay with one hand the power of the
government on the property of the citizen, and with the other to bestow
upon favored individuals . . . is nonetheless a robbery because it is done
under the forms of law . . ." (Law Association V. Topeka, 20 Wall. 655)
(Comment, p. 16)
The above arguments are not only specious, impolite and offensive; they
certainly are unbecoming of an office whose top officials are supposed to
be, under their charter, learned in the law.
Chief Justice Cesar Bengzon and Chief Justice Querube Makalintal,
Justices J.B.L. Reyes, Cecilia Muñoz Palma, Efren Plana, Vicente Abad
Santos, and, in fact, all retired Justices of the Supreme Court and the Court
of Appeals may no longer be in the active service. Still, the Solicitor
General and all lawyers under him who represent the government before
the two courts and whose predecessors themselves appeared before these
retirees, should show some continuing esteem and good manners toward
these Justices who are now in the evening of their years.
All that the retirees ask is to be given the benefits granted by law. To
characterize them as engaging in "robbery" is intemperate, abrasive, and
disrespectful more so because the argument is unfounded.
If the Comment is characteristic of OSG pleadings today, then we are sorry
to state that the then quality of research in that institution has severely
deteriorated.
In the first place, the citation of the case is, wrong. The title is not LAW
Association v. Topeka but Citizen's Savings and Loan Association of
Cleveland, Ohio v. Topeka City (20 Wall. 655; 87 U.S. 729; 22 Law. Ed.
455 [1874]. Second, the case involved the validity of a statute authorizing
cities and counties to issue bonds for the purpose of building bridges,
waterpower, and other public works to aid private railroads improve their
services. The law was declared void on the ground that the right of a
municipality to impose a tax cannot be used for private interests.
The case was decided in 1874. The world has turned over more than 40,000
times since that ancient period. Public use is now equated with public
13
interest. Public money may now be used for slum clearance, low-cost
housing, squatter resettlement, urban and agrarian reform where only
private persons are the immediate beneficiaries. What was "robbery" in
1874 is now called "social justice." There is nothing about retirement
benefits in the cited case. Obviously, the OSG lawyers cited from an old
textbook or encyclopedia which could not even spell "loan" correctly.
Good lawyers are expected to go to primary sources and to use only
relevant citations.
The Court has been deluged with letters and petitions by former colleagues
in the Judiciary requesting adjustments in their pensions just so they would
be able to cope with the everyday living expenses not to mention the high
cost of medical bills that old age entails. As Justice Cruz aptly stated
in Teodoro J. Santiago v. COA, (G.R. No. 92284, July 12, 1991);
Retirement laws should be interpreted liberally in favor of the retiree
because their intention is to provide for his sustenance, and hopefully even
comfort, when he no longer has the stamina to continue earning his
livelihood. After devoting the best years of his life to the public service, he
deserves the appreciation of a grateful government as best concretely
expressed in a generous retirement gratuity commensurate with the value
and length of his services. That generosity is the least he should expect now
that his work is done and his youth is gone. Even as he feels the weariness
in his bones and glimpses the approach of the lengthening shadows, he
should be able to luxuriate in the thought that he did his task well, and was
rewarded for it.
For as long as these retired Justices are entitled under laws which continue
to be effective, the government can not deprive them of their vested right to
the payment of their pensions.
WHEREFORE, the petition is hereby GRANTED. The questioned veto is
SET ASIDE as illegal and unconstitutional. The vetoed provisions of the
1992 Appropriations Act are declared valid and subsisting. The
respondents are ordered to automatically and regularly release pursuant to
the grant of fiscal autonomy the funds appropriated for the subject pensions
as well as the other appropriations for the Judiciary. The resolution in
Administrative Matter No. 91-8-225-CA dated November 28, 1991 is
likewise ordered to be implemented as promulgated.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin,
Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ.,
concur.
Bellosillo, J., is on leave.
G.R. No. L-15138 July 31, 1961
BILL MILLER, petitioner-appellee,
vs.
ATANACIO A. MARDO, and MANUEL
GONZALES, respondents-appellants.
x---------------------------------------------------------x
G.R. No. L-15377 July 31, 1961

NUMERIANA RAGANAS, plaintiff-appellant,
vs.
SEN BEE TRADING COMPANY, MACARIO TAN, and SERGIO
TAN, defendants-appellees.
x---------------------------------------------------------x
G.R. No. L-16660 July 31, 1961
VICENTE ROMERO, petitioner-appellee,
vs.
ANGEL HERNANDO ETC., and SIA SENG, respondents-appellants.
x---------------------------------------------------------x
G.R. No. L-16781 July 31, 1961
CHIN HUA TRADING COMPANY, and LAO KANG
SUY, petitioners-appellees,
vs.
ATANACIO A. MARDO, JORGE BENEDICTO, and CRESENCIO
ESTAÑO, respondents-appellants.
x---------------------------------------------------------x
G.R. No. L-17056 July 31, 1961
FRED WILSON & CO., INC., petitioner-appellant,
vs.
MELITON C. PARDUCHO, ETC., and MARIANO
PABILIARE, respondents-appellees.
R. L. Resurreccion for petitioner-appellee.
Paciano C. C. Villavieja for respondents-appellants.
BARRERA, J.:
These appeals, although originating from different Courts of First Instance,
are here treated together in this single decision because they present but
one identical question of law, namely, the validity of Reorganization Plan
No. 20-A, prepared and submitted by the Government Survey and
Reorganization Commission under the authority of Republic Act No. 997,
as amended by Republic Act No. 1241, insofar as it confers jurisdiction to
the Regional Offices of the Department of Labor created in said Plan to
decide claims of laborers for wages, overtime and separation pay, etc.
In G.R. No. L-15138, Manuel Gonzales filed with Regional Office No. 3 of
the Department of Labor, in Manila, a complaint (IS-1148) against Bill
Miller (owner and manager of Miller Motors) claiming to be a driver of
Miller from December 1, 1956 to October 31, 1957, on which latter date he
was allegedly arbitrarily dismissed, without being paid separation pay. He
prayed for judgement for the amount due him as separation pay plus
damages. Upon receipt of said complaint, Chief Hearing Officer Atanacio
Mardo of Regional Office No. 3 of the Department of Labor required
Miller to file an answer. Whereupon, Miller filed with the Court of First
Instance of Baguio a petition (Civil Case No. 759) praying for judgment
prohibiting the Hearing Officer from proceeding with the case, for the
reason that said Hearing Officer had no jurisdiction to hear and decide the
subject matter of the complaint. The court then required the Hearing
Officer and Gonzales to answer and, as prayed for, issued a writ of
preliminary injunction. The latter file their separate motions to dismiss the
petition, on the ground of lack of jurisdiction, improper venue, and
14
non-exhaustion of administrative remedies, it being argued that pursuant to
Republic Acts Nos. 997 and 1241, as implemented by Executive Order No.
218, series of 1956 and Reorganization Plan No. 20-A, regional offices of
the Department of labor have exclusive and original jurisdiction over all
cases affecting money claims arising from violations of labor standards or
working conditions. Said motions to dismiss were denied by the court.
Answers were then filed and the case was heard. Thereafter, the court
rendered a decision holding that Republic Acts Nos. 997 and 1241, as well
as Executive Order No. 218, series of 1956 and Reorganization Plan No.
20-A issued pursuant thereto, did not repeal the provision of the Judiciary
Act conferring on courts of first instance original jurisdiction to take
cognizance of money claims arising from violations of labor standards. The
question of venue was also dismissed for being moot, the same having been
already raised and decided in a petition for certiorari and prohibition
previously filed with this Court in G.R. No. L-14007 (Mardo, etc. v. De
Veyra, etc.) which was dismissed for lack of merit in our resolution of July
7, 1958. From the decision of the Court of First Instance of Baguio,
respondents Hearing Officer and Gonzales interposed the present appeal
now before us.
In G.R. No. L-16781, Cresencio Estano filed with Regional Office No. 3 of
the Department of Labor, a complaint (RO 3 Ls. Case No. 874) against
Chin Hua Trading Co. and/or Lao Kang Suy and Ke Bon Chiong, as
Manager and Assistant Manager thereof, respectively, claiming to have
been their driver from June 17, 1947 to June 4, 1955, for which service he
was not paid overtime pay (for work in excess of 8 hours and for Sundays
and legal holidays) and vacation leave pay. He prayed for judgment for the
amount due him, plus attorney's fees. Chin Hua Trading, et al., filed their
answer and, issues having been joined, hearing thereof was started before
Chief Hearing Officer Atanacio Mardo and Hearing Officer Jorge
Benedicto. Before trial of the case could be terminated, however, Chin Hua
Trading, et al., filed with the Court of First Instance of Manila a petition for
prohibition with preliminary injunction (Civil Case No. 26826)), to restrain
the hearing officers from proceeding with the disposition of the case, on the
ground that they have no jurisdiction to entertain the same, as
Reorganization Plan No. 20-A and Executive Order No. 218, series of 1956,
in relation to Republic Act No. 997, as amended by Republic Act No. 1241,
empowering them to adjudicate the complaint, is invalid or unconstitutional.
As prayed for, a preliminary injunction was issued by the court. After due
hearing the court rendered a decision holding that Reorganization Plan No.
20-A is null and void and therefore, granted the writ of prohibition making
permanent the preliminary injunction previously issued. From this decision,
the claimant and the hearing officers appealed to the Court of Appeals,
which certified the case to us, as it involves only questions of law.
In G.R. No. L-15377, appellant Numeriana Raganas filed with the Court of
First Instance of Cebu a complaint (Civil Case No. R-5535) against
appellees Sen Bee Trading Company, Macario Tan and Sergio Tan,
claiming that she was employed by appellees as a seamstress from June 5,
1952 to January 11, 1958, for which service she was underpaid and was not
given overtime, as well as vacation and sick leave pay. She prayed for
judgment on the amount due her for the same plus damages. To said
complaint, appellees filed a motion to dismiss, on the ground that the trial
court has no jurisdiction to hear the case as it involves a money claim and
should, under Reorganization Plan No. 20-A be filed with the Regional
Office of the Department of Labor; and there is pending before the regional
office of the Department of Labor, a claim for separation vacation, sick and
maternity leave pay filed by the same plaintiff (appellant) against the same
defendants-appellees). Acting on said motion, the court dismissed the case,
relying on the provision of Section 25, Article VI of Reorganization Plan
No. 20-A and on our resolution in the case of NASSCO v. Arca, et al. (G.R.
No. L-12249, May 6, 1957). From this order, appellant Raganas appealed
to the Court of Appeals, but said court certified the case to us.

In G.R. No. L-16660, Vicente B. Romero filed with Regional Officer No. 2
of the Department of Labor a complaint (Wage Case No. 196-W) against
Sia Seng, for recovery of alleged unpaid wages, overtime and separation
pay. Sia Seng, filed an answer. At the date set for hearing the latter did not
appear despite due notice to him and counsel. Upon his petition, Romero
was allowed to present his evidence. Thereafter, a decision was rendered by
the Hearing Officer in favor of Romero. Upon the latter's motion for
execution, the records of the case were referred to Regional Labor
Administrator Angel Hernando for issuance of said writ of execution, being
the officer charged with the duty of issuing the same. Hernando, believing
that Sia Seng should be given a chance to present his evidence, refused to
issue the writ of execution and ordered a re-hearing. As a consequence,
Romero filed with the Court of First Instance of Isabela a petition
for mandamus (Case No. Br. II-35) praying that an order be issued
commanding respondent Regional Labor Administrator to immediately
issue a writ of execution of the decision in Wage Case No. 196-W. To this
petition, respondent Regional Labor Administrator filed a motion to
dismiss, on the ground that it states no cause of action, but action thereon
was deferred until the case is decided on the merits. Sia Seng filed his
answer questioning the validity of the rules and regulations issued under
the authority of Reorganization Plan No. 20-A. After hearing, the court
rendered a decision ordering, inter alia, respondent Regional Labor
Administrator to forthwith issue the corresponding writ of execution, as
enjoined by Section 48, of the Rules and Regulations No. 1 of the Labor
Standards Commission. From this decision of the Court of First Instance,
Sia Seng and Regional Labor Administrator Hernando appealed to us.
Appellant Sia Seng urges in his appeal that the trial court erred in not
dismissing the petition, in spite of the fact that the decision sought to be
enforced by appellee Romero was rendered by a hearing officer who had
no authority to render the same, and in failing to hold that Reorganization
Plan No. 20-A was not validly passed as a statute and is unconstitutional.
In G.R. No. L-17056, Mariano Pabillare instituted in Regional Office No. 3
of the Department of Labor a complaint (IS-2168) against petitioner Fred
Wilson & Co., Inc., alleging that petitioner engaged his services as Chief
Mechanic, Air conditioning Department, from October 1947 to February 19,
1959, when he was summarily dismissed without cause and without
sufficient notice and separation pay. He also claimed that during his
employment he was not paid for overtime rendered by him. He prayed for
judgment for the amount due him for such overtime and separation pay.
Petitioner moved to dismiss the complaint, on the ground that said regional
office "being purely an administrative body, has no power, authority, nor
jurisdiction to adjudicate the claim sought to be recovered in the action."
Said motion to dismiss having been denied by respondent Hearing Officer
Meliton Parducho, petitioner Fred Wilson & Co., Inc. filed with the Court
of First Instance of Manila a petition for certiorari and prohibition, with
preliminary injunction (Civil Case No. 41954) to restrain respondent
hearing officer from proceeding with the case, and praying, among others,
that Reorganization Plan No. 20-A, insofar as it vests original and
exclusive jurisdiction over money claims (to the exclusion of regular courts
of justice) on the Labor Standards Commission or the Regional Offices of
the Department of Labor, be declared null and void and unconstitutional.
As prayed for, the court granted a writ of preliminary injunction.
Respondents Hearing Officer and Pabillare filed answer and the case was
heard. After hearing, the court rendered a decision declaring that "by the
force of Section 6 of R.A. No. 997, as amended by R.A. 1241, Plan No.
20-A was deemed approved by Congress when it adjourned its session in
1956' (Res. of May 6, 1957 in National Shipyards Steel Corporation v.
Vicente Area, G.R. No. L-12249). It follows that the questioned
reorganization Plan No. 20-A is valid.".
Petitioner Fred Wilson & Co., Inc. appealed directly to us from this
decision.
15
The specific legal provision invoked for the authority of the regional
offices to take cognizance of the subject matter involved in these cases is
paragraph 25 of Article VI of Reorganization Plan No. 20-A, which is
hereunder quoted:
25 Each regional office shall have original and exclusive jurisdiction over
all cases falling under the Workmen's Compensation law, and cases
affecting all money claims arising from violations of labor standards on
working conditions including but not restrictive to: unpaid wages,
underpayment, overtime, separation pay and maternity leave of employees
and laborers; and unpaid wages, overtime, separation pay, vacation pay and
payment for medical services of domestic help.
Under this provision, the regional offices have been given original and
exclusive jurisdiction over:
(a) all cases falling under the Workmen's Compensation law;
(b) all cases affecting money claims arising from violations of labor
standards on working conditions, unpaid wages, underpayment, overtime,
separation pay and maternity leave of employees and laborers; and .
(c) all cases for unpaid wages, overtime, separation pay, vacation pay and
payment for medical services of domestic help.
Before the effectivity of Reorganization Plan No. 20-A, however, the
Department of Labor, except the Workmen's Compensation Commission
with respect to claims for compensation under the Workmen's
Compensation law, had no compulsory power to settle cases under (b) and
(c) above, the only authority it had being to mediate merely or arbitrate
when the parties so agree in writing, In case of refusal by a party to submit
to such settlement, the remedy is to file a complaint in the proper court.1
It is evident, therefore, that the jurisdiction to take cognizance of cases
affecting money claims such as those sought to be enforced in these
proceedings, is a new conferment of power to the Department of Labor not
theretofore exercised by it. The question thus presented by these cases is
whether this is valid under our Constitution and applicable statutes.
It is true that in Republic Act No. 1241, amending Section 4 of Republic
Act 997, which created the Government Survey and Reorganization
Commission, the latter was empowered —
(2) To abolish departments, offices, agencies, or functions which may not
be necessary, or create those which way be necessary for the efficient
conduct of the government service, activities, and functions. (Emphasis
supplied.)
But these "functions" which could thus be created, obviously refer merely
to administrative, not judicial functions. For the Government Survey and
Reorganization Commission was created to carry out the reorganization of
the Executive Branch of the National Government (See Section 3 of R.A.
No. 997, as amended by R.A. No. 1241), which plainly did not include the
creation of courts. And the Constitution expressly provides that "the
Judicial power shall be vested in one Supreme Court and in such inferior
courts as may be established by law.(Sec. 1, Art. VII of the Constitution).
Thus, judicial power rests exclusively in the judiciary. It may be conceded
that the legislature may confer on administrative boards or bodies
quasi-judicial powers involving the exercise of judgment and discretion, as
incident to the performance of administrative functions. 2 But in so doing,
the legislature must state its intention in express terms that would leave no
doubt, as even such quasi-judicial prerogatives must be limited, if they are

to be valid, only to those incidental to or in connection with the
performance of jurisdiction over a matter exclusively vested in the courts.3
If a statute itself actually passed by the Congress must be clear in its terms
when clothing administrative bodies with quasi-judicial functions, then
certainly such conferment can not be implied from a mere grant of power to
a body such as the Government Survey and Reorganization Commission to
create "functions" in connection with the reorganization of the Executive
Branch of the Government.
And so we held in Corominas et al. v. Labor Standards Commission, et al.
(G.R. No. L-14837 and companion cases, June 30, 1961);
. . . it was not the intention of Congress, in enacting Republic Act No. 997,
to authorize the transfer of powers and jurisdiction granted to the courts of
justice, from these to the officials to be appointed or offices to be created
by the Reorganization Plan. Congress is well aware of the provisions of the
Constitution that judicial powers are vested 'only in the Supreme Court and
in such courts as the law may establish'. The Commission was not
authorized to create courts of justice, or to take away from these their
jurisdiction and transfer said jurisdiction to the officials appointed or
offices created under the Reorganization Plan. The Legislature could not
have intended to grant such powers to the Reorganization Commission, an
executive body, as the Legislature may not and cannot delegate its power
to legislate or create courts of justice any other agency of the Government.
(Chinese Flour Importers Assoc. vs. Price Stabilization Board, G.R. No.
L-4465, July 12, 1951; Surigao Consolidated vs. Collector of Internal
Revenue G.R. No. L-5692, March 5, 1954; U.S. vs. Shreveport, 287 U.S.
77, 77 L. ed 175, and Johnson vs. San Diego, 42 P. 249, cited in 11 Am. Jur
921-922.) (Emphasis supplied.)
But it is urged, in one of the cases, that the defect in the conferment of
judicial or quasi-judicial functions to the Regional offices, emanating from
the lack of authority of the Reorganization Commission has been cured by
the non-disapproval of Reorganization Plan No. 20-A by Congress under
the provisions of Section 6(a) of Republic Act No. 997, as amended. It is,
in effect, argued that Reorganization Plan No. 20-A is not merely the
creation of the Reorganization Commission, exercising its delegated
powers, but is in fact an act of Congress itself, a regular statute directly and
duly passed by Congress in the exercise of its legislative powers in the
mode provided in the enabling act.
The pertinent provision of Republic Act No. 997, as amended, invoked in
favor of this argument reads as follows:
SEC. 6 (a) The provisions of the reorganization plan or plans submitted by
the President during the Second Session of the Third Congress shall be
deemed approved after the adjournment of the said session, and those of the
plan or plans or modifications of any plan or plans to be submitted after the
adjournment of the Second Session, shall be deemed approved after the
expiration of the seventy session days of the Congress following the date
on which the plan is transmitted to it, unless between the date of transmittal
and the expiration of such period, either House by simple resolution
disapproves the reorganization plan or any, modification thereof. The said
plan of reorganization or any modification thereof may, likewise, be
approved by Congress in a concurrent Resolution within such period.
It is an established fact that the Reorganization Commission submitted
Reorganization Plan No. 20-A to the President who, in turn, transmitted the
same to Congress on February 14, 1956. Congress adjourned its sessions
without passing a resolution disapproving or adopting the said
reorganization plan. It is now contended that, independent of the matter of
delegation of legislative authority (discussed earlier in this opinion), said
16
plan, nevertheless became a law by non-action on the part of Congress,
pursuant to the above-quoted provision.
Such a procedure of enactment of law by legislative in action is not
countenanced in this jurisdiction. By specific provision of the Constitution
—
No bill shall be passed or become a law unless it shall have been printed
and copies thereof in its final form furnished the Members at least three
calendar clays prior to its passage by the National Assembly (Congress),
except when the President shall have certified to the necessity of its
immediate enactment. Upon the last reading of a bill no amendment thereof
shall be allowed, and the question upon its final passage shall be taken
immediately thereafter, and the yeas and nays entered on the Journal. (Sec.
21-[a], Art. VI).
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, but if
not, he shall return it with his objections to the House where it originated,
which shall enter the objections at large on 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 voting for and against
shall be entered on its journal. If any bill shall not be returned by the
President as herein provided within twenty days (Sundays excepted) after it
shall have been presented to him, the same shall become a law in like
manner as if he has signed it, unless the Congress by adjournment prevent
its return, in which case it shall become a law unless vetoed by the
President within thirty days after adjournment. (Sec. 20[1]. Art. VI of the
Constitution).
A comparison between the procedure of enactment provided in section 6 (a)
of the Reorganization Act and that prescribed by the Constitution will show
that the former is in distinct contrast to the latter. Under the first, consent or
approval is to be manifested by silence or adjournment or by "concurrent
resolution." In either case, the contemplated procedure violates the
constitutional provisions requiring positive and separate action by each
House of Congress. It is contrary to the "settled and well-understood
parliamentary law (which requires that the) two houses are to hold separate
sessions for their deliberations, and the determination of the one upon a
proposed law is to be submitted to the separate determination of the other,"
(Cooley, Constitutional Limitations, 7th ed., p. 187).
Furthermore, Section 6 (a) of the Act would dispense with the "passage" of
any measure, as that word is commonly used and understood, and with the
requirement presentation to the President. In a sense, the section, if given
the effect suggested in counsel's argument, would be a reversal of the
democratic processes required by the Constitution, for under it, the
President would propose the legislative action by action taken by Congress.
Such a procedure would constitute a very dangerous precedent opening the
way, if Congress is so disposed, because of weakness or indifference, to
eventual abdication of its legislative prerogatives to the Executive who,
under our Constitution, is already one of the strongest among constitutional
heads of state. To sanction such a procedure will be to strike at the very
root of the tri-departmental scheme four democracy.
Even in the United States (in whose Federal Constitution there is no
counterpart to the specific method of passaging laws prescribed in Section
21[2] of our Constitution) and in England (under whose parliamentary
system the Prime Minister, real head of the Government, is a member of
Parliament), the procedure outlined in Section 6(a) herein before quoted, is
but a technique adopted in the delegation of the rule-making power, to
preserve the control of the legislature and its share in the responsibility for

the adoption of proposed regulations.4 The procedure has ever been
intended or utilized or interpreted as another mode of passing or enacting
any law or measure by the legislature, as seems to be the impression
expressed in one these cases.
On the basis of the foregoing considerations, we hold ad declare that
Reorganization Plan No. 20-A, insofar as confers judicial power to the
Regional Offices over cases other than these falling under the Workmen's
Compensation on Law, is invalid and of no effect.
This ruling does not affect the resolution of this Court in the case
of National Steel & Shipyards Corporation v. Arca et al., G.R. No.
L-12249, dated May 6, 1957, considering that the said case refers to a
claim before the Workmen's Compensation Commission, which exercised
quasi-judicial powers even before the reorganization of the Department of
Labor.
WHEREFORE
(a) The decision of the Court of First Instance of Baguio involved in case
G.R. No. L-15138 is hereby affirmed, without costs;
(b) The decision of the Court of First Instance of Manila questioned in case
G.R. No. L-16781 is hereby affirmed, without costs;
(c) The order of dismissal issued by the Court of First Instance of Cebu
appealed from in case G.R. No. L-15377 is set aside and the case remanded
to the court of origin for further proceedings, without costs;
(d) In case G.R. No. L-16660, the decision of the Court of First Instance of
Isabela, directing the Regional Labor Administrator to issue a writ of
execution of the order of the Regional Office No. 2, is hereby reversed,
without costs; and .
(e) In case G.R. No. L-17056, the decision rendered after hearing by the
Court of First Instance of Manila, dismissing the complaint for annulment
of the proceedings before the Regional office No. 3, is hereby reversed and
the preliminary injunction at first issued by the trial court is revived and
made permanents without costs. SO ORDERED.
Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Dizon, De Leon and
Natividad, JJ., concur.
Bautista Angelo, J., on leave, took no part.
Concepcion and Paredes JJ., took no part.
C. Effectivity of laws
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the
President, HON. JOAQUIN VENUS, in his capacity as Deputy
Executive Assistant to the President , MELQUIADES P. DE LA CRUZ,
in his capacity as Director, Malacañang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.
17
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a
right recognized in Section 6, Article IV of the 1973 Philippine
Constitution, 1 as well as the principle that laws to be valid and enforceable
must be published in the Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus to compel respondent
public officials to publish, and/or cause the publication in the Official
Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and
administrative orders.
Specifically, the publication of the following presidential issuances is
sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197,
200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360,
361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521,
528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800,
802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143,
1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810,
1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141,
150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209,
211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269,
271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315,
325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397,
405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587,
594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713,
726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281,
1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588,
1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695,
1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752,
1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807,
1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840,
1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966,
1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492,
494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549,
551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647,
649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59,
76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433,
436-439.
The respondents, through the Solicitor General, would have this case
dismissed outright on the ground that petitioners have no legal personality
or standing to bring the instant petition. The view is submitted that in the
absence of any showing that petitioners are personally and directly affected
or prejudiced by the alleged non-publication of the presidential issuances in
question 2 said petitioners are without the requisite legal personality to
institute this mandamus proceeding, they are not being "aggrieved parties"

within the meaning of Section 3, Rule 65 of the Rules of Court, which we
quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or
person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use a rd enjoyment of a right or
office to which such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do the act
required to be done to Protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the
defendant.
Upon the other hand, petitioners maintain that since the subject of the
petition concerns a public right and its object is to compel the performance
of a public duty, they need not show any specific interest for their petition
to be given due course.
The issue posed is not one of first impression. As early as the 1910 case
of Severino vs. Governor General, 3 this Court held that while the general
rule is that "a writ of mandamus would be granted to a private individual
only in those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that
which he holds with the public at large," and "it is for the public officers
exclusively to apply for the writ when public rights are to be subserved
[Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question
is one of public right and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted
need not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the execution
of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a
private individual, as a proper party to the mandamus proceedings brought
to compel the Governor General to call a special election for the position of
municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the
proposition that the relator is a proper party to proceedings of this character
when a public right is sought to be enforced. If the general rule in America
were otherwise, we think that it would not be applicable to the case at bar
for the reason 'that it is always dangerous to apply a general rule to a
particular case without keeping in mind the reason for the rule, because, if
under the particular circumstances the reason for the rule does not exist, the
rule itself is not applicable and reliance upon the rule may well lead to
error'
No reason exists in the case at bar for applying the general rule insisted
upon by counsel for the respondent. The circumstances which surround this
case are different from those in the United States, inasmuch as if the relator
is not a proper party to these proceedings no other person could be, as we
have seen that it is not the duty of the law officer of the Government to
appear and represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal
personality in the aforementioned case apply squarely to the present
petition. Clearly, the right sought to be enforced by petitioners herein is a
public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be
18
difficult to conceive of any other person to initiate the same, considering
that the Solicitor General, the government officer generally empowered to
represent the people, has entered his appearance for respondents in this
case.
Respondents further contend that publication in the Official Gazette is not a
sine qua non requirement for the effectivity of laws where the laws
themselves provide for their own effectivity dates. It is thus submitted that
since the presidential issuances in question contain special provisions as to
the date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article
2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's
construction of said article. In a long line of decisions, 4 this Court has ruled
that publication in the Official Gazette is necessary in those cases where
the legislation itself does not provide for its effectivity date-for then the
date of publication is material for determining its date of effectivity, which
is the fifteenth day following its publication-but not when the law itself
provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it
equates the effectivity of laws with the fact of publication. Considered in
the light of other statutes applicable to the issue at hand, the conclusion is
easily reached that said Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law itself provides for the
date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides
as follows:
Section 1. There shall be published in the Official Gazette [1] all important
legisiative acts and resolutions of a public nature of the, Congress of the
Philippines; [2] all executive and administrative orders and proclamations,
except such as have no general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of Appeals as may be
deemed by said courts of sufficient importance to be so published; [4] such
documents or classes of documents as may be required so to be published
by law; and [5] such documents or classes of documents as the President of
the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be
published. ...
The clear object of the above-quoted provision is to give the general public
adequate notice of the various laws which are to regulate their actions and
conduct as citizens. Without such notice and publication, there would be no
basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for
the transgression of a law of which he had no notice whatsoever, not even a
constructive one.
Perhaps at no time since the establishment of the Philippine Republic has
the publication of laws taken so vital significance that at this time when the
people have bestowed upon the President a power heretofore enjoyed
solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa—and for
the diligent ones, ready access to the legislative records—no such publicity
accompanies the law-making process of the President. Thus, without
publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of
informing themselves of the specific contents and texts of such decrees. As
the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes,
se comprenden tambien los reglamentos, Reales decretos, Instrucciones,

Circulares y Reales ordines dictadas de conformidad con las mismas por el
Gobierno en uso de su potestad.5
The very first clause of Section I of Commonwealth Act 638 reads: "There
shall be published in the Official Gazette ... ." The word "shall" used
therein imposes upon respondent officials an imperative duty. That duty
must be enforced if the Constitutional right of the people to be informed on
matters of public concern is to be given substance and reality. The law
itself makes a list of what should be published in the Official Gazette. Such
listing, to our mind, leaves respondents with no discretion whatsoever as to
what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of
general applicability" is mandated by law. Obviously, presidential decrees
that provide for fines, forfeitures or penalties for their violation or
otherwise impose a burden or. the people, such as tax and revenue
measures, fall within this category. Other presidential issuances which
apply only to particular persons or class of persons such as administrative
and executive orders need not be published on the assumption that they
have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a
public nature" or "of general applicability" is a requirement of due process.
It is a rule of law that before a person may be bound by law, he must first
be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which
all form part of the law of the land, the requirement of due process and the
Rule of Law demand that the Official Gazette as the official government
repository promulgate and publish the texts of all such decrees, orders and
instructions so that the people may know where to obtain their official and
specific contents.
The Court therefore declares that presidential issuances of general
application, which have not been published, shall have no force and effect.
Some members of the Court, quite apprehensive about the possible
unsettling effect this decision might have on acts done in reliance of the
validity of those presidential decrees which were published only during the
pendency of this petition, have put the question as to whether the Court's
declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In
similar situations in the past this Court had taken the pragmatic and
realistic course set forth in Chicot County Drainage District vs. Baxter
Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress,
having been found to be unconstitutional, was not a law; that it was
inoperative, conferring no rights and imposing no duties, and hence
affording no basis for the challenged decree. Norton v. Shelby County, 118
U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is
quite clear, however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with qualifications. The
actual existence of a statute, prior to such a determination, is an operative
fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in various
aspects-with respect to particular conduct, private and official. Questions of
rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the
light of the nature both of the statute and of its previous application,
demand examination. These questions are among the most difficult of those
which have engaged the attention of courts, state and federal and it is
19
manifest from numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs.
Esteban 9 sustained the right of a party under the Moratorium Law, albeit
said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to
their publication in the Official Gazette is "an operative fact which may
have consequences which cannot be justly ignored. The past cannot always
be erased by a new judicial declaration ... that an all-inclusive statement of
a principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears
that of the presidential decrees sought by petitioners to be published in the
Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive,
1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither
the subject matters nor the texts of these PDs can be ascertained since no
copies thereof are available. But whatever their subject matter may be, it is
undisputed that none of these unpublished PDs has ever been implemented
or enforced by the government. In Pesigan vs. Angeles, 11 the Court,
through Justice Ramon Aquino, ruled that "publication is necessary to
apprise the public of the contents of [penal] regulations and make the said
penalties binding on the persons affected thereby. " The cogency of this
holding is apparently recognized by respondent officials considering the
manifestation in their comment that "the government, as a matter of policy,
refrains from prosecuting violations of criminal laws until the same shall
have been published in the Official Gazette or in some other publication,
even though some criminal laws provide that they shall take effect
immediately.
WHEREFORE, the Court hereby orders respondents to publish in the
Official Gazette all unpublished presidential issuances which are of general
application, and unless so published, they shall have no binding force and
effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
EXECUTIVE ORDER NO. 200 June 18, 1987
PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN
THE OFFICIAL GAZETTE OR IN A NEWSPAPER OF GENERAL
CIRCULATION IN THE PHILIPPINES AS A REQUIREMENT FOR
THEIR EFFECTIVITY
WHEREAS, Article 2 of the Civil Code partly provides that "laws shall
take effect after fifteen days following the completion of their publication
in the Official Gazette, unless it is otherwise provided . . .;"
WHEREAS, the requirement that for laws to be effective only a publication
thereof in the Official Gazette will suffice has entailed some problems, a
point recognized by the Supreme Court in Tañada. et al. vs. Tuvera, et al.
(G.R. No. 63915, December 29, 1986) when it observed that "[t]here is
much to be said of the view that the publication need not be made in the
Official Gazette, considering its erratic release and limited readership";

WHEREAS, it was likewise observed that "[u]ndoubtedly, newspapers of
general circulation could better perform the function of communicating the
laws to the people as such periodicals are more easily available, have a
wider readership, and come out regularly"; and
WHEREAS, in view of the foregoing premises Article 2 of the Civil Code
should accordingly be amended so the laws to be effective must be
published either in the Official Gazette or in a newspaper of general
circulation in the country;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the
Philippines, by virtue of the powers vested in me by the Constitution, do
hereby order:
Sec. 1. Laws shall take effect after fifteen days following the completion of
their publication either in the Official Gazette or in a newspaper of general
circulation in the Philippines, unless it is otherwise provided.
Sec. 2. Article 2 of Republic Act No. 386, otherwise known as the "Civil
Code of the Philippines," and all other laws inconsistent with this
Executive Order are hereby repealed or modified accordingly.
Sec. 3. This Executive Order shall take effect immediately after its
publication in the Official Gazette.
Done in the City of Manila, this 18th day of June, in the year of Our Lord,
nineteen hundred and eighty-seven.
D. Question Hour
E. Legislative Investigation
G.R. No. L-3820 July 18, 1950
JEAN L. ARNAULT, petitioner,
vs.
LEON NAZARENO, Sergeant-at-arms, Philippine Senate, and
EUSTAQUIO BALAGTAS, Director of Prisons,respondents.
J.C. Orendain, Augusto Revilla, and Eduardo Arboleda for petitioner.
Office of the Solicitor General Felix Bautista Angelo, Lorenzo Sumulong,
Lorenzo Tañada, and Vicente J. Francisco for respondents.
OZAETA, J.:
This is an original petition for habeas corpus to relieve the petitioner from
his confinement in the New Bilibid Prison to which he has been committed
by virtue of a resolution adopted by the Senate on May 15, 1950, which
reads as follows:
Whereas, Jean L. Arnault refused to reveal the name of the person to whom
he gave the P440,000, as well as answer other pertinent questions related to
the said amount; Now, therefore, be it.
Resolved, that for his refusal to reveal the name of the person to whom he
gave the P440,000 Jean L. Arnault be committed to the custody of the
Sergeant-at-Arms and imprisoned in the New Bilibid Prison, Muntinlupa,
Rizal, until discharged by further order of the Senate or by the special
committee created by Senate Resolution No. 8, such discharge to be
ordered when he shall have purged the contempt by revealing to the Senate
or to the said special committee the name of the person to whom he gave
20
the P440,000, as well as answer other pertinent questions in connection
therewith.
The facts that gave rise to the adoption of said resolution, insofar as
pertinent here, may be briefly stated as follows:
In the latter part of October, 1949, the Philippine Government, through the
Rural Progress Administration, bought two estates known as Buenavista
and Tambobong for the sums of P4,500,000 and P500,000, respectively. Of
the first sum, P1,000,000 was paid to Ernest H. Burt, a nonresident
American, thru his attorney-in-fact in the Philippines, the Associated
Estates, Inc., represented by Jean L. Arnault, for alleged interest of the said
Burt in the Buenavista Estate. The second sum of P500,000 was all paid to
the same Ernest H. Burt through his other attorney-in-fact, the North
Manila Development Co., Inc., also represented by Jean L. Arnault, for the
alleged interest of the said Burt in the Tambobong Estate.
The original owner of the Buenavista Estate was the San Juan de Dios
Hospital. The Philippine Government held a 25-year lease contract on said
estate, with an option to purchase it for P3,000,000 within the same period
of 25 years counted from January 1, 1939. The occupation Republic of the
Philippines purported to exercise that option by tendering to the owner the
sum of P3,000,000 and, upon its rejection, by depositing it in court on June
21, 1944, together with the accrued rentals amounting to P3224,000. Since
1939 the Government has remained in possession of the estate.
On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista Estate
for P5,000,000 to Ernest H. Burt, who made a down payment of P10,000
only and agreed to pay P5000,000 within one year and the remainder in
annual installments of P500,000 each, with the stipulation that failure on
his part to make any of said payments would cause the forfeiture of his
down payment of P10,000 and would entitle the Hospital to rescind to sale
to him. Aside from the down payment of P10,000, Burt has made no other
payment on account of the purchase price of said estate.
The original owner of the Tambobong Estate was the Philippine Trust
Company. On May 14, 1946, the Philippine Trust Company sold estate for
the sum of P1,200,000 to Ernest H. Burt, who paid P10,000 down and
promise to pay P90,000 within nine months and the balance of P1,100,000
in ten successive installments of P110,000 each. The nine-month period
within which to pay the first installment of P90,000 expired on February 14,
1947, without Burt's having paid the said or any other amount then or
afterwards. On September 4, 1947, the Philippine Trust Company sold,
conveyed, and delivered the Tambobong Estate to the Rural Progress
Administration by an absolute deed of sale in consideration of the sum of
P750,000. On February 5, 1948, the Rural Progress Administration made,
under article 1504 of the Civil Code, a notarial demand upon Burt for the
resolution and cancellation of his contract of purchase with the Philippine
Trust Company due to his failure to pay the installment of P90,000 within
the period of nine months. Subsequently the Court of First Instance of Rizal
ordered the cancellation of Burt's certificate of title and the issuance of a
new one in the name of the Rural Progress Administration, from which
order he appealed to the Supreme Court.1
It was in the face of the antecedents sketched in the last three preceding
paragraphs that the Philippine Government, through the Secretary of
Justice as Chairman of the Board of Directors of the Rural Progress
Administration and as Chairman of the Board of Directors of the Philippine
National Bank, from which the money was borrowed, accomplished the
purchase of the two estates in the latter part of October, 1949, as stated at
the outset.
On February 27, 1950, the Senate adopted its Resolution No. 8, which
reads as follows:

RESOLUTION CREATING A SPECIAL COMMITTEE TO
INVESTIGATE THE BUENAVISTA AND THE TAMBOBONG
ESTATES DEAL.
WHEREAS, it is reported that the Philippine government, through the
Rural Progress Administration, has bought the Buenavista and the
Tambobong Estates for the aggregate sum of five million pesos;
WHEREAS, it is reported that under the decision of the Supreme Court
dated October 31, 1949, the Buenavista Estate could have been bought for
three million pesos by virtue of a contract entered into between the San
Juan de Dios Hospital and Philippine Government in 1939;
WHEREAS, it is even alleged that the Philippine Government did not have
to purchase the Buenavista Estate because the occupation government had
made tender of payment in the amount of three million pesos, Japanese
currency, which fact is believed sufficient to vest title of Ownership in the
Republic of the Philippines pursuant to decisions of the Supreme Court
sustaining the validity of payments made in Japanese military notes during
the occupation;
WHEREAS, it is reported that the Philippine Government did not have to
pay a single centavo for the Tambobong Estate as it was already practically
owned by virtue of a deed of sale from the Philippine Trust Company dated
September 3, 194, for seven hundred and fifty thousand pesos, and by
virtue of the recission of the contract through which Ernest H. Burt had an
interest in the estate; Now, therefore, be it.
RESOLVED, That a Special Committee, be, as it hereby is, created,
composed of five members to be appointed by the President of the Senate
to investigate the Buenavista and Tambobong Estate deals. It shall be the
duty of the said Committee to determine whether the said purchase was
honest, valid, and proper and whether the price involved in the deal was
fair and just, the parties responsible therefor, and any other facts the
Committee may deem proper in the premises. Said Committee shall have
the power to conduct public hearings; issue subpoena or subpoena duces
tecum to compel the attendance of witnesses or the production of
documents before it; and may require any official or employee of any
bureau, office, branch, subdivision, agency, or instrumentality of the
Government to assist or otherwise cooperate with the Special Committee in
the performance of its functions and duties. Said Committee shall submit
its report of findings and recommendations within two weeks from the
adoption of this Resolution.
The special committee created by the above resolution called and examined
various witnesses, among the most important of whom was the herein
petitioner, Jean L. Arnault. An intriguing question which the committee
sought to resolve was that involved in the apparent unnecessariness and
irregularity of the Government's paying to Burt the total sum of P1,500,000
for his alleged interest of only P20,000 in the two estates, which he seemed
to have forfeited anyway long before October, 1949. The committee sought
to determine who were responsible for and who benefited from the
transaction at the expense of the Government.
Arnault testified that two checks payable to Burt aggregating P1,500,000
were delivered to him on the afternoon of October 29, 1949; that on the
same date he opened a new account in the name of Ernest H. Burt with the
Philippine National Bank in which he deposited the two checks aggregating
P1,500,000; and that on the same occasion he draw on said account two
checks; one for P500,000, which he transferred to the account of the
Associated Agencies, Inc., with the Philippine National Bank, and another
for P440,000 payable to cash, which he himself cashed. It was the desire of
the committee to determine the ultimate recipient of this sum of P440,000
that gave rise to the present case.
21
At first the petitioner claimed before the Committee:
Mr. ARNAULT (reading from a note). Mr. Chairman, for questions
involving the disposition of funds, I take the position that the transactions
were legal, that no laws were being violated, and that all requisites had
been complied with. Here also I acted in a purely functional capacity of
representative. I beg to be excused from making answer which might later
be used against me. I have been assured that it is my constitutional right to
refuse to incriminate myself, and I am certain that the Honorable Members
of this Committee, who, I understand, are lawyers, will see the justness of
my position.
At as subsequent session of the committee (March 16) Senator De Vera, a
member of the committee, interrogated him as follows:
Senator DE VERA. Now these transactions, according to your own
typewritten statement, were legal?
Mr. ARNAULT. I believe so.
Senator DE VERA. And the disposition of that fund involved, according to
your own statement, did not violate any law?
Mr. ARNAULT. I believe so.
xxx xxx xxx
Senator DE VERA. So that if the funds were disposed of in such a manner
that no laws were violated, how is it that when you were asked by the
Committee to tell what steps you took to have this money delivered to Burt,
you refused to answer the questions, saying that it would incriminate you?
Mr. ARNAULT. Because it violates the rights of a citizen to privacy in his
dealings with other people.
xxx xxx xxx
Senator DE VERA. Are you afraid to state how the money was disposed of
because you would be incriminated, or you would be incriminating
somebody?
Mr. ARNAULT. I am not afraid; I simply stand on the privilege to dispose
of the money that has been paid to me as a result of a legal transaction
without having to account for any use of it.
But when in the same session the chairman of the committee, Senator
Sumulong, interrogated the petitioner, the latter testified as follows:
The CHAIRMAN. The other check of P440,000 which you also made on
October 29, 1949, is payable to cash; and upon cashing this P440,000 on
October 29, 1949, what did you do with that amount?
Mr. ARNAULT. I turned it over to a certain person.
The CHAIRMAN. The whole amount of P440,000?
Mr. ARNAULT. Yes.
The CHAIRMAN. Who was that certain person to whom you delivered
these P440,000 which you cashed on October 29, 1949?
 22

Mr. ARNAULT. I don't remember the name; he was a representative of Mr. ARNAULT. Long time ago.
Burt.
The CHAIRMAN. In what year did Burt give you that verbal instruction;
The CHAIRMAN. That representative of Burt to whom you delivered the when Burt was still here in the Philippines?
P440,000 was a Filipino?
Mr. ARNAULT. Yes.
Mr. ARNAULT. I don't know.
The CHAIRMAN. But at that time Burt already knew that he would
The CHAIRMAN. You do not remember the name of that representative of receive the money?
Burt to whom you delivered this big amount of P440,000?
Mr. ARNAULT. No.
Mr. ARNAULT. I am not sure; I do not remember the name.
The CHAIRMAN. In what year was that when Burt while he was here in
The CHAIRMAN. That certain person who represented Burt to whom you the Philippines gave you the verbal instruction?
delivered the big amount on October 29, 1949, gave you a receipt for the
amount? Mr. ARNAULT. In 1946.

Mr. ARNAULT. No. The CHAIRMAN. And what has that certain person done for Burt to merit
receiving these P440,000?
The CHAIRMAN. Neither did you ask a receipt?
Mr. ARNAULT. I absolutely do not know.
Mr. ARNAULT. I didn't ask.
The CHAIRMAN. You do not know?
The CHAIRMAN. And why did you give that certain person,
representative of Burt, this big amount of P440,000 which forms part of the Mr. ARNAULT. I do not know.
P1-½ million paid to Burt?

The CHAIRMAN. Burt did not tell you when he gave you the verbal
Mr. ARNAULT. Because I have instructions to that effect. instruction why that certain person should receive these P440,000?

The CHAIRMAN. Who gave you the instruction? Mr. ARNAULT. He did not tell me.

Mr. ARNAULT. Burt. The CHAIRMAN. And Burt also authorized you to give this big amount to
that certain person without receipt?
The CHAIRMAN. Where is the instruction; was that in writing?
Mr. ARNAULT. He told me that a certain person would represent him and
Mr. ARNAULT. No. where could I meet him.

The CHAIRMAN. By cable? The CHAIRMAN. Did Burt know already that certain person as early as
1946?
Mr. ARNAULT. No.
Mr. ARNAULT. I presume much before that.
The CHAIRMAN. In what form did you receive that instruction?
The CHAIRMAN. Did that certain person have any intervention in the
Mr. ARNAULT. Verbal instruction. prosecution of the two cases involving the Buenavista and Tambobong
estates?

The CHAIRMAN. When did you receive this verbal instruction from Burt
to deliver these P440,000 to a certain person whose name you do not like to Mr. ARNAULT. Not that I know of.
reveal?
The CHAIRMAN. Is that certain person related to any high government
Mr. ARNAULT. I have instruction to comply with the request of the official?
person.
Mr. ARNAULT. No, I do not know.
The CHAIRMAN. Now, you said that instruction given to you by Burt was
verbal? The CHAIRMAN. Why can you not tell us the name of that certain person?

Mr. ARNAULT. Yes. Mr. ARNAULT. Because I am not sure of his name; I cannot remember the
name.
The CHAIRMAN. When was that instruction given to you by Burt?

The CHAIRMAN. When gave that certain person that P440,000 on
October 29, 1949, you knew already that person?
Mr. ARNAULT. Yes, I have seen him several times.
The CHAIRMAN. And the name of that certain person is a Filipino name?
Mr. ARNAULT. I would say Spanish name.
The CHAIRMAN. And how about his Christian name; is it also a Spanish
name?
Mr. ARNAULT. I am not sure; I think the initial is J.
The CHAIRMAN. Did he have a middle name?
Mr. ARNAULT. I never knew it.
The CHAIRMAN. And how about his family name which according to
your recollection is Spanish; can you remember the first letter with which
that family name begins?
Mr. ARNAULT. S, D or F.
The CHAIRMAN. And what was the last letter of the family name?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Have you seen that person again after you have
delivered this P440,000?
Mr. ARNAULT. Yes.
The CHAIRMAN. Several times?
Mr. ARNAULT. Two or three times.
The CHAIRMAN. Here in Manila?
Mr. ARNAULT. Yes.
The CHAIRMAN. And in spite of the fact that you met that person two or
three times, you never were able to find out what was his name?
Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta
knows my name; of course, we have not done business. Lots of people in
Manila know me, but they don't know my name, and I don't know them.
They sa{ I am "chiflado" because I don't know their names.
The CHAIRMAN. That certain person is a male or female?
Mr. ARNAULT. He is a male.
The CHAIRMAN. You are sure that he is a male at least?
Mr. ARNAULT. Let us say 38 or 40 years, more or less.
23
The CHAIRMAN. Can you give us, more or less, a description of that
certain person? What is his complexion: light, dark or light brown?
Mr. ARNAULT. He is like the gentleman there (pointing to Senator Cabili),
but smaller. He walks very straight, with military bearing.
The CHAIRMAN. Do you know the residence of that certain person to
whom you gave the P440,000?
Mr. ARNAULT. No.
The CHAIRMAN. During these frequent times that you met that certain
person, you never came to know his residence?
Mr. ARNAULT. No, because he was coming to the office.
The CHAIRMAN. How tall is that certain person?
Mr. ARNAULT. Between 5-2 and 5-6.
On May 15, 1950, the petitioner was haled before the bar of the Senate,
which approved and read to him the following resolution:
Be it resolved by the Senate of the Philippines in Session assembled:
That Jean L. Arnault, now at the bar of the Senate, be arraigned for
contempt consisting of contumacious acts committed by him during the
investigation conducted by the Special Committee created by Senate
Resolution No. 8 to probe the Tambobong and Buenavista estates deal of
October 21, 1949, and that the President of the Senate propounded to him
the following interrogatories:
1. What excuse have you for persistently refusing to reveal the name of the
person to whom you gave the P440,000 on October 29, 1949, a person
whose name it is impossible for you not to remember not only because of
the big amount of money you gave to him without receipt, but also by your
own statements you knew him as early as 1946 when General Ernest H.
Burt was still in the Philippines, you made two other deliveries of money to
him without receipt, and the last time you saw him was in December 1949?
Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written
answer alleging that the questions were incriminatory in nature and
begging leave to be allowed to stand on his constitutional right not to be
compelled to be a witness against himself. Not satisfied with that written
answer Senator Sumulong, over the objection of counsel for the petitioner,
propounded to the latter the following question:
Sen. SUMULONG. During the investigation, when the Committee asked
you for the name of that person to whom you gave the P440,000, you said
that you can [could] not remember his name. That was the reason then for
refusing to reveal the name of the person. Now, in the answer that you have
just cited, you are refusing to reveal the name of that person to whom you
gave the P440,000 on the ground that your answer will be
self-incriminating. Now, do I understand from you that you are abandoning
your former claim that you cannot remember the name of that person, and
that your reason now for your refusal to reveal the name of that person is
that your answer might be self-incriminating? In other words, the question
is this: What is your real reason for refusing to reveal the name of that
person to whom you gave the P440,000: that you do not remember his
name or that your answer would be self-incriminating?

xxx xxx xxx
Mr. ORENDAIN. Mr. President, we are begging for the rules of procedure
that the accused should not be required to testify unless he so desires.
The PRESIDENT. It is the duty of the respondent to answer the question.
The question is very clear. It does not incriminate him.
xxx xxx xxx
Mr. ARNAULT. I stand by every statement that I have made before the
Senate Committee on the first, second, and third hearings to which I was
made in my letter to this Senate of May 2, 1950, in which I gave all the
reasons that were in my powers to give, as requested. I cannot change
anything in those statements that I made because they represent the best
that I can do , to the best of my ability.
The PRESIDENT. You are not answering the question. The answer has
nothing to do with the question.
Sen. SUMULONG. I would like to remind you , Mr. Arnault, that the
reason that you gave during the investigation for not revealing the name of
the person to whom you gave the P440,000 is not the same reason that you
are now alleging because during the investigation you told us: "I do not
remember his name." But, now, you are now saying: "My answer might
incriminate me." What is your real position?
Mr. ARNAULT. I have just stated that I stand by my statements that I
made at the first, second, and third hearings. I said that I wanted to be
excused from answering the question. I beg to be excused from making any
answer that might be incriminating in nature. However, in this answer, if
the detail of not remembering the name of the person has not been included,
it is an oversight.
Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple question:
Do you remember or not the name of the person to whom you gave the
P440,000?
Mr. ARNAULT. I do not remember .
Sen. SUMULONG. Now, if you do not remember the name of that person,
how can you say that your answer might be incriminating? If you do not
remember his name, you cannot answer the question; so how could your
answer be self-incriminating? What do you say to that?
Mr. ARNAULT. This is too complicated for me to explain. Please, I do not
see how to answer those questions. That is why I asked for a lawyer, so he
can help me. I have no means of knowing what the situation is about. I
have been in jail 13 days without communication with the outside. How
could I answer the question? I have no knowledge of legal procedure or
rule, of which I am completely ignorant.
xxx xxx xxx
Sen. SUMULONG. Mr. President, I ask that the question be answered.
The PRESIDENT. The witness is ordered to answer the question. It is very
clear. It does not incriminate the witness.
xxx xxx xxx
24
Mr. ARNAULT. I do not remember. I stand on my constitutional rights. I
beg to be excused from making further answer, please.
Sen. SUMULONG. In that mimeographed letter that you sent addressed to
the President of the Senate, dated May 2, 1950, you stated there that you
cannot reveal the name of the person to whom you gave the P440,000
because if he is a public official you might render yourself liable for
prosecution for bribery, and that if he is a private individual you might
render yourself liable for prosecution for slander. Why did you make those
statements when you cannot even tell us whether that person to whom you
gave the P440,000 is a public official or a private individual ? We are
giving you this chance to convince the Senate that all these allegations of
yours that your answers might incriminate you are given by you honestly or
you are just trying to make a pretext for not revealing the information
desired by the Senate.
The PRESIDENT. You are ordered to answer the question.
Mr. ARNAULT. I do not even understand the question. (The question is
restated and explained.)
Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for me and
signed it. That is all I can say how I stand about this letter. I have no
knowledge myself enough to write such a letter, so I had to secure the help
of a lawyer to help me in my period of distress.
In that same session of the Senate before which the petitioner was called to
show cause why he should not be adjudged guilty of contempt of the
Senate, Senator Sumulong propounded to the petitioner questions tending
to elicit information from him as to the identity of the person to whom he
delivered the P440,000; but the petitioner refused to reveal it by saying that
he did not remember. The President of the Senate then propounded to him
various questions concerning his past activities dating as far back as when
witness was seven years of age and ending as recently as the post liberation
period, all of which questions the witness answered satisfactorily. In view
thereof, the President of the Senate also made an attempt to illicit the
desired information from the witness, as follows:
The PRESIDENT. Now I am convinced that you have a good memory.
Answer: Did you deliver the P440,000 as a gift, or of any consideration?
Mr. ARNAULT. I have said that I had instructions to deliver it to that
person, that is all.
The PRESIDENT. Was it the first time you saw that person?
Mr. ARNAULT. I saw him various times, I have already said.
The PRESIDENT. In spite of that, you do not have the least remembrance
of the name of that person?
Mr. ARNAULT. I cannot remember.
The PRESIDENT. How is it that you do not remember events that
happened a short time ago and, on the other hand, you remember events
that occurred during your childhood?
Mr. ARNAULT. I cannot explain.
The Senate then deliberated and adopted the resolution of May 15
hereinabove quoted whereby the petitioner was committed to the custody

of the Sergeant-at-Arms and imprisoned until "he shall have purged the
contempt by revealing to the Senate or to the aforesaid Special Committee
the name of the person to whom he gave the P440,000, as well as answer
other pertinent questions in connection therewith."
The Senate also adopted on the same date another resolution (No. 16) , to
wit:
That the Special Committee created by Senate Resolution No. 8 be
empowered and directed to continue its investigation of the Tambobong
and Buenavista Estates deal of October 21, 1949, more particularly to
continue the examination of Jean L. Arnault regarding the name of the
person to whom he gave the P440,000 and other matters related therewith.
The first session of the Second Congress was adjourned at midnight on
May 18, 1950.
The case was argued twice before us. We have given its earnest and
prolonged consideration because it is the first of its kind to arise since the
Constitution of the Republic of the Philippines was adopted. For the first
time this Court is called upon to define the power of either House of
Congress to punish a person not a member for contempt; and we are fully
conscious that our pronouncements here will set an important precedent for
the future guidance of all concerned.
Before discussing the specific issues raised by the parties, we deem it
necessary to lay down the general principles of law which form the
background of those issues.
Patterned after the American system, our Constitution vests the powers of
the Government in three independent but coordinate Departments —
Legislative, Executive, and Judicial. The legislative power is vested in the
Congress, which consists of the Senate and the House of Representatives.
(Section 1, Article VI.) Each house may determine the rules of its
proceedings, punish its Members for disorderly behavior, and, with the
concurrence of two-thirds of all its Members, expel a Member. (Section 10,
Article VI.) The judicial power is vested in the Supreme Court and in such
inferior courts as may be established by law. (Section 1, Article VIII.) Like
the Constitution of the United States, ours does not contain an express
provision empowering either of the two Houses of Congress to punish
nonmembers for contempt. It may also be noted that whereas in the United
States the legislative power is shared by and between the Congress of the
United States, on the one hand, and the respective legislatures of the
different States, on the other — the powers not delegated to the United
States by the Constitution nor prohibited by it to States being reserved to
the States, respectively, or to the people — in the Philippines, the
legislative power is vested in the Congress of the Philippines alone. It may
therefore be said that the Congress of the Philippines has a wider range of
legislative field than the Congress of the United States or any State
Legislature. Our form of Government being patterned after the American
system — the framers of our Constitution having drawn largely from
American institutions and practices — we can, in this case, properly draw
also from American precedents in interpreting analogous provisions of our
Constitution, as we have done in other cases in the past. Although there is
no provision in the Constitution expressly investing either House of
Congress with power to make investigations and exact testimony to the end
that it may exercise its legislative functions as to be implied. In other words,
the power of inquiry — with process to enforce it — is an essential and
appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to effect or change; and where
the legislative body does not itself possess the requisite information —
which is not infrequently true — recourse must be had to others who do
possess it. Experience has shown that mere requests for such information
25
are often unavailing, and also that information which is volunteered is not
always accurate or complete; so some means of compulsion is essential to
obtain what is needed. (McGrain vs.Daugherty, 273 U.S., 135; 71 L. ed.,
580; 50 A.L R., 1.) The fact that the Constitution expressly gives to
Congress the power to punish its Members for disorderly behavior, does
not by necessary implication exclude the power to punish for contempt any
other person. (Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed., 242.) But no
person can be punished for contumacy as a witness before either House,
unless his testimony is required in a matter into which that House has
jurisdiction to inquire. (Kilbourn vs. Thompson, 26 L. ed., 377.).
Since, as we have noted, the Congress of the Philippines has a wider range
of legislative field than either the Congress of the United States or a State
Legislature, we think it is correct to say that the field of inquiry into which
it may enter is also wider. It would be difficult to define any limits by
which the subject matter of its inquiry can be bounded. It is not necessary
to do so in this case. Suffice it to say that it must be coextensive with the
range of the legislative power.
In the present case the jurisdiction of the Senate, thru the Special
Committee created by it, to investigate the Buenavista and Tambobong
Estates deal is not challenged by the petitioner; and we entertain no doubt
as to the Senate's authority to do so and as to the validity of Resolution No.
8 hereinabove quoted. The transaction involved a questionable and
allegedly unnecessary and irregular expenditure of no less than P5,000,000
of public funds, of which Congress is the constitutional guardian. It also
involved government agencies created by Congress to regulate or even
abolish. As a result of the yet uncompleted investigation, the investigating
committee has recommended and the Senate approved three bills (1)
prohibiting the Secretary of Justice or any other department head from
discharging functions and exercising powers other than those attached to
his own office, without ]previous congressional authorization; (2)
prohibiting brothers and near relatives of any President of the Philippines
from intervening directly or indirectly and in whatever capacity in
transactions in which the Government is a party, more particularly where
the decision lies in the hands of executive or administrative officers who
are appointees of the President; and (3) providing that purchases of the
Rural Progress Administration of big landed estates at a price of P100,000
or more, shall not become effective without previous congressional
confirmation.2
We shall now consider and pass upon each of the questions raised by the
petitioner in support of his contention that his commitment is unlawful.
First He contends that the Senate has no power to punish him for contempt
for refusing to reveal the name of the person to whom he gave the
P440,000, because such information is immaterial to, and will not serve,
any intended or purported legislation and his refusal to answer the question
has not embarrassed, obstructed, or impeded the legislative process. It is
argued that since the investigating committee has already rendered its
report and has made all its recommendations as to what legislative
measures should be taken pursuant to its findings, there is no necessity to
force the petitioner to give the information desired other than that
mentioned in its report, to wit: "In justice to Judge Quirino and to Secretary
Nepomuceno, this atmosphere of suspicion that now pervades the public
mind must be dissipated, and it can only be done if appropriate steps are
taken by the Senate to compel Arnault to stop pretending that he cannot
remember the name of the person to whom he gave the P440,000 and
answer the questions which will definitely establish the identity of that
person . . ." Senator Sumulong, Chairman of the Committee, who appeared
and argued the case for the respondents, denied that that was the only
purpose of the Senate in seeking the information from the witness. He said
that the investigation had not been completed, because, due to the
contumacy of the witness, his committee had not yet determined the parties
responsible for the anomalous transaction as required by Resolution No. 8;

that, by Resolution No. 16, his committee was empowered and directed to
continue its investigation, more particularly to continue its examination of
the witness regarding the name of the person to whom he gave the
P440,000 and other matters related therewith; that the bills recommended
by his committee had not been approved by the House and might not be
approved pending the completion of the investigation; and that those bills
were not necessarily all the measures that Congress might deem it
necessary to pass after the investigation is finished.
Once an inquiry is admitted or established to be within the jurisdiction of a
legislative body to make, we think the investigating committee has the
power to require a witness to answer any question pertinent to that inquiry,
subject of course to his constitutional right against self-incrimination. The
inquiry, to be within the jurisdiction of the legislative body to make, must
be material or necessary to the exercise of a power in it vested by the
Constitution, such as to legislate, or to expel a Member; and every question
which the investigator is empowered to coerce a witness to answer must be
material or pertinent to the subject of the inquiry or investigation. So a
witness may not be coerced to answer a question that obviously has no
relation to the subject of the inquiry. But from this it does not follow that
every question that may be propounded to a witness must be material to
any proposed or possible legislation. In other words, the materiality of the
question must be determined by its direct relation to any proposed or
possible legislation. The reason is, that the necessity or lack of necessity for
legislative action and the form and character of the action itself are
determined by the sum total of the information to be gathered as a result of
the investigation, and not by a fraction of such information elicited from a
single question.
In this connection, it is suggested by counsel for the respondents that the
power of the Court is limited to determining whether the legislative body
has jurisdiction to institute the inquiry or investigation; that once that
jurisdiction is conceded, this Court cannot control the exercise of that
jurisdiction; and it is insinuated, that the ruling of the Senate on the
materiality of the question propounded to the witness is not subject to
review by this Court under the principle of the separation of powers. We
have to qualify this proposition. As was said by the Court of Appeals of
New York: "We are bound to presume that the action of the legislative
body was with a legitimate object if it is capable of being so construed, and
we have no right to assume that the contrary was intended." (People ex
rel.McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep., 49; 2 N.E., 615,
quoted with approval by the Supreme Court of the United States in the said
case of McGrain vs. Daugherty, it is necessary deduction from the decision
in Re Chapman, 41 L. ed., 1154, that where the questions are not pertinent
to the matter under inquiry a witness rightfully may refuse to answer. So
we are of the opinion that where the alleged immateriality of the
information sought by the legislative body from a witness is relied upon to
contest its jurisdiction, the court is in duty bound to pass upon the
contention. The fact that the legislative body has jurisdiction or the power
to make the inquiry would not preclude judicial intervention to correct a
clear abuse of discretion in the exercise of that power.
Applying the criterion laid down in the last two preceding paragraphs to the
resolution of the issue under consideration, we find that the question for the
refusal to answer which the petitioner was held in contempt by the Senate
is pertinent to the matter under inquiry. In fact, this is not and cannot be
disputed. Senate Resolution No. 8, the validity of which is not challenged
by the petitioner, requires the Special Committee, among other things, to
determine the parties responsible for the Buenavista and Tambobong
estates deal, and it is obvious that the name of the person to whom the
witness gave the P440,000 involved in said deal is pertinent to that
determination — it is in fact the very thing sought to be determined. The
contention is not that the question is impertinent to the subject of the
inquiry but that it has no relation or materiality to any proposed legislation.
We have already indicated that it is not necessary for the legislative body to
26
show that every question propounded to a witness is material to any
proposed or possible legislation; what is required is that is that it be
pertinent to the matter under inquiry.
It is said that the Senate has already approved the three bills recommended
by the Committee as a result of the uncompleted investigation and that
there is no need for it to know the name of the person to whom the witness
gave the P440,000. But aside from the fact that those bills have not yet
been approved by the lower house and by the President and that they may
be withdrawn or modified if after the inquiry is completed they should be
found unnecessary or inadequate, there is nothing to prevent the Congress
from approving other measures it may deem necessary after completing the
investigation. We are not called upon, nor is it within our province, to
determine or imagine what those measures may be. And our inability to do
so is no reason for overruling the question propounded by the Senate to the
witness.
The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in point here.
The inquiry there in question was conducted under a resolution of the
Senate and related to charges, published in the press, that senators were
yielding to corrupt influences in considering a tariff bill then before the
Senate and were speculating in stocks the value of which would be affected
by pending amendments to the bill. Chapman, a member of a firm of stock
brokers dealing in the stock of the American Sugar Refining Company,
appeared before the committee in response to a subpoena and asked, among
others, the following questions:
Had the firm, during the month of March, 1894, bought or sold any stock or
securities, known as sugar stocks, for or in the interest, directly or
indirectly, of any United Senate senator?
Was the said firm at that time carrying any sugar stock for the benefit of, or
in the interest, directly or indirectly, of any United Senate senator?
He refused to answer the questions and was prosecuted under an Act of
Congress for contempt of the Senate. Upon being convicted and sent to jail
he petitioned the Supreme Court of the United States for a writ of habeas
corpus. One of the questions decided by the Supreme Court of the United
States in that case was whether the committee had the right to compel the
witness to answer said questions, and the Court held that the committee did
have such right, saying:
The questions were undoubtedly pertinent to the subject-matter of the
inquiry. The resolution directed the committee to inquire whether any
senator has been, or is, speculating in what are known as sugar stocks
during the consideration of the tariff bill now before the Senate." What the
Senate might or might not do upon the facts when ascertained, we cannot
say, nor are we called upon to inquire whether such ventures might be
defensible, as contended in argument, but is plain that negative answers
would have cleared that body of what the Senate regarded as offensive
imputations, while affirmative answers might have led to further action on
the part of the Senate within its constitutional powers. (Emphasis supplied.)
It may be contended that the determination of the parties responsible for the
deal is incumbent upon the judicial rather than upon the legislative branch.
But we think there is no basis in fact or in law for such assumption. The
petitioner has not challenged the validity of Senate Resolution No. 8, and
that resolution expressly requires the committee to determine the parties
responsible for the deal. We are bound to presume that the Senate has acted
in the due performance of its constitutional function in instituting the
inquiry, if the act is capable of being so construed. On the other hand, there
is no suggestion that the judiciary has instituted an inquiry to determine the
parties responsible for the deal. Under the circumstances of the case, it
appearing that the questioned transaction was affected by the head of the

Department of Justice himself, it is not reasonable to expect that the Fiscal
or the Court of First Instance of Manila will take the initiative to investigate
and prosecute the parties responsible for the deal until and unless the
Senate shall determined those parties are and shall taken such measures as
may be within its competence to take the redress the wrong that may have
been committed against the people as a result of the transaction. As we
have said, the transaction involved no less than P5,000,000 of public funds.
That certainly is a matter of a public concern which it is the duty of the
constitutional guardian of the treasury to investigate.
If the subject of investigation before the committee is within the range of
legitimate legislative inquiry and the proposed testimony of the witness
called relates to that subject, obedience, to its process may be enforced by
the committee by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 S.E.,
670; 40 Ann. Cas. [1916 B.], 1115.)
The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied
upon by the petitioner, is not applicable here. In that case the inquiry
instituted by the House of Representatives of the United States related to a
private real-estate pool or partnership in the District of Columbia. Jay Cook
and Company had had an interest in the pool but become bankrupts, and
their estate was in course of administration in a federal bankruptcy court in
Pennsylvania. The United States was one of their creditors. The trustee in
the bankruptcy proceeding had effected a settlement of the bankrupts'
interest in the pool, and of course his action was subject to examination and
approval or disapproval by the bankruptcy court. Some of the creditors,
including the United States, were dissatisfied with the settlement. The
resolution of the House directed the Committee "to inquire into the nature
and history of said real-estate pool and the character of said settlement,
with the amount of property involve, in which Jay Cooke and Co. were
interested, and the amount paid or to be paid in said settlement, with power
to send for persons and papers, and report to this House." The Supreme
Court of the United States, speaking thru Mr. Justice Miller, pointed out
that the resolution contained no suggestion of contemplated legislation; that
the matter was one in respect of which no valid legislation could be had;
that the bankrupts' estate and the trustee's settlement were still pending in
the bankruptcy court; and that the United States and other creditors were
free to press their claims in that proceeding. And on these grounds the court
held that in undertaking the investigation "the House of Representatives not
only exceeded the limit of its own authority, but assumed a power which
could only be properly exercised by another branch of the government,
because the power was in its nature clearly judicial." The principles
announced and applied in that case are: that neither House of Congress
possesses a "general power of making inquiry into the private affairs of the
citizen"; that the power actually possessed is limited to inquires relating to
matters of which the particular House has jurisdiction, and in respect of
which it rightfully may take other action; that if the inquiry relates to a
matter wherein relief or redress could be had only by judicial proceeding, it
is not within the range of this power , but must be left to the court,
conformably to the constitutional separation of government powers.
That case differs from the present case in two important respects: (1) There
the court found that the subject of the inquiry, which related to a private
real-estate pool or partnership, was not within the jurisdiction of either
House of Congress; while here if it is not disputed that the subject of the
inquiry, which relates to a transaction involving a questionable expenditure
by the Government of P5,000,000 of public funds, is within the jurisdiction
of the Senate, (2) There the claim of the Government as a creditor of Jay
Cooke and Company, which had had an interest in the pool, was pending
adjudication by the court; while here the interposition of the judicial power
on the subject of the inquiry cannot be expected, as we have pointed out
above, until after the Senate shall have determined who the parties
responsible are and shall have taken such measures as may be within its
competence to take to redress the wrong that may have been committed
against the people as a result of the transaction.
27
It is interesting to note that the decision in the case of
Killbourn vs. Thompson has evoked strong criticisms from legal scholars.
(See Potts, Power of Legislative Bodies to Punish for Contempt [1926], 74
U. Pa. L. Rev., 692-699; James L. Land is, Constitutional Limitations on
the Congressional Power of Investigation [1926], 40 Harvard L. Rev., 153,
154, 214-220.) We quoted the following from Professor Land is' criticism:
"Mr. Justice Miller saw the case purely as an attempt by the House to
secure to the Government certain priority rights as creditor of the bankrupt
concern. To him it assumed the character of a lawsuit between the
Government and Jay Cooke and Co., with the Government, acting through
the House, attempting to override the orderliness of established procedure
and thereby prefer a creditors' bill not before the courts but before Congress.
That bankruptcy proceedings had already been instituted against Jay Cooke
and Co., in a federal court gave added impetus to such a conception. The
House was seeking to oust a court of prior acquired jurisdiction by an
extraordinary and unwarranted assumption of "judicial power"! The
broader aspect of the investigation had not been disclosed to the Court.
That Jay Cooke and Co.'s indebtedness and the particular funds in question
were only part of the great administrative problem connected with the use
and disposition of public monies, that the particular failure was of
consequence mainly in relation to the security demanded for all
government deposits, that the facts connected with one such default
revealed the possibility of other and greater maladministration, such
considerations had not been put before the Court. Nor had it been
acquainted with the every-day nature of the particular investigation and the
powers there exerted by the House, powers whose exercise was customary
and familiar in legislative practice. Instead of assuming the character of an
extraordinary judicial proceeding, the inquiry, place in its proper
background, should have been regarded as a normal and customary part of
the legislative process. Detailed definiteness of legislative purpose was thus
made the demand of the court in Killbourn vs. Thompson. But investigators
cannot foretell the results that may be achieved. The power of Congress to
exercise control over a real-estate pool is not a matter for abstract
speculation but one to be determined only after an exhaustive examination
of the problem. Relationship, and not their possibilities, determine the
extent of congressional power. Constitutionality depends upon such
disclosures. Their presence, whether determinative of legislative or judicial
power, cannot be relegated to guesswork. Neither Congress nor the Court
can predict, prior to the event, the result of the investigation."
The other case relied upon by the petitioner is Marshall vs. Gordon, 243
U.S., 521; 61. ed., 881. The question there was whether the House of
Representatives exceeded its power in punishing, as for contempt of its
authority, the District Attorney of the Southern District of New York, who
had written, published, and sent to the chairman of one of its committees an
ill-tempered and irritating letter respecting the action and purposes of the
committee in interfering with the investigation by the grand jury of alleged
illegal activities of a member of the House of Representatives. Power to
make inquires and obtain evidence by compulsory process was not
involved. The court recognized distinctly that the House of Representatives
had implied power to punish a person not a member for contempt, but held
that its action in this instance was without constitutional justification. The
decision was put on the ground that the letter, while offensive and
vexatious, was not calculated or likely to affect the House in any of its
proceedings or in the exercise of any of its functions. This brief statement
of the facts and the issues decided in that case is sufficient to show the
inapplicability thereof to the present case. There the contempt involved
consisted in the district attorney's writing to the chairman of the committee
an offensive and vexatious letter, while here the contempt involved consists
in the refusal of the witness to answer questions pertinent to the subject of
an inquiry which the Senate has the power and jurisdiction to make . But in
that case, it was recognized that the House of Representatives has implied
power to punish a person not a member of contempt. In that respect the
case is applicable here in favor of the Senate's (and not of the Petitioner's )
contention.

Second. It is next contended for the petitioner that the Senate lacks
authority to commit him for contempt for a term beyond its period of
legislative session, which ended on May 18, 1950. This contention is based
on the opinion of Mr. Justice Malcolm, concurred in by Justices Street and
Villa-Real, in the case of Lopez vs. De los Reyes (1930), 55 Phil., 170. In
that case it appears that on October 23, 1929, Candido Lopez assaulted a
member of the House of Representatives while the latter was going to the
hall of the House of Representatives to attend the session which was then
about to begin, as a result of which assault said representative was unable
to attend the sessions on that day and those of the two days next following
by reason of the threats which Candido Lopez made against him. By the
resolution of the House adopted November 6, 1929, Lopez was declared
guilty of contempt of the House of Representatives and ordered punished
by confinement in Bilibid Prison for a period of twenty-four hours. That
resolution was not complied with because the session of the House of
Representatives adjourned at midnight on November 8, 1929, and was
reiterated at the next session on September 16, 1930. Lopez was
subsequently arrested, whereupon he applied for the writ of habeas
corpus in the Court of First Instance of Manila, which denied the
application. Upon appeal to the Supreme Court, six justices voted to grant
the writ: Justice Malcolm, Street, and Villa-real, on the ground that the
term of imprisonment meted out to the petitioner could not legally be
extended beyond the session of the body in which the contempt occurred;
and Justices Johns, Villamor, and Ostrand, on the ground that the
Philippine Legislature had no power to punish for contempt because it was
a creature merely of an Act of the Congress of the United States and not of
a Constitution adopted by the people. Chief Justice Avanceña, Justice
Johnson, and Justice Romualdez wrote separate opinions, concurring with
Justice Malcolm, Street, and Villa-Real, that the Legislature had inherent
power to punish for contempt but dissenting from the opinion that the order
of commitment could only be executed during the particular session in
which the act of contempt was committed.
Thus, on the question under consideration, the Court was equally divided
and no decisive pronouncement was made. The opinion of Mr. Justice
Malcolm is based mainly on the following passage in the case of
Anderson vs.Dunn, supra:
And although the legislative power continues perpetual, the legislative
body ceases to exist on the moment of its adjournment or periodical
dissolution. It follows that imprisonment must terminate with that
adjournment.
as well as on the following quotation from Marshall vs. Gordon, supra:
And the essential nature of the power also makes clear the cogency and
application of the two limitations which were expressly pointed out in
Anderson vs. Dunn, supra, that is, that the power even when applied to
subjects which justified its exercise is limited to imprisonment and such
imprisonment may not be extended beyond the session of the body in
which the contempt occurred.
Interpreting the above quotations, Chief Justice Avanceña held:
From this doctrine it follows, in my judgement, that the imposition of the
penalty is limited to the existence of the legislative body, which ceases to
function upon its final periodical dissolution. The doctrine refers to its
existence and not to any particular session thereof. This must be so,
inasmuch as the basis of the power to impose such penalty is the right
which the Legislature has to self-preservation, and which right is
enforceable during the existence of the legislative body. Many causes
might be conceived to constitute contempt to the Legislature, which would
continue to be a menace to its preservation during the existence of the
legislative body against which contempt was committed.
28
If the basis of the power of the legislature to punish for contempt exists
while the legislative body exercising it is in session, then that power and
the exercise thereof must perforce continue until the final adjournment and
the election of its successor.
Mr. Justice Johnson's more elaborate opinion, supported by quotations from
Cooley's Constitutional Limitations and from Jefferson's Manual, is to the
same effect. Mr. Justice Romualdez said: "In my opinion, where as in the
case before us, the members composing the legislative body against which
the contempt was committed have not yet completed their three-year term,
the House may take action against the petitioner herein."
We note that the quotations from Anderson vs. Dunn and
Marshall vs. Gordon relied upon by Justice Malcolm are obiter dicta.
Anderson vs. Dunn was an action of trespass against the Sergeant-at-Arms
of the House of Representatives of the United States for assault and battery
and false imprisonment. The plaintiff had been arrested for contempt of the
House, brought before the bar of the House, and reprimanded by the
Speaker, and then discharged from custody. The question as to the duration
of the penalty was not involved in that case. The question there was
"whether the House of Representatives can take cognizance of contempt
committed against themselves, under any circumstances." The court there
held that the House of Representatives had the power to punish for
contempt, and affirmed the judgment of the lower court in favor of the
defendant. In Marshall vs. Gordon, the question presented was whether the
House had the power under the Constitution to deal with the conduct of the
district attorney in writing a vexatious letter as a contempt of its authority,
and to inflict punishment upon the writer for such contempt as a matter of
legislative power. The court held that the House had no such power
because the writing of the letter did not obstruct the performance of
legislative duty and did not endanger the preservation of the power of the
House to carry out its legislative authority. Upon that ground alone, and not
because the House had adjourned, the court ordered the discharge of the
petitioner from custody.
The case where the question was squarely decided is
McGrain vs. Daugherty, supra. There it appears that the Senate had
adopted a resolution authorizing and directing a select committee of five
senators to investigate various charges of misfeasance and nonfeasance in
the Department of Justice after Attorney General Harry M. Daugherty
became its supervising head. In the course of the investigation the
committee caused to be served on Mally S. Daugherty, brother of Harry M.
Daugherty and president of the Midland National Bank of Washington
Court House, Ohio, a subpoena commanding him to appear before it for the
purpose of giving testimony relating to the subject under consideration. The
witness failed to appear without offering any excuse for his failure. The
committee reported the matter to the Senate and the latter adopted a
resolution, "That the President of the Senate pro tempore issue his warrant
commanding the Sergeant-at-Arms or his deputy to take into custody the
body of the said M.S. Daugherty wherever found, and to bring the said M.S.
Daugherty before the bar of the Senate, then and there to answer such
questions pertinent to the matter under inquiry as the Senate may order the
President of the Senate pro tempore to propound; and to keep the said M.S.
Daugherty in custody to await the further order of the Senate." Upon being
arrested, the witness petitioned the federal court in Cincinnati for a writ
of habeas corpus. The federal court granted the writ and discharged the
witness on the ground that the Senate, in directing the investigation and in
ordering the arrest, exceeded its power under the Constitution. Upon appeal
to the Supreme Court of the United States, one of the contentions of the
witness was that the case ha become moot because the investigation was
ordered and the committee was appointed during the Sixty-eighth Congress,
which expired on March 4, 1926. In overruling the contention, the court
said:

. . . The resolution ordering the investigation in terms limited the
committee's authority to the period of the Sixty-eighth Congress; but this
apparently was changed by a later and amendatory resolution authorizing
the committee to sit at such times and places as it might deem advisable or
necessary. It is said in Jefferson's Manual: "Neither House can continue any
portion of itself in any parliamentary function beyond the end of the
session without the consent of the other two branches. When done, it is by
a bill constituting them commissioners for the particular purpose." But the
context shows that the reference is to the two houses of Parliament when
adjourned by prorogation or dissolution by the King. The rule may be the
same with the House of Representatives whose members are all elected for
the period of a single Congress: but it cannot well be the same with the
Senate, which is a continuing body whose members are elected for a term
of six years and so divided into classes that the seats of one third only
become vacant at the end of each Congress, two thirds always continuing
into the next Congress, save as vacancies may occur through death or
resignation.
Mr. Hinds in his collection of precedents, says: "The Senate, as a
continuing body, may continue its committees through the recess following
the expiration of a Congress;" and, after quoting the above statement from
Jefferson's Manual, he says: "The Senate, however being a continuing body,
gives authority to its committees during the recess after the expiration of a
Congress." So far as we are advised the select committee having this
investigation in charge has neither made a final report nor been discharged;
nor has been continued by an affirmative order. Apparently its activities
have been suspended pending the decision of this case. But, be this as it
may, it is certain that the committee may be continued or revived now by
motion to that effect, and if, continued or revived, will have all its original
powers. This being so, and the Senate being a continuing body, the case
cannot be said to have become moot in the ordinary sense. The situation is
measurably like that in Southern P. Terminal Co. vs. Interstate Commerce
Commission, 219 U. S., 498, 514-516; 55 L. ed., 310, 315, 316; 31 Sup. Ct.
Rep., 279, where it was held that a suit to enjoin the enforcement of an
order of the Interstate Commerce Commission did not become moot
through the expiration of the order where it was capable of repetition by the
Commission and was a matter of public interest. Our judgment may yet be
carried into effect and the investigation proceeded with from the point at
which it apparently was interrupted by reason of the habeas
corpus proceedings. In these circumstances we think a judgment should be
rendered as was done in the case cited.
What has been said requires that the final order in the District Court
discharging the witness from custody be reversed.
Like the Senate of the United States , the Senate of the Philippines is a
continuing body whose members are elected for a term of six years and so
divided that the seats of only one-third become vacant every two years,
two-thirds always continuing into the next Congress save as vacancies may
occur thru death or resignation. Members of the House of Representatives
are all elected for a term of four years; so that the term of every Congress is
four years. The Second Congress of the Philippines was constituted on
December 30, 1949, and will expire on December 30, 1953. The resolution
of the Senate committing the Petitioner was adopted during the first session
of the Second Congress, which began on the fourth Monday of January and
ended in May 18, 1950.
Had said resolution of commitment been adopted by the House of
Representatives, we think it could be enforced until the final adjournment
of the last session of the Second Congress in 1953. We find no sound
reason to limit the power of the legislative body to punish for contempt to
the end of every session and not to the end of the last session terminating
the existence of that body. The very reason for the exercise of the power to
punish for contempt is to enable the legislative body to perform its
constitutional function without impediment or obstruction. Legislative
29
functions may be and in practice are performed during recess by duly
constituted committees charged with the duty of performing investigations
or conducting hearing relative to any proposed legislation. To deny to such
committees the power of inquiry with process to enforce it would be to
defeat the very purpose for which that the power is recognized in the
legislative body as an essential and appropriate auxiliary to is legislative
function. It is but logical to say that the power of self-preservation is
coexistent with the life to be preserved.
But the resolution of commitment here in question was adopted by the
Senate, which is a continuing body and which does not cease exist upon the
periodical dissolution of the Congress or of the House of Representatives.
There is no limit as to time to the Senate's power to punish for contempt in
cases where that power may constitutionally be exerted as in the present
case.
Mere reflection upon the situation at hand convinces us of the soundness of
this proposition. The Senate has ordered an investigation of the Buenavista
and Tambobong estates deal, which we have found it is within its
competence to make. That investigation has not been completed because of
the refusal of the petitioner as a witness to answer certain questions
pertinent to the subject of the inquiry. The Senate has empowered the
committee to continue the investigation during the recess. By refusing to
answer the questions, the witness has obstructed the performance by the
Senate of its legislative function, and the Senate has the power to remove
the obstruction by compelling the witness to answer the questions thru
restraint of his liberty until he shall have answered them. That power
subsists as long as the Senate, which is a continuing body, persists in
performing the particular legislative function involved. To hold that it may
punish the witness for contempt only during the session in which
investigation was begun, would be to recognize the right of the Senate to
perform its function but at the same time to deny to it an essential and
appropriate means for its performance. Aside from this, if we should hold
that the power to punish for contempt terminates upon the adjournment of
the session, the Senate would have to resume the investigation at the next
and succeeding sessions and repeat the contempt proceedings against the
witness until the investigation is completed-an absurd, unnecessary, and
vexatious procedure, which should be avoided.
As against the foregoing conclusion it is argued for the petitioner that the
power may be abusively and oppressively exerted by the Senate which
might keep the witness in prison for life. But we must assume that the
Senate will not be disposed to exert the power beyond its proper bounds.
And if, contrary to this assumption, proper limitations are disregarded, the
portals of this Court are always open to those whose rights might thus be
transgressed.
Third. Lastly, the petitioner invokes the privilege against self-incrimination.
He contends that he would incriminate himself if he should reveal the name
of the person to whom he gave the P440,000 if that person be a public
official be (witness) might be accused of bribery, and if that person be a
private individual the latter might accuse him of oral defamation.
The ground upon which the witness' claim is based is too shaky, in firm,
and slippery to afford him safety. At first he told the Committee that the
transactions were legal, that no laws were violated, and that all requisites
had been replied with; but at the time he begged to be excused from
making answers "which might later be used against me." A little later he
explained that although the transactions were legal he refused to answer
questions concerning them "because it violates the right of a citizen to
privacy in his dealings with other people . . . I simply stand on my privilege
to dispose of the money that has been paid to me as a result of a legal
transaction without having to account for the use of it." But after being
apparently convinced by the Committee that his position was untenable, the

witness testified that, without securing any receipt, he turned over the
P440,000 to a certain person, a representative of Burt, in compliance with
Burt's verbal instruction made in 1946; that as far as he know, that certain
person had nothing to do with the negotiations for the settlement of the
Buenavista and Tambobong cases; that he had seen that person several
times before he gave him the P440,000 on October 29, 1949, and that since
then he had seen him again two or three times, the last time being in
December, 1949, in Manila; that the person was a male, 39 to 40 years of
age, between 5 feet, 2 inches and 5 feet, 6 inches in height. Butt the witness
would not reveal the name of that person on these pretexts: " I don't
remember the name; he was a representative of Burt." "I am not sure; I
don't remember the name."
We are satisfied that those answers of the witness to the important question,
what is the name of that person to whom you gave the P440,000? were
obviously false. His insistent claim before the bar of the Senate that if he
should reveal the name he would incriminate himself, necessarily implied
that he knew the name. Moreover, it is unbelievable that he gave the
P440,000 to a person to him unknown.
"Testimony which is obviously false or evasive is equivalent to a refusal to
testify and is punishable as contempt, assuming that a refusal to testify
would be so punishable." (12 Am. Jur., sec. 15, Contempt, pp. 399-400.) In
the case of Mason vs. U.S., 61 L. ed., 1198, it appears that Mason was
called to testify before a grand jury engaged in investigating a charge of
gambling against six other men. After stating that he was sitting at a table
with said men when they were arrested, he refused to answer two questions,
claiming so to do might tend to incriminate him: (1) "Was there a game of
cards being played on this particular evening at the table at which you are
sitting?" (2) "Was there a game of cards being played at another table at
this time?" The foreman of the grand jury reported the matter to the judge,
who ruled "that each and all of said questions are proper and that the
answers thereto would not tend to incriminate the witness." Mason was
again called and refused to answer the first question propounded to him,
but, half yielding to frustration, he said in response to the second question:
"I don't know." In affirming the conviction for contempt, the Supreme
Court of the United States among other things said:
In the present case, the witness certainly were not relieved from answering
merely because they declared that so to do might incriminate them. The
wisdom of the rule in this regard is well illustrated by the enforced answer,
"I don't know ," given by Mason to the second question, after he had
refused to reply under a claim of constitutional privilege.
Since according to the witness himself the transaction was legal, and that
he gave the P440,000 to a representative of Burt in compliance with the
latter's verbal instruction, we find no basis upon which to sustain his claim
that to reveal the name of that person might incriminate him. There is no
conflict of authorities on the applicable rule, to wit:
Generally, the question whether testimony is privileged is for the
determination of the Court. At least, it is not enough for the witness to say
that the answer will incriminate him. as he is not the sole judge of his
liability. The danger of self-incrimination must appear reasonable and real
to the court, from all the circumstances, and from the whole case, as well as
from his general conception of the relations of the witness. Upon the facts
thus developed, it is the province of the court to determine whether a direct
answer to a question may criminate or not. . . . The fact that the testimony
of a witness may tend to show that he has violated the law is not sufficient
to entitle him to claim the protection of the constitutional provision against
self-incrimination, unless he is at the same time liable to prosecution and
punishment for such violation. The witness cannot assert his privilege by
reason of some fanciful excuse, for protection against an imaginary danger,
30
or to secure immunity to a third person. ( 3 Wharton's Criminal Evidence,
11th ed., secs. 1135,1136.)
It is the province of the trial judge to determine from all the facts and
circumstances of the case whether the witness is justified in refusing to
answer. (People vs. Gonzo, 23 N.E. [2d], 210 [Ill. App., 1939].) A witness
is not relieved from answering merely on his own declaration that an
answer might incriminate him, but rather it is for the trial judge to decide
that question. (Mason vs. U.S., 244 U. S., 362; 61 L. ed., 1193, 1200.)
As against witness's inconsistent and unjustified claim to a constitutional
right, is his clear duty as a citizen to give frank, sincere, and truthful
testimony before a competent authority. The state has the right to exact
fulfillment of a citizen's obligation, consistent of course with his right
under the Constitution. The witness in this case has been vociferous and
militant in claiming constitutional rights and privileges but patently
recreant to his duties and obligations to the Government which protects
those rights under the law. When a specific right and a specific obligation
conflict with each other, and one is doubtful or uncertain while the other is
clear and imperative, the former must give way to the latter. The right to
life is one of the most sacred that the citizen may claim, and yet the state
may deprive him of it if he violates his corresponding obligation to respect
the life of others. As Mr. Justice Johnson said in Anderson vs. Dunn: "The
wretch beneath the gallows may repine at the fate which awaits him, and
yet it is not certain that the laws under which he suffers were made for the
security." Paraphrasing and applying that pronouncement here, the
petitioner may not relish the restraint of his liberty pending the fulfillment
by him of his duty, but it is no less certain that the laws under which his
liberty is restrained were made for his welfare.
From all the foregoing, it follows that the petition must be denied, and it is
so ordered, with costs.
Paras, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.
G.R. No. L-6749 July 30, 1955
JEAN L. ARNAULT, petitioner-appellee,
vs.
EUSTAQUIO BALAGTAS, as Director of
Prisons, respondent-appellant.
Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor
General Guillermo E. Torres and Solicitor Jaime De Los Angeles for
appellant.
Estanislao A. Fernandez and Roman B. Antonio for appellee.
LABRADOR, J.:
This an appeal from judgment of the Court of First Instance of Rizal, Pasay
City Branch, Honorable Jose F. Flores presiding, in habeas
corpus proceeding, declaring that the continued detention and confinement
of Jean L. Arnault in the new Bilibid Prison, in pursuance of Senate
Resolution No. 114, dated November 8, 1952, is illegal, for the reason that
the Senate of the Philippines committed a clear abuse of discretion in
considering his answer naming one Jess D. Santos as the person to whom
delivery of the sum of P440,000 was made in the sale of the Buenavista and
Tambobong Estate, as a refusal to answer the question directed by the
Senate committee to him, and on the further ground that said Jean L.
Arnault, by his answer has purged himself of contempt and is consequently
entitled to be released and discharged.

Petitioner-appellee was an attorney in-fact or Ernest H. Burt in the
negotiations for the purchase of the Buenavista and Tambobong Estates by
the Government of the Philippines. The purchase was effected on October
21, 1949 and the price paid for both estates was P5,000,000. On February
27, 1950, the Senate of the Philippines adopted Resolution No. 8, whereby
it created a Special Committee to determine "whether the said purchase was
honest, valid and proper, and whether the price involved in the deal was
fair and just, the parties responsible therefor, any other facts the Committee
may deem proper in the premises." In the investigation conducted by the
Committee in pursuance of said Resolution, petitioner-appellee was asked
to whom a part of the purchase price, or P440,000, was delivered.
Petitioner-appellee refused to answer this question, whereupon the
Committee resolved on May 15, 1950, to order his commitment to the
custody of the Sergeant at-arms of the Philippines Senate and imprisoned in
the new Bilibid Prison in Rizal until such time when he shall reveal to the
Senate or to the Special Committee the name of the person who received
the P440,000 and to answer questions pertinent thereto. In G.R. No. L-3820,
petitioner-appellee herein questioned the validity of the confinement so
ordered, by a petition for certiorari filed in this Court. He contended that
the Senate of the Philippines has no power to punish him for contempt for
refusing to reveal the name of the person to whom he delivered P440,000.,
that the Legislature lacks authority to punish him for contempt beyond the
term of the legislative session, and that the question of the Senate which he
refused to answer is an incriminating question which the appellee is not
bound to answer. All the abovementioned contentions were adversely
passed upon by the decision of this Court, so his petition for release was
denied.
In the month of December, 1951, while still in confinement in Bilibid,
petitioner-appellee executed an affidavit, Exhibit A, wherein he gives in
detail the history of his life, the events surrounding acquisition of the
Buenavista and Tambobong Estates by Gen. Burt, the supposed
circumstances under which he met one by the name of Jess D. Santos.
Upon the presentation of the said affidavit to the said Senate Special
Committee, the latter subjected petitioner to questioning regarding the
identity of Jess D. Santos, and after said investigation and questioning the
Committee adopted Resolution No. 114 on November 8, 1952. This
Resolution reads as follows:
RESOLUTION APPROVING THE REPORT OF THE SPECIAL
COMMITTEE TO INVESTIGATE THE BUENAVISTA AND
TAMBOBONG ESTATES DEAL, AND ORDERING THE DIRECTOR
OF PRISON TO CONTINUE HOLDING JEAN L. ARNAULT IN HIS
CUSTODY, AND IN CONFINEMENT AND DETENTION AT THE
NEW BILIBID PRISON AT MUNTINLUPA, RIZAL, UNTIL THE SAID
ARNAULT SHALL HAVE PURGED HIMSELF OF CONTEMPT OF
THE SENATE.
WHEREAS, on the 15th May 1950 the Senate of the Philippines,
transcending divisions of party and faction in the national interest, adopted
a Resolution ordering the detention and confinement of Jean L. Arnault at
the New Bilibid Prison in Muntinlupa, Rizal, until he should have purged
himself of contempt of the Senate by revealing the person to whom he gave
the sum of P440,000 in connection with the Buenavista and Tambobong
Estates deal, and by answering other pertinent questions in connection
therewith;
WHEREAS, after considering the lengthy testimony offered by the said
Jean L. Arnault, and the report thereon rendered by the Senate Special
Committee on the said deal, the Senate holds and finds that, despite
numerous and generous opportunities offered to him at his own instance
and solicitation, the said Jean L. Arnault has failed and refused, and
continues to fail and refuse, to reveal the person to whom he gave the said
amount of P440,000, and to answer other pertinent questions in connection
with the Buenavista and Tambobong estates deal;
31
WHEREAS, the Senate holds and finds that the situation of the said Jean L.
Arnault has not materially changed since he was committed to prison for
contempt of the Senate, and since the Supreme Court of the Philippines, in
a judgment long since become final, upheld the power and authority of the
Senate to hold the said Jean L. Arnault in custody, detention, and
confinement, said power and authority having been held to be coercive
rather than punitive, and fully justified until the said Jean L. Arnault should
have given the information which he had withheld and continues
contumaciously to withhold;
WHEREAS, the insolent and manifest untruthful statements made by the
said Jean L. Arnault on the occasions above referred to constitute a
continuing contempt of the Senate, and an added affront to its dignity and
authority, such that , were they to be condoned or overlooked, the power
and authority of the Senate to conduct investigations would become futile
and ineffectual because they could be defied by any person of sufficient
stubbornness and malice;
WHEREAS, the Senate holds and finds that the identity of the person to
whom the said Jean L. Arnault gave the amount of P440,000 in connection
with the Buenavista and Tambobong estates deal, and the further
information which the Senate requires and which the said Jean L. Arnault
arrogantly and contumaciously withholds, is required for the discharge of
its legislative functions, particularly so that adequate measures can be taken
to prevent the repetition of similar frauds upon the Government and the
People of the Philippines and to recover said amount; and
WHEREAS, while not insensible to the appeal of understanding and mercy,
the Senate holds and finds that the said Jean L. Arnault, by his insolent and
contumacious defiance of the legitimate authority of the Senate, is trifling
with its proceedings, renders himself unworthy of mercy, and, in the
language of the Supreme Court, is his own jailer, because he could open the
doors of his prison at any time by revealing the truth; now therefore, be it
Resolved by the Senate of the Philippines, That the Senate hold and find, as
it hereby holds and finds, that Juan L. Arnault has not purged himself of
contempt of the Senate, and has in no way altered his situation since he has
committed to coercive not punitive, imprisonment for such contempt on the
15th day of May, 1950; and that Senate order, as it hereby orders, the
Director of Prisons to hold the said Jean L. Arnault, in his custody, and in
confinement and detention at the New Bilibid Prison in Muntinlupa, Rizal,
in coercive imprisonment, until he should have purged himself of the
aforesaid contempt to the satisfaction, and until order to that effect, of the
Senate of the Philippines or of its Special Committee to investigate the
Buenavista and Tambobong Estates deal.
Adopted, November 8, 1952 . (Exhibit 0)
In his petition for the writ of habeas corpus in the Court of First Instance,
petitioner-appellee alleges: (1) That the acquisition by the Government,
through the Rural Progress Administration, of the Buenavista and
Tambobong Estates was not illegal nor irregular nor scandalous nor
malodorous, but was in fact beneficial to the Government; (2) that the
decision of this Court in G. R. No. L-3820 declared that the Senate did not
imprison Arnault "beyond proper limitations", i.e., beyond the period
longer than arresto mayor, as this is the maximum penalty that can be
imposed under the provisions of Article 150 of the Revised Penal Code; (3)
that petitioner-appellee purged himself of the contempt charges when he
disclosed the fact that the one to whom he gave the P440,000 was Jess D.
Santos, and submitted evidence in corroboration thereof; (4) that the Senate
is not justified in finding that the petitioner-appellee did tell the truth when
he mentioned Jess D. Santos as the person to whom he gave the P440,000,
specially on the basis of the evidence submitted to it; (5) that the legislative
purpose or intention, for which the Senate ordered the confinement may be

considered as having been accomplished, and, therefore, there is no reason
for petitioner-appellee's continued confinement.
The claim that the purchase of the Buenavista and Tambobong Estates is
beneficial to the government and is neither illegal nor irregular is beside the
point. To our minds, two questions are decisive of this case. The first is:
Did the Senate Special Committee believe the statement of the
petitioner-appellee that the person to whom he gave the P440,000 is one by
the name of Jess D. Santos and if it did not, may the court review said
finding? And the second is: If the Senate did not believe the statement, is
the continued confinement and detention of the petitioner-appellee, as
ordered in Senate Resolution of November 8, 1952, valid?
On the first question, the Senate found as a fact that petitioner "has failed
and refused, and continues to fail and refuse, to reveal the person to whom
he gave the amount of P440,000" and that the situation of petitioner "has
not materially charged since he was committed to prison." In the first
resolution of the Senate Special Committee of May 15, 1950, it found that
petitioner "refused to reveal the name of the persons to whom he gave the
P440,000, as well as to answer other pertinent questions related to said
amount." It is clear and evident that the Senate Committee did not believe
petitioner's statement that the person to whom he delivered the
abovementioned amount is one by the name of Jess D. Santos. The court a
quo, however, arrogating unto itself the power to review such finding, held
that the "petitioner has satisfactorily shown that the person of Jess D.
Santos actually and physically existed in the human flesh," that the opinion
or conclusion of the Senate Committee is not borne to out by the evidence
produced at the investigation, that the Senate abused its discretion in
making its conclusion and that under these circumstances the only thing
that could in justice be done to petitioner is to order his release and have his
case endorsed to the prosecution branch of the judicial department for
investigation and prosecution as the circumstances warrant.
There is an inherent fundamental error in the course of action that the lower
court followed. It assumed that courts have the right to review the findings
of legislative bodies in the exercise of the prerogative of legislation, or
interfere with their proceedings or their discretion in what is known as the
legislative process.
The courts avoid encroachment upon the legislature in its exercise of
departmental discretion in the means used to accomplish legitimate
legislative ends. Since the legislature is given a large discretion in reference
to the means it may employ to promote the general welfare, and alone may
judge what means are necessary and appropriate to accomplish an end
which the Constitution makes legitimate, the courts cannot undertake to
decide whether the means adopted by the legislature are the only means or
even the best means possible to attain the end sought, for such course
would best the exercise of the police power of the state in the judicial
department. It has been said that the methods, regulations, and restrictions
to be imposed to attain results consistent with the public welfare are purely
of legislative cognizance, and the determination of the legislature is final,
except when so arbitrary as to be violative of the constitutional rights of the
citizen. Furthermore, in the absence of a clear violation of a constitutional
inhibition, the courts should assume that legislative discretion has been
properly exercised. (11 Am. Jur., pp. 901-902).
These the judicial department of the government has no right or power or
authority to do, much in the same manner that the legislative department
may not invade the judicial realm in the ascertainment of truth and in the
application and interpretation of the law, in what is known as the judicial
process, because that would be in direct conflict with the fundamental
principle of separation of powers established by the Constitution. The only
instances when judicial intervention may lawfully be invoke are when there
32
has been a violation of a constitutional inhibition, or when there has been
an arbitrary exercise of the legislative discretion.
Under our constitutional system, the powers of government are distributed
among three coordinate and substantially independent organs: the
legislative, the executive and the judicial. Each of these departments of the
government derives its authority from the Constitution which, in turn, is the
highest expression of the popular will. Each has exclusive cognizance of
the matters within its jurisdiction, and is supreme within its own sphere.
(People of the Philippine Islands, et al. vs. Vera, et al 65 Phil., 56; See also
Angara vs. Electoral Commission, 63 Phil., 139)
All that the courts may do, in relation to the proceedings taken against
petitioner prior to his incarceration, is to determine if the constitutional
guarantee of due process has been accorded him before his incarceration by
legislative order, and this because of the mandate of the Supreme Law of
the land that no man shall be deprived life, liberty or property without due
process of law. In the case at bar such right has fully been extended the
petitioner, he having been given the opportunity to be heard personally and
by counsel in all the proceedings prior to the approval of the Resolution
ordering his continued confinement.
The second question involves in turn the following propositions: Does the
Philippine Senate have the power and authority to pass its resolution
ordering the continued confinement of the petitioner? In the supposition
that such power and authority exist, was such power legitimately exercised
after the petitioner had given the name Jess D. Santos? A study of the text
of the resolution readily shows that the Senate found that the
petitioner-appellee did not disclose, by the mere giving of the name Jess D.
Santos, the identity of the person to whom the sum of P440, 000 was
delivered, and, in addition thereto that petitioner withheld said identity
arrogantly and contumaciously in continued affront of the Senate's
authority and dignity. Although the resolution studiously avoids saying that
the confinement is a punishment, but merely seeks to coerce the petitioner
into telling the truth, the intention is evident that the continuation of the
imprisonment ordered is in fact partly unitive. This may be inferred from
the confining made in the resolution that petitioner-appellee's acts were
arrogant and contumacious and constituted an affront to the Senate's
dignity and authority. In a way, therefore, the petitioner's assumption that
the imprisonment is punitive is justified by the language of the resolution,
wherefore the issue now before Us in whether the Senate has the power to
punish the contempt committed against it under the circumstances of the
case. This question is thus squarely presented before Us for determination.
In the previous case of this same petitioner decided by this Court, G. R. No.
L-38201, Arnault vs. Nazareno, et al. (46 Off. Gaz., No. 7, 3100), it was
admitted and we had ruled that the Senate has the authority to commit a
witness if he refuses to answer a question pertinent to a legislative inquiry,
to compel him to give the information, i.e., by reason of its coercive power,
not its punitive power. It is now contended by petitioner that if he
committed an offense of contempt or perjury against the legislative body,
because he refused to reveal the identity of the person in accordance with
the demands of the Senate Committee, the legislature may not punish him,
for the punishment for his refusal should be sought through the ordinary
processes of the law, i. e., by the institution of a criminal action in a court
of justice.
American legislative bodies, after which our own is patterned, have the
power to punish for contempt if the contempt has had the effect of
obstructing the exercise by the legislature of, or deterring or preventing it
from exercising, its legitimate functions (Annotation to Jurney vs.
MacCraken, 79 L. ed. 814). While the power of the United States Senate to
punish for contempt was not clearly recognized in its earlier decision (See
Marshal vs. Gordon, 61 L. ed. 881), the Supreme Court of the United States

two decades ago held that such power and authority exist. In the case of
Jurney vs. MacCraken (294 U. S. 123, 79 L. ed. 802), the question before it
was whether or not the Senate could order the confinement of a private
citizen because of the destruction and removal by him of certain papers
required to be produced. The court said:
First, The main contention of MacCracken is that the so-called power to
punish for contempt may never be exerted, in the case of a private citizen,
solely qua punishment. The argument is that the power may be used by the
legislative body merely as a means of removing an existing obstruction to
the performance of its duties; that the power to punish ceases as soon as the
obstruction has been removed, or its removal has become impossible; and
hence that there is no power to punish a witness who, having been
requested to produce papers, destroys them after service of the subpoena.
The contention rests upon a misconception of the limitations upon the
power of the Houses of Congress to punish for contempt. It is true that the
scope of the power is narrow. No act is so punishable unless it is of a nature
to obstruct the performance of the duties of the legislature. This may be
lack of power, because, as in Kilbourn vs. Thompson, 103 U. S. 168, 26 L.
ed. 377, there was no legislative duty to be performed; or because, as in
Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A.
1917F, 279, Ann. Cas. 1918B, 371, the act complained of is deemed not to
be of a character to obstruct the legislative process. But, where the
offending act was of a nature to obstruct the legislative process, the fact
that the obstruction has since been removed, or that its removal has become
impossible is without legal significance.
The power to punish a private citizen for a past and completed act was
exerted by Congress as early as 1795; and since then it has been exercised
on several occasions. It was asserted, before the Revolution, by the colonial
assemblies, in intimation of the British House of Commons; and afterwards
by the Continental Congress and by state legislative bodies. In
Anderson vs. Dunn, 6 Wheat, 204, 5 L. ed. 242, decided in 1821, it was
held that the House had power to punish a private citizen for an attempt to
bribe a member. No case has been found in which an exertion of the power
to punish for contempt has been successfully challenged on the ground that,
before punishment, the offending act had been consummated or that the
obstruction suffered was irremediable. The statement in the opinion in
Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A.
1917F. 279 Ann. Cas. 1918B, 371, supra, upon which MacCracken relies,
must be read in the light of the particular facts. It was there recognized that
the only jurisdictional test to be applied by the court is the character of the
offense; and that the continuance of the obstruction, or the likelihood of its
repetition, are considerations for the discretion of the legislators in meting
out the punishment.
Here, we are concerned not with an extention of congressional privilege,
but with vindication of the established and essential privilege of requiring
the production of evidence. For this purpose, the power to punish for a past
contempt is an appropriate means. Compare Ex parte Nugent (C. C.) 1
Brunner, Col. Cas. 296, Fed. Cas No. 10375; Steward vs. Bleine, 1
MacArth. 453. The apprehensions expressed from time to time in
congressional debates, in opposition to particular exercise of the contempt
power concerned, not the power to punish, as such, but the broad,
undefined privileges which it was believed might find sanction in that
power. The ground for such fears has since been effectively removed by the
decisions of this Court which hold that assertions of congressional privilege
are subject to judicial review. Melbourn vs. Thompson, 103 U. S. 168, 26 L.
ed. 377, supra; and that the power to punish for contempt may not be
extended to slanderous attacks which presents no immediate obstruction to
legislative processes. Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37
S. Ct. 448, L.R. A. 1917F, Ann. Cas. 1918B, 731 supra.
The principle that Congress or any of its bodies has the power to punish
recalcitrant witnesses is founded upon reason and policy. Said power must
33
be considered implied or incidental to the exercise of legislative power, or
necessary to effectuate said power. How could a legislative body obtain the
knowledge and information on which to base intended legislation if it
cannot require and compel the disclosure of such knowledge and
information, if it is impotent to punish a defiance of its power and authority?
When the framers of the Constitution adopted the principle of separation of
powers, making each branch supreme within the realm of its respective
authority, it must have intended each department's authority to be full and
complete, independently of the other's authority and power. And how could
the authority and power become complete if for every act of refusal, every
act of defiance, every act of contumacy against it, the legislative body must
resort to the judicial department for the appropriate remedy, because it is
impotent by itself to punish or deal therewith, with the affronts committed
against its authority or dignity. The process by which a contumacious
witness is dealt with by the legislature in order to enable it to exercise its
legislative power or authority must be distinguished from the judicial
process by which offenders are brought to the courts of justice for the
meting of the punishment which the criminal law imposes upon them. The
former falls exclusively within the legislative authority, the latter within the
domain of the courts; because the former is a necessary concommitant of
the legislative power or process, while the latter has to do with the
enforcement and application of the criminal law.
We must also and that provided the contempt is related to the exercise of
the legislative power and is committed in the course of the legislative
process, the legislature's authority to deal with the defiant and
contumacious witness should be supreme, and unless there is a manifest
and absolute disregard of discretion and a mere exertion of arbitrary power
coming within the reach of constitutional limitations, the exercise of the
authority is not subject to judicial interference. (Marshall vs.
Gordon, supra).
The next question concerns the claim that the petitioner has purged himself
of contempt, because he says he has already answered the original question
which he had previously been required to answer. In order that the
petitioner may be considered as having purged himself of the contempt, it
is necessary that he should have testified truthfully, disclosing the real
identity of the person subject of the inquiry. No person guilty of contempt
may purge himself by another lie or falsehood; this would be repetition of
the offense. It is true that he gave a name, Jess D. Santos, as that of the
person to whom delivery of the sum of P440,000 was made. The Senate
Committee refused to believe, and justly, that is the real name of the person
whose identity is being the subject of the inquiry. The Senate, therefore,
held that the act of the petitioner continued the original contempt, or
reiterated it. Furthermore, the act further interpreted as an affront to its
dignity. It may well be taken as insult to the intelligence of the honorable
members of the body that conducted the investigation. The act of defiance
and contempt could not have been clearer and more evident. Certainly, the
Senate resolution declaring the petitioner in contempt may not be claimed
as an exertion of an arbitrary power.
One last contention of petitioner remains to be considered. It is the claim
that as the period of imprisonment has lasted for a period which exceeded
that provided by law punishment for contempt, i. e., 6 months of arresto
mayor, the petitioner is now entitled to be released. This claim is not
justified by the record. Petitioner was originally confined by Resolution No.
17 on May 15, 1950. On December 13, 1951, he executed his affidavit and
thereafter he was called to testify again before the Senate Committee. The
latter passed its Resolution No. 114 on November 6, 1952, and he
presented the petition for habeas corpus in this case on March 3, 1953, i. e.,
five months after the last resolution when the Senate found that the
petitioner committed another contempt. It is not true, therefore, that the
petitioner's punishment is beyond the full period prescribed in the criminal
law.

Besides, the last resolution of November 8, 1952 is also of a coersive
nature, in the sense that the Senate Committee still demands and requires
the disclosure of the fact which the petitioner had obstinately refused to
divulge. While the Philippine Senate has not given up hope that the
petitioner may ultimately disclose the record, it is improper for the courts to
declare that the continued confinement is an abuse of the legislative power
and thereby interfere in the exercise of the legislative discretion.
The judgment appealed from should be, as it hereby is, reversed, and the
petition for the issuance of the writ ofhabeas corpus denied. The order of
the court allowing the petitioner to give bail is declared null and void and
the petitioner is hereby ordered to be recommitted to the custody of the
respondent. With cost against the petitioner-appellee.
Bengzon, Acting C. J., Padilla, and Reyes, A., JJ., concur.
Bautista Angelo, Concepcion, and Reyes, J. B. L., JJ., concur in the result.
G.R. No. 89914 November 20, 1991
JOSE F.S. BENGZON JR., ABELARDO TERMULO, JOSE
MANTECON, VICENTE MILLS JR., LEONARDO GAMBOA,
KURT BACHMANN JR., JOSE V.E. JIMENEZ, ERNESTO
CALUYA, AGERICO UNGSON, SUSAN ROXAS, ELVIE
CASTILLO, and CYNTHIA SABIDO LIMJAP, petitioners,
vs.
THE SENATE BLUE RIBBON COMMITTEE AND ITS MEMBERS,
represented by and through the CHAIRMAN, HON. WIGBERTO
TAÑADA, respondents, JOSE S. SANDEJAS, intervenor.
Bengzon, Zarraga, Narciso, Cudala, Pecson & Bengson for petitioners.
Balgos & Perez for intervening petitioner.
Eddie Tamondong and Antonio T. Tagaro for respondents.
PADILLA, J.:
This is a petition for prohibition with prayer for the issuance of a temporary
restraining order and/or injuective relief, to enjoin the respondent Senate
Blue Ribbon committee from requiring the petitioners to testify and
produce evidence at its inquiry into the alleged sale of the equity of
Benjamin "Kokoy" Romualdez to the Lopa Group in thirty-six (36) or
thirty-nine (39) corporations.
On 30 July 1987, the Republic of the Philippines, represented by the
Presidential Commission on Good Government (PCGG), assisted by the
Solicitor General, filed with the Sandiganbayan Civil Case No. 0035
(PCGG Case No. 35) entitled "Republic of the Philippines vs. Benjamin
"Kokoy" Romualdez, et al.", for reconveyance, reversion, accounting,
restitution and damages.
The complaint was amended several times by impleading new defendants
and/or amplifying the allegations therein. Under the Second Amended
Complaint, 1 the herein petitioners were impleaded as party defendants.
The complaint insofar as pertinent to herein petitioners, as defendants,
alleges among others that:
14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez
Romualdez, acting by themselves and/or in unlawful concert with
Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking undue
34
advantage of their relationship, influence and connection with the latter
Defendant spouses, engaged in devices, schemes and strategems to
unjuestly enrigh themselves at the expense of Plaintiff and the Filipino
people, among others:
(a) Obatained, with the active collaboration of Defendants Sene J.
Gabaldon, Mario D. Camacho, Mamerto Nepomuceno, Carlos J. Valdez,
Cesar C. Zalamea and Francisco Tantuico, Atty. Jose Bengzon, Jr. and his
law partners, namely: Edilberto S. Narciso, Jr., Jose Vicente E. Jimenez,
Amando V. Faustino, Jr., and Leonardo C. Cruz; Jose S. Sandejas and his
fellow senior managers of FMMC/PNI Holdings groups of companies such
as Leonardo Gamboa, Vicente T. Mills, Jr., Jose M. Mantecon, Abelardo S.
Termulo, Rex C. Drilon II and Kurt Bachmann, Jr., control of some of the
biggest business enterprises in the Philippines, such as the Manila
Corporation (MERALCO), Benguet Consolidated and the Philippine
Commercial International Bank (PCI Bank) by employing devious
financial schemes and techniques calculated to require the massive infusion
and hemorrhage of government funds with minimum or negligible
"cashout" from Defendant Benjamin Romualdez...
xxx xxx xxx
(m) manipulated, with the support, assistance and collaboration of
Philgurantee officials led by chairman Cesar E.A. Virata and the Senior
managers of FMMC/PNI Holdings, Inc. led by Jose S. Sandejas, Jr., Jose
M. Mantecom and Kurt S. Bachmann, Jr., among others, the formation of
Erectors Holdings, Inc. without infusing additional capital solely for the
purpose of Erectors Incorporated with Philguarantee in the amount of
P527,387,440.71 with insufficient securities/collaterals just to enable
Erectors Inc, to appear viable and to borrow more capitals, so much so that
its obligation with Philgurantee has reached a total of more than P2 Billion
as of June 30, 1987.
(n) at the onset of the present Administration and/or within the week
following the February 1986 People's Revolution, in conspiracy with,
supoort, assistance and collaboration of the abovenamed lawyers of the
Bengzon Law Offices, or specifically Defendants Jose F.S. Bengzon, Jr.,
V.E. Jimenez, Amando V. Faustino, Jr., and Edilberto S. Narciso, Jr.,
manipulated, shcemed, and/or executed a series of devices intended to
conceal and place, and/or for the purpose of concealing and placing,
beyond the inquiry and jurisdiction of the Presidential Commission on
Good Government (PCGG) herein Defendant's individual and collective
funds, properties, and assets subject of and/or suited int he instant
Complaint.
(o) manuevered, with the technical know-how and legalitic talents of the
FMMC senior manager and some of the Bengzon law partners, such as
Attys. Jose F.S. Bengzon, Jr., Edilberto S. Narciso, Jr., Amando V.
Faustino, Jose Vicente E. Jimenez and Leonardo C. Cruz, the purported
sale of defendant Benjamin Romualdez's interests in the (i) Professional
Managers, (ii) A & E International Corporation (A & E), (iii) First Manila
Managerment Corporation (FMMC), (iv) Philippine World Travel Inc.
(PWTI) and its subsidiaries consisting of 36 corporations in all, to PNI
Holdings, Inc. (wjose purported incorporations are all members of Atty.
Jose F.S. Bengzon's law firm) for only P5 million on March 3, 1986 or
three days after the creation of the Presidential Commission on Good
Government on February 28, 1986, for the sole purpose of deceiving and
preempting the Government, particularly the PCGG, and making it appear
that defendant Benjamin Romualdez had already divested himself of his
ownership of the same when in truth and in fact, his interests are well intact
and being protected by Atty. Jose F.S. Bengzon, Jr. and some of his law
partners, together with the FMMC senior managers who still control and
run the affiars of said corporations, and in order to entice the PCGG to

approve the said fictitious sale, the above-named defendants offered P20
million as "donation" to the Government;
(p) misused, with the connivance, support and technical assitance of the
Bengzon law firm represented by Atty. Jose F.S. Bengzon, Jr. as legal
counsel, together with defendants Cesar Zalamea, Antonio Ozaeta, Mario
D. Camacho amd Senen J. Gabaldon as members of the Board of Directors
of the Philippine Commercial International bank (PCIB), the Meralco
Pension Fund (Fund, for short) in the amount of P25 million by cuasing it
to be invested in the PCIB and through the Bank's TSG, assigned to PCI
Development and PCI Equity at 50% each, the Fund's (a) 8,028.011
common shares in the Bank and (b) "Deposit in Subscription" in the
amount of P4,929.972.50 but of the agreed consideration of P28 million for
the said assignment, PCI Development and PCI Equity were able to pay
only P5,500.00 downpayment and the first amortization of P3,937,500.00
thus prompting the Fund to rescind its assignment, and the consequent
reversion of the assigned brought the total shareholding of the Fund to
11,470,555 voting shares or 36.8% of the voting stock of the PCIB, and this
development (which the defendants themselves orchestrated or allowed to
happen) was used by them as an excuse for the unlawful dismantling or
cancellation of the Fund's 10 million shares for allegedly exceeding the
30-percent ceiling prescribed by Section 12-B of the General Banking Act,
although they know for a fact that what the law declares as unlawful and
void ab initio are the subscriptions in excess of the 30% ceiling "to the
extent of the excess over any of the ceilings prescribed ..." and not the
whole or entire stockholding which they allowed to stay for six years (from
June 30, 1980 to March 24, 1986);
(q) cleverly hid behind the veil of corporate entity, through the use of the
names and managerial expertise of the FMMC senior manager and lawyers
identified as Jose B. Sandejas, Leonardo Gamboa, Vicente T. Mills,
Abelardo S, Termulo, Edilberto S. Narciso, Jr., Jose M. Mantecon, Rex C.
Drilon II, Kurt Bachmann, Jr. together with the legal talents of corporate
lawyers, such as Attys. Jose F.S. Bengzon, Jr., Jose V.E. Jimenez, Amando
V. Faustino, Jr., and Leonardo C. Cruz, the ill-gotten wealth of Benjamin T.
Romualdez including, among others, the 6,229,177 shares in PCIB
registered in the names of Trans Middle East Phils. Equities, Inc. and
Edilberto S. Narciso, Jr. which they refused to surrender to PCGG despite
their disclosure as they tried and continue to exert efforts in getting hold of
the same as well as the shares in Benguet registered in the names of Palm
Avenue Holdings and Palm Avenue Realty Development Corp. purportedly
to be applied as payment for the claim of P70 million of a "merger
company of the First Manila Managerment Corp. group" supposedly owned
by them although the truth is that all the said firms are still beneficially
owned by defendants Benjamin Romualdez.
xxx xxx xxx
On 28 September 1988, petitioner (as defendants) filed their respective
answers. 2 Meanwhile, from 2 to 6 August 1988, conflicting reports on the
disposition by the PCGG of the "Romualdez corporations" were carried in
various metropolitan newspapers. Thus, one newspaper reported that the
Romuladez firms had not been sequestered because of the opposition of
certain PCGG officials who "had worked prviously as lawyers of the
Marcos crony firms." Another daily reported otherwise, while others
declared that on 3 March 1986, or shortly after the EDSA February 1986
revolution, the Romualdez companies" were sold for P5 million, without
PCGG approval, to a holding company controlled by Romualdez, and that
Ricardo Lopa, the President's brother-in-law, had effectively taken over the
firms, even pending negotiations for the purchase of the corporations, for
the same price of P5 million which was reportedly way below the fair value
of their assets. 3
35
On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan Ponce Enrile delivered a speech "on a matter
of personal privilege" before the Senate on the alleged "take-over personal privilege" before the Senate on the
alleged "take-over of SOLOIL Incorporated, the flaship of the First Manila Management of Companies (FMMC) by
Ricardo Lopa" and called upon "the Senate to look into the possible violation of the law in the case, particularly with
regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act." 4
On motion of Senator Orlando Mercado, the matter was referred by the Senate to the Committee on Accountability
of Public Officers (Blue Ribbon Committee). 5
Thereafter, the Senate Blue Ribbon
Committee started its investigation on the matter. Petitioners and Ricardo
Lopa were subpoenaed by the Committee to appear before it and testify on
"what they know" regarding the "sale of thirty-six (36) corporations
belonging to Benjamin "Kokoy" Romualdez."
At the hearing held on 23 May 1989, Ricardo Lopa declined to testify on
the ground that his testimony may "unduly prejudice" the defendants in
Civil Case No. 0035 before the Sandiganbayan. Petitioner Jose F.S.
Bengzon, Jr. likewise refused to testify involing his constitutional right to
due process, and averring that the publicity generated by respondents
Committee's inquiry could adversely affect his rights as well as those of the
other petitioners who are his co-defendants in Civil Case No. 0035 before
the Sandiganbayan.
The Senate Blue Ribbon Committee, thereupon, suspended its inquiry and
directed the petitioners to file their memorandum on the constitutional
issues raised, after which, it issued a resolution 6 dated 5 June 1989
rejecting the petitioner's plea to be excused from testifying, and the
Committee voted to pursue and continue its investigation of the matter.
Senator Neptali Gonzales dissented. 7
Claiming that the Senate Blue Ribbon Committee is poised to subpoena them and required their attendance and
testimony in proceedings before the Committee, in excess of its jurisdiction and legislative purpose, in clear and
blatant disregard of their constitutional rights, and to their grave and irreparable damager, prejudice and injury, and
that there is no appeal nor any other plain, speedy and adequate remedy in the ordinary course of law, the petitioners
filed the present petition for prohibition with a prayer for temporary restraning order and/or injunctive relief.
Meanwhile, one of the defendants in Civil Case No. 0035 before the Sandiganbayan, Jose S. Sandejas, filed with the
Court of motion for intervention, 8
which the Court granted in the resolution 9 of 21
December 1989, and required the respondent Senate Blue Ribbon
Committee to comment on the petition in intervention. In compliance,
therewith, respondent Senate Blue Ribbon Committee filed its
comment 10 thereon.
Before discussing the issues raised by petitioner and intervenor, we will
first tackle the jurisdictional question raised by the respondent Committee.
In its comment, respondent Committee claims that this court cannot
properly inquire into the motives of the lawmakers in conducting
legislative investigations, much less cna it enjoin the Congress or any its
regular and special commitees — like what petitioners seek — from
making inquiries in aid of legislation, under the doctrine of separation of
powers, which obtaines in our present system of government.
The contention is untenable. In Angara vs. Electoral Commission, 11 the
Court held:

The separation of powers is a fundamental principle in our system of
government. It obtains not hrough express provision but by actual division
in our Constitution. Each department of the government has exclusive
cognizance of matters wihtin its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be
kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution
has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the
government...
xxx xxx xxx
But in the main, the Constitution has blocked out with deft strokes and in
bold lines, allotment of power to the executive, the legislative and the
judicial departments of the government. The ovelapping and interlacing of
funcstions and duties between the several deaprtments, however,
sometimes makes it hard to say just where the political excitement, the
great landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated, in cases of conflict, the judicial departments is the only
constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the
integral or constituent units thereof.
xxx xxx xxx
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution
itself has provided for the instrumentality of the judiciary as the rational
way. And when the judiciary mediates to allocate constitutional boundaries;
it does not assert any superiority over the other departments; it does not inr
eality nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by tyhe Constitution to
determine conflicting claims of authority under the Constitution and to
established for the parties in an actual controversy the rights which that
instrument secures and guarantess to them. This is in thruth all that is
involved in what is termed "judicial supremacy" which properly is the
power of judicial review under the Constitution. Even the, this power of
judicial review is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Narrowed as its function is in
this manner, the judiciary does not pass upon questions of wisdom, justice
or expediency of legislation. More thatn that, courts accord the
presumption of constitutionality to legislative enactments, not only because
the legislature is presumed to abide by the Constitution but also becuase the
judiciary in the determination of actual cases and controversies must reflect
the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the
government.
The "allocation of constituional boundaries" is a task that this Court must
perfomr under the Constitution. Moreowever, as held in a recent
case, 12 "(t)he political question doctrine neither interposes an obstacle to
judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot abdicate
that obligation mandated by the 1987 Constitution, although said provision
by no means does away with kthe applicability of the principle in
appropriate cases." 13
36
The Court is thus of the considered view that it has jurisdiction over the present controversy for the purpose of
determining the scope and extent of the power of the Senate Blue Ribbon Committee to conduct inquiries into
private affirs in purported aid of legislation.
Coming to the specific issues raised in this case, petitioners contend that (1) the Senate Blue Ribbon Committee's
inquiry has no valid legislative purpose, i.e., it is not done in aid of legislation; (2) the sale or disposition of hte
Romualdez corporations is a "purely private transaction" which is beyond the power of the Senate Blue Ribbon
Committee to inquire into; and (3) the inquiry violates their right to due process.
The 1987 Constition expressly recognizes the power of both houses of Congress to conduct inquiries in aid of
legislation. 14
Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective
committee may conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected. 15
The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or
unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein,
the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the
rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the rights of
persons under the Bill of Rights must be respected, including the right to due process and the right not to be
compelled to testify against one's self.
The power to conduct formal inquiries or investigations in specifically provided for in Sec. 1 of the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the implementation or
re-examination of any law or in connection with any proposed legislation or the formulation of future legislation.
They may also extend to any and all matters vested by the Constitution in Congress and/or in the Seante alone.
As held in Jean L. Arnault vs. Leon Nazareno, et al., 16
the inquiry, to be within the
jurisdiction of the legislative body making it, must be material or necessary
to the exervise of a power in it vested by the Constitution, such as to
legislate or to expel a member.
Under Sec. 4 of the aforementioned Rules, the Senate may refer to any
committee or committees any speech or resolution filed by any Senator
which in tis judgment requires an appropriate inquiry in aid of legislation.
In order therefore to ascertain the character or nature of an inquiry, resort
must be had to the speech or resolution under which such an inquiry is
proposed to be made.
A perusal of the speech of Senator Enrile reveals that he (Senator Enrile)
made a statement which was published in various newspapers on 2
September 1988 accusing Mr. Ricardo "Baby" Lopa of "having taken over
the FMMC Group of Companies." As a consequence thereof, Mr. Lopa
wrote a letter to Senator Enrile on 4 September 1988 categorically denying
that he had "taken over " the FMMC Group of Companies; that former
PCGG Chairman Ramon Diaz himself categorically stated in a telecast
interview by Mr. Luis Beltran on Channel 7 on 31 August 1988 that there
has been no takeover by him (Lopa); and that theses repeated allegations of
a "takeover" on his (Lopa's) part of FMMC are baseless as they are
malicious.

The Lopa reply prompted Senator Enrile, during the session of the Senate
on 13 September 1988, to avail of the privilege hour, 17 so that he could
repond to the said Lopa letter, and also to vindicate his reputation as a
Member of the Senate of the Philippines, considering the claim of Mr.
Lopa that his (Enrile's) charges that he (Lopa) had taken over the FMMC
Group of Companies are "baseless" and "malicious." Thus, in his
speech, 18Senator Enrile said, among others, as follows:
Mr. President, I rise this afternnon on a matter of personal privilege; the
privilege being that I received, Mr. President, a letter dated September 4,
1988, signed by Mr. ricardo A. Lopa, a.k.a. or Baby Lopa, wherein he
denied categorically that he has taken over the First Manila Management
Group of Companies which includes SOLOIL Incorporated.
xxx xxxx xxx
In answer to Mr. Lopa, I will quote pertinent portions from an Official
Memorandum to the Presidential Commission of Good Government written
and signed by former Governor, now Congressman Jose Ramirez, in his
capacity as head of the PCGG Task Force for Region VIII. In his
memorandum dated July 3, 1986, then Governor Ramirez stated that when
he and the members of his task force sought to serve a sequestration order
on the management of SOLOIL in Tanauan, Leyte, management officials
assured him that relatives of the President of the Philippines were
personally discussing and representing SOLOIL so that the order of
sequestration would be lifted and that the new owner was Mr. Ricardo A.
Lopa.
I will quote the pertinent portions in the Ramire's memorandum.
The first paragraph of the memorandum reads as follows and I quote, Mr.
President:
"Our sequestration work of SOLOIL in Tanauan, Leyte was not heeded by
management because they said another representation was being made to
this Commission for the ventual lifting of our sequestrationorder. They
even assured us that Mr. Ricardo Lopa and Peping Cojunangco were
personally discussing and representing SOLOIL, so the order of
sequestration will finally be lifted. While we attempted to carry on our
order, management refused to cooperate and vehemently turned down our
request to make available to us the records of the company. In fact it was
obviously clear that they will meet us with forcethe moment we insist on
doing normally our assigned task. In view of the impending threat, and to
avoid any untoward incident we decided to temporarily suspend our work
until there is a more categorical stand of this Commission in view of the
seemingly influential represetation being made by SOLOIL for us not to
continue our work."
Another pertinent portion of the same memorandum is paragraph five,
which reads as follows, and I quote Mr. President:
"The President, Mr. Gamboa, this is, I understand, the President of
SOLOIL, and the Plant Superintendent, Mr. Jimenez including their chief
counsel, Atty. Mandong Mendiola are now saying that there have been
divestment, and that the new owner is now Mr. Ricardo Lopa who
according to them, is the brother-in-law of the President. They even went
further by telling us that even Peping Cojuangco who we know is the
brother of her excellency is also interested in the ownership and
management of SOLOIL. When he demanded for supporting papers which
will indicate aforesaid divestment, Messrs. Gamboa, Jimenez and Mendiola
refused vehemently to submit these papers to us, instead they said it will be
submitted directly to this Commission. To our mind their continuous
dropping of names is not good for this Commission and even to the
37
President if our dersire is to achieve respectability and stability of the
government."
The contents of the memorandum of then Governor and now Congressman
Jose Ramirez were personally confirmed by him in a news interview last
September 7, 1988.
xxx xxxx xxx
Also relevant to this case, Mr. President, is a letter of Mr. Ricardo Lopa
himself in August 11, 1988 issue of the newspaper Malaya headlined "On
Alleged Takeover of Romualdez Firms."
Mr. Lopa states in the last paragraph of the published letter and I quote
him:
12. As of this writing, the sales agreement is under review by the PCGG
solely to determine the appropriate price. The sale of these companies and
our prior rigtht to requires them have never been at issue.
Perhaps I could not make it any clearer to Mr. Lopa that I was not really
making baseless and malicious statements.
Senator Enrile concluded his privilege speech in the following tenor:
Mr. President, it may be worthwhile for the Senate to look into the possible
violation of the law in the case particularly with regard to Republic Act No.
3019, the Anti-Graft and Corrupt Practices Act, Section 5 of which reads as
follows and I quote:
Sec. 5. Prohibition on certain relatives. — It shall be unlawful for the
spouse or for nay relative, by consanguinity or affinity, within the third
civil degree, of the President of the Philippines, the Vice-President of the
Philippines, the President of the Senate, or the Speaker of the House of
Representatives, to intervene directly or indirectly, in any business,
transaction, contract or application with the Government: Provided, that
this section shall not apply to any person who prior to the assumption of
office of any of the above officials to whom he is related, has been already
dealing with the Government along the same line of business, nor to any
transaction, contract or application filed by him for approval of which is
not discretionary on the part of the officials concerned but depends upon
compliance with requisites provided by law, nor to any act lawfully
performed in an official capacity or in the exercise of a profession.
Mr. President, I have done duty to this Senate and to myself. I leave it to
this august Body to make its own conclusion.
Verily, the speech of Senator Enrile contained no suggestion of
contemplated legislation; he merely called upon the Senate to look into a
possible violation of Sec. 5 of RA No. 3019, otherwise known as "The
Anti-Graft and Corrupt Practices Act." I other words, the purpose of the
inquiry to be conducted by respondent Blue Ribbon commitee was to find
out whether or not the relatives of President Aquino, particularly Mr.
ricardo Lopa, had violated the law in connection with the alleged sale of
the 36 or 39 corporations belonging to Benjamin "Kokoy" Romualdez to
the Lopaa Group. There appears to be, therefore, no intended legislation
involved.
The Court is also not impressed with the respondent Committee's argument
that the questioned inquiry is to be conducted pursuant to Senate
Resolution No. 212. The said resolution was introduced by Senator Jose D.
Lina in view of the representaions made by leaders of school youth,

community groups and youth of non-governmental organizations to the
Senate Committee on Youth and Sports Development, to look into the
charges against the PCGG filed by three (3) stockholders of Oriental
petroleum, i.e., that it has adopted a "get-rich-quick scheme" for its
nominee-directors in a sequestered oil exploration firm.The pertinent
portion of Senate Resolution No. 212 reads as follows:
xxx xxx xxx
WHEREAS, recent developments have shown that no less than the
Solicitor-General has stated that the PCGG Chairman and at least three
Commissioners should resign and that the agency should rid itself of
"ineptness, incompetence and corruption" and that the Sandiganbayan has
reportedly ordered the PCGG to answer charges filed by three stockholders
of Oriental Petroleum that it has adopted a "get-rich-quick scheme" for its
nominee-directors in a sequestered oil exploration firm;
WHEREAS, leaders of school youth, community groups and youth of
non-governmental organization had made representations to the Senate
Committee on Youth and Sports Development to look into the charges
against the PCGG since said agency is a symbol of the changes expected by
the people when the EDSA revolution took place and that the ill-gotten
wealth to be recovered will fund priority projects which will benefit our
people such as CARP, free education in the elementary and secondary
levels reforestration, and employment generation for rural and urban
workers;
WHEREAS, the government and the present leadeship must demonstrate in
their public and private lives integrity, honor and efficient management of
government services lest our youth become disillusioned and lose hope and
return to an Idelogy and form of government which is repugnant to true
freedom, democratic participation and human rights: Now, therefore, be it.
Resolved by the Senate, That the activities of the Presidential Commission
on Good Government be investigated by the appropriate Committee in
connection with the implementation of Section 26, Article XVIII of the
Constitution. 19
Thus, the inquiry under Senate Resolution No. 212 is to look into the charges against the PCGG filed by the three (3)
stockholders of Oriental Petroleum in connection with the implementation of Section 26, Article XVIII of the
Constitution.
It cannot, therefore, be said that the contemplated inquiry on the subject of the privilege speech of Senator Juan
Ponce Enrile, i.e., the alleged sale of the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez to the
Lopa Group is to be conducted pursuant to Senate Resolution No. 212 because, firstly, Senator Enrile did not indict
the PCGG, and, secondly, neither Mr. Ricardo Lopa nor the herein petitioners are connected with the government
but are private citizens.
It appeals, therefore, that the contemplated inquiry by respondent Committee is not really "in aid of legislation"
becuase it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to find
out whether or not the ralatives of the President or Mr. Ricardo Lopa had violated Section 5 RA No. 3019, the
"Anti-Graft and Corrupt Practices Act", a matter that appears more within the province of the courts rather than of
the legislature. Besides, the Court may take judicial notice that Mr. Ricardo Lopa died during the pendency of this
case. In John T. Watkins vs. United States, 20
it was held held:
38
... The power of congress to conduct investigations in inherent in the
legislative process. That power is broad. it encompasses inquiries
concerning the administration of existing laws as well as proposed, or
possibly needed statutes. It includes surveys of defects in our
social,economic, or political system for the purpose of enabling Congress
to remedy them. It comprehends probes into departments of the Federal
Government to expose corruption, inefficiency or waste. But broad asis
this power of inquiry, it is not unlimited. There is no general authority to
expose the private affairs ofindividuals without justification in terms of the
functions of congress. This was freely conceded by Solicitor General in his
argument in this case. Nor is the Congress a law enforcement or trial
agency. These are functions of the executive and judicial departments of
government. No inquiry is an end in itself; it must be related to and in
furtherance of a legitimate task of Congress. Investigations conducted soly
for the personal aggrandizement of the investigators or to "punish" those
investigated are indefensible. (emphasis supplied)
It can not be overlooked that when respondent Committee decide to
conduct its investigation of the petitioners, the complaint in Civil No. 0035
had already been filed with the Sandiganbayan. A perusal of that complaint
shows that one of its principal causes of action against herein petitioners, as
defendants therein, is the alleged sale of the 36 (or 39) corporations
belonging to Benjamin "Kokoy" Romualdez. Since the issues in said
complaint had long been joined by the filing of petitioner's respective
answers thereto, the issue sought to be investigated by the respondent
Commitee is one over which jurisdiction had been acquired by the
Sandiganbayan. In short, the issue had been pre-empted by that court. To
allow the respondent Committee to conduct its own investigation of an
issue already before the Sandiganbayan would not only pose the possibility
of conflicting judgments betweena legislative commitee and a judicial
tribunal, but if the Committee's judgment were to be reached before that of
the Sandiganbayan, the possibility of its influence being made to bear on
the ultimate judgment of the Sandiganbayan can not be discounted.
In fine, for the rspondent Committee to probe and inquire into the same
justiciable controversy already before the Sandiganbayan, would be an
encroachment into the exclusive domain of judicial jurisdiction that had
much earlier set in. In Baremblatt vs. United States, 21 it was held that:
Broad as it is, the power is not, howevern, without limitations. Since
congress may only investigate into those areas in which it may potentially
legislate or appropriate, it cannot inquire into matters which are within the
exclusive province of one of the other branches of the government. Lacking
the judicial power given to the Judiciary, it cannot inquire into mattes that
are exclusively the concern of the Judiciary. Neither can it suplant the
Executive in what exclusively belongs to the Executive. ...
Now to another matter. It has been held that "a congressional committee's
right to inquire is 'subject to all relevant limitations placed by the
Constitution on governmental action,' including "'the relevant limitations of
the Bill of Rights'." 22
In another case —
... the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights. The
critical element is the exeistence of, and the weight to be ascribed to, the interest of the Congress in demanding
disclosures from an unwilling witness. We cannot simply assume, however, that every congressional investigation is
 39
justified by a public need that over-balances any private rights affected. To do so would be to abdicate the
SENATE OF THE PHILIPPINES, represented by FRANKLIN M.
responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably
DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in
encroah upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly. 23
his capacity as Senate President Pro Tempore, FRANCIS N.
PANGILINAN, in his capacity as Majority Leader, AQUILINO Q.
PIMENTEL, JR., in his capacity as Minority Leader, SENATORS
RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO,
JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO
ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON,
One of the basic rights guaranteed by the Constitution to an individual is the right against self-incrimination. PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL,
24
Thir right constured as the right to remain completely silent may be SERGIO OSMENA III, RALPH G. RECTO, and MAR
ROXAS, Petitioners,
availed of by the accused in a criminal case; but kit may be invoked by
vs.
other witnesses only as questions are asked of them.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and
alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in
This distinction was enunciated by the Court in Romeo Chavez vs. The his stead and in behalf of the President of the Philippines, Respondents.
Honorable Court of Appeals, et al. 25thus —
x-------------------------x
Petitioner, as accused, occupies a different tier of protection from an
ordinary witness. Whereas an ordinary witness may be compelled to take
the witness stand and claim the privilege as each question requiring an G.R. No. 169659 April 20, 2006
incriminating answer is hot at him, an accused may altother refuse to take
the witness stand and refuse to answer any all questions. BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep.
SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL
Moreover, this right of the accused is extended to respondents in MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep.
JOEL VIRADOR, COURAGE represented by FERDINAND GAITE,
administrative investigations but only if they partake of the nature of a
and COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL)
criminal proceeding or analogous to a criminal proceeding. In Galman vs.
represented by ATTY. REMEDIOS BALBIN, Petitioners,
Pamaran,26 the Court reiterated the doctrine in Cabal vs. Kapuanan (6
vs.
SCRA 1059) to illustrate the right of witnesses to invoke the right against
self-incrimination not only in criminal proceedings but also in all other EDUARDO ERMITA, in his capacity as Executive Secretary and
alter-ego of President Gloria Macapagal-Arroyo, Respondent.
types of suit

x-------------------------x
It was held that:

We did not therein state that since he is not an accused and the case is not a G.R. No. 169660 April 20, 2006
criminal case, Cabal cannot refuse to take the witness stand and testify, and
that he can invoke his right against self-incrimination only when a question FRANCISCO I. CHAVEZ, Petitioner,
which tends to elicit an answer that will incriminate him is propounded to vs.
him. Clearly then, it is not the characeter of the suit involved but the nature EDUARDO R. ERMITA, in his capacity as Executive Secretary,
of the proceedings that controls. The privilege has consistenly been held to AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense, and
extend to all proceedings sanctioned by law and to all cases in which GENEROSO S. SENGA, in his capacity as AFP Chief of
punishment is sought to be visited upon a witness, whether a party or not. Staff, Respondents.

We do not here modify these doctrines. If we presently rule that petitioners x-------------------------x
may not be compelled by the respondent Committee to appear, testify and
produce evidenc before it, it is only becuase we hold that the questioned G.R. No. 169667 April 20, 2006
inquiry is not in aid of legislation and, if pursued, would be violative of the
principle of separation of powers between the legislative and the judicial
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
departments of government, ordained by the Constitution.
vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive
WHEREFORE, the petition is GRANTED. The Court holds that, under the Secretary, Respondent.
facts, including the circumtance that petitioners are presently impleaded as
defendants in a case before the Sandiganbayan, which involves issues
x-------------------------x
intimately related to the subject of contemplated inquiry before the
respondet Committee, the respondent Senate Blue Ribbon Committee is
hereby enjoined from compelling the petitioners and intervenor to testify G.R. No. 169834 April 20, 2006
before it and produce evidence at the said inquiry.
PDP- LABAN, Petitioner,
SO ORDERED. vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
Fernan, C.J., Melencio-Herrera, Feliciano, Bidin, Griño-Aquino,
Medialdea, Regalado, Davide, Jr. and Romero, JJ., concur. x-------------------------x

G.R. No. 169777* April 20, 2006 G.R. No. 171246 April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO
R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL,
FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and
the INTEGRATED BAR FOR THE PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R.
ERMITA, Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state.
Even in the early history of republican thought, however, it has been
recognized that the head of government may keep certain information
confidential in pursuit of the public interest. Explaining the reason for
vesting executive power in only one magistrate, a distinguished delegate to
the U.S. Constitutional Convention said: "Decision, activity, secrecy, and
dispatch will generally characterize the proceedings of one man, in a much
more eminent degree than the proceedings of any greater number; and in
proportion as the number is increased, these qualities will be diminished." 1
History has been witness, however, to the fact that the power to withhold
information lends itself to abuse, hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that
the President has abused such power by issuing Executive Order No. 464
(E.O. 464) last September 28, 2005. They thus pray for its declaration as
null and void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition
that the issuance under review has come from a co-equal branch of
government, which thus entitles it to a strong presumption of
constitutionality. Once the challenged order is found to be indeed violative
of the Constitution, it is duty-bound to declare it so. For the Constitution,
being the highest expression of the sovereign will of the Filipino people,
must prevail over any issuance of the government that contravenes its
mandates.
In the exercise of its legislative power, the Senate of the Philippines,
through its various Senate Committees, conducts inquiries or investigations
in aid of legislation which call for, inter alia, the attendance of officials and
employees of the executive department, bureaus, and offices including
those employed in Government Owned and Controlled Corporations, the
Armed Forces of the Philippines (AFP), and the Philippine National Police
(PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole
issued invitations to various officials of the Executive Department for them
to appear on September 29, 2005 as resource speakers in a public hearing
on the railway project of the North Luzon Railways Corporation with the
China National Machinery and Equipment Group (hereinafter North Rail
Project). The public hearing was sparked by a privilege speech of Senator
Juan Ponce Enrile urging the Senate to investigate the alleged overpricing
and other unlawful provisions of the contract covering the North Rail
Project.
The Senate Committee on National Defense and Security likewise issued
invitations2 dated September 22, 2005 to the following officials of the AFP:
the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C.
Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga;
Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R.
40
Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q.
Quevedo; Assistant Superintendent of the Philippine Military Academy
(PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps
of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as
resource persons in a public hearing scheduled on September 28, 2005 on
the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr.,
delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or
has Opened a Can of Worms that Show Massive Electoral Fraud in the
Presidential Election of May 2005"; (2) Privilege Speech of Senator
Jinggoy E. Estrada delivered on July 26, 2005 entitled "The Philippines as
the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator
Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and Present
Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana
Consuelo Madrigal – Resolution Directing the Committee on National
Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in
the National Interest, on the Role of the Military in the So-called
"Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator
Biazon – Resolution Directing the Committee on National Defense and
Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping
of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005
was the AFP Chief of Staff, General Generoso S. Senga who, by
letter3 dated September 27, 2005, requested for its postponement "due to a
pressing operational situation that demands [his utmost personal attention"
while "some of the invited AFP officers are currently attending to other
urgent operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from
Executive Secretary Eduardo R. Ermita a letter4 dated September 27, 2005
"respectfully request[ing] for the postponement of the hearing [regarding
the NorthRail project] to which various officials of the Executive
Department have been invited" in order to "afford said officials ample time
and opportunity to study and prepare for the various issues so that they may
better enlighten the Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that
the Senators "are unable to accede to [his request]" as it "was sent
belatedly" and "[a]ll preparations and arrangements as well as notices to all
resource persons were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a
letter6 from the President of the North Luzon Railways Corporation Jose L.
Cortes, Jr. requesting that the hearing on the NorthRail project be
postponed or cancelled until a copy of the report of the UP Law Center on
the contract agreements relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring
Observance of the Principle of Separation of Powers, Adherence to the
Rule on Executive Privilege and Respect for the Rights of Public Officials
Appearing in Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes,"7 which, pursuant to Section 6
thereof, took effect immediately. The salient provisions of the Order are as
follows:
SECTION 1. Appearance by Heads of Departments Before Congress. – In
accordance with Article VI, Section 22 of the Constitution and to
implement the Constitutional provisions on the separation of powers
between co-equal branches of the government, all heads of departments of
the Executive Branch of the government shall secure the consent of the
President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the
President so states in writing, the appearance shall only be conducted in
executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
(a) Nature and Scope. - The rule of confidentiality based on executive
privilege is fundamental to the operation of government and rooted in the
separation of powers under the Constitution (Almonte vs. Vasquez, G.R.
No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of
Conduct and Ethical Standards for Public Officials and Employees
provides that Public Officials and Employees shall not use or divulge
confidential or classified information officially known to them by reason of
their office and not made available to the public to prejudice the public
interest.
Executive privilege covers all confidential or classified information
between the President and the public officers covered by this executive
order, including:
Conversations and correspondence between the President and the public
official covered by this executive order (Almonte vs. Vasquez G.R. No.
95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250,
9 July 2002);
Military, diplomatic and other national security matters which in the
interest of national security should not be divulged (Almonte vs. Vasquez,
G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of
treaties and executive agreements (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public
Estates Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. – The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the
department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such
other officers who in the judgment of the Chief of Staff are covered by the
executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent
or higher and such other officers who in the judgment of the Chief of the
PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the National
Security Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. – All
public officials enumerated in Section 2 (b) hereof shall secure prior
consent of the President prior to appearing before either House of Congress
41
to ensure the observance of the principle of separation of powers,
adherence to the rule on executive privilege and respect for the rights of
public officials appearing in inquiries in aid of legislation. (Emphasis and
underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from
Executive Secretary Ermita a copy of E.O. 464, and another
letter8 informing him "that officials of the Executive Department invited to
appear at the meeting [regarding the NorthRail project] will not be able to
attend the same without the consent of the President, pursuant to [E.O.
464]" and that "said officials have not secured the required consent from
the President." On even date which was also the scheduled date of the
hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator
Biazon, Chairperson of the Committee on National Defense and Security,
informing him "that per instruction of [President Arroyo], thru the
Secretary of National Defense, no officer of the [AFP] is authorized to
appear before any Senate or Congressional hearings without seeking a
written approval from the President" and "that no approval has been
granted by the President to any AFP officer to appear before the public
hearing of the Senate Committee on National Defense and Security
scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary Ermita and
Gen. Senga, the investigation scheduled by the Committee on National
Defense and Security pushed through, with only Col. Balutan and Brig.
Gen. Gudani among all the AFP officials invited attending.
For defying President Arroyo’s order barring military personnel from
testifying before legislative inquiries without her approval, Brig. Gen.
Gudani and Col. Balutan were relieved from their military posts and were
made to face court martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005,
Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in
response to the invitations sent to the following government officials: Light
Railway Transit Authority Administrator Melquiades Robles, Metro Rail
Transit Authority Administrator Roberto Lastimoso, Department of Justice
(DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal
Counsel Merceditas Gutierrez, Department of Transportation and
Communication (DOTC) Undersecretary Guiling Mamonding, DOTC
Secretary Leandro Mendoza, Philippine National Railways General
Manager Jose Serase II, Monetary Board Member Juanita Amatong, Bases
Conversion Development Authority Chairperson Gen. Narciso Abaya and
Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal
regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660,
and 169667, for certiorari and prohibition, were filed before this Court
challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of
Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano,
Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of
government employees, and Counsels for the Defense of Liberties
(CODAL), a group of lawyers dedicated to the promotion of justice,
democracy and peace, all claiming to have standing to file the suit because
of the transcendental importance of the issues they posed, pray, in their
petition that E.O. 464 be declared null and void for being unconstitutional;
that respondent Executive Secretary Ermita, in his capacity as Executive
Secretary and alter-ego of President Arroyo, be prohibited from imposing,
and threatening to impose sanctions on officials who appear before
Congress due to congressional summons. Additionally, petitioners claim
that E.O. 464 infringes on their rights and impedes them from fulfilling
their respective obligations. Thus, Bayan Muna alleges that E.O. 464

infringes on its right as a political party entitled to participate in
governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their
rights and duties as members of Congress to conduct investigation in aid of
legislation and conduct oversight functions in the implementation of laws;
Courage alleges that the tenure of its members in public office is predicated
on, and threatened by, their submission to the requirements of E.O. 464
should they be summoned by Congress; and CODAL alleges that its
members have a sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are threatened by the imposition
of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his
constitutional rights as a citizen, taxpayer and law practitioner, are affected
by the enforcement of E.O. 464, prays in his petition that E.O. 464 be
declared null and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG),
alleging that as a coalition of 17 legal resource non-governmental
organizations engaged in developmental lawyering and work with the poor
and marginalized sectors in different parts of the country, and as an
organization of citizens of the Philippines and a part of the general public,
it has legal standing to institute the petition to enforce its constitutional
right to information on matters of public concern, a right which was denied
to the public by E.O. 464,13 prays, that said order be declared null and void
for being unconstitutional and that respondent Executive Secretary Ermita
be ordered to cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it
has a vital interest in the resolution of the issue of the validity of E.O. 464
for it stands to suffer imminent and material injury, as it has already
sustained the same with its continued enforcement since it directly
interferes with and impedes the valid exercise of the Senate’s powers and
functions and conceals information of great public interest and concern,
filed its petition for certiorari and prohibition, docketed as G.R. No. 169777
and prays that E.O. 464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with
members duly elected into the Philippine Senate and House of
Representatives, filed a similar petition for certiorari and prohibition,
docketed as G.R. No. 169834, alleging that it is affected by the challenged
E.O. 464 because it hampers its legislative agenda to be implemented
through its members in Congress, particularly in the conduct of inquiries in
aid of legislation and transcendental issues need to be resolved to avert a
constitutional crisis between the executive and legislative branches of the
government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated
his invitation to Gen. Senga for him and other military officers to attend the
hearing on the alleged wiretapping scheduled on February 10, 2005. Gen.
Senga replied, however, by letter15 dated February 8, 2006, that "[p]ursuant
to Executive Order No. 464, th[e] Headquarters requested for a clearance
from the President to allow [them] to appear before the public hearing" and
that "they will attend once [their] request is approved by the President." As
none of those invited appeared, the hearing on February 10, 2006 was
cancelled.16
In another investigation conducted jointly by the Senate Committee on
Agriculture and Food and the Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under the Ginintuang
Masaganang Ani program of the Department of Agriculture (DA), several
Cabinet officials were invited to the hearings scheduled on October 5 and
26, November 24 and December 12, 2005 but most of them failed to attend,
DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose
Montes, Fertilizer and Pesticide Authority Executive Director Norlito R.
42
Gicana,17 and those from the Department of Budget and
Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press
Secretary and Presidential Spokesperson Ignacio R. Bunye, 19 DOJ
Secretary Raul M. Gonzalez20 and Department of Interior and Local
Government Undersecretary Marius P. Corpus21 communicated their
inability to attend due to lack of appropriate clearance from the President
pursuant to E.O. 464. During the February 13, 2005 budget hearing,
however, Secretary Bunye was allowed to attend by Executive Secretary
Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members
of the Board of Governors of the Integrated Bar of the Philippines, as
taxpayers, and the Integrated Bar of the Philippines as the official
organization of all Philippine lawyers, all invoking their constitutional right
to be informed on matters of public interest, filed their petition for
certiorari and prohibition, docketed as G.R. No. 171246, and pray that E.O.
464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order
enjoining respondents from implementing, enforcing, and observing E.O.
464.
In the oral arguments on the petitions conducted on February 21, 2006, the
following substantive issues were ventilated: (1) whether respondents
committed grave abuse of discretion in implementing E.O. 464 prior to its
publication in the Official Gazette or in a newspaper of general circulation;
and (2) whether E.O. 464 violates the following provisions of the
Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1,
Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16.
The procedural issue of whether there is an actual case or controversy that
calls for judicial review was not taken up; instead, the parties were
instructed to discuss it in their respective memoranda.
After the conclusion of the oral arguments, the parties were directed to
submit their respective memoranda, paying particular attention to the
following propositions: (1) that E.O. 464 is, on its face, unconstitutional;
and (2) assuming that it is not, it is unconstitutional as applied in four
instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail
investigation (c) the Wiretapping activity of the ISAFP; and (d) the
investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their
memoranda on March 7, 2006, while those in G.R. No. 169667 25 and G.R.
No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners in
G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for
extension to file memorandum27 was granted, subsequently filed a
manifestation28 dated March 14, 2006 that it would no longer file its
memorandum in the interest of having the issues resolved soonest,
prompting this Court to issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following constitutional
provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132

Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in
their consolidated memorandum38 on March 13, 2006 for the dismissal of
the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the people to information on
matters of public concern; and
3. Whether respondents have committed grave abuse of discretion when
they implemented E.O. 464 prior to its publication in a newspaper of
general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O. 464,
ascertainment of whether the requisites for a valid exercise of the Court’s
power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person
challenging the act must have standing to challenge the validity of the
subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue
of constitutionality must be the very lis mota of the case. 39
Except with respect to the requisites of standing and existence of an actual
case or controversy where the disagreement between the parties lies,
discussion of the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in
G.R. Nos. 169659, 169660 and 169667 make it clear that they, adverting to
the non-appearance of several officials of the executive department in the
investigations called by the different committees of the Senate, were
brought to vindicate the constitutional duty of the Senate or its different
committees to conduct inquiry in aid of legislation or in the exercise of its
oversight functions. They maintain that Representatives Ocampo et al. have
not shown any specific prerogative, power, and privilege of the House of
Representatives which had been effectively impaired by E.O. 464, there
being no mention of any investigation called by the House of
Representatives or any of its committees which was aborted due to the
implementation of E.O. 464.
43
As for Bayan Muna’s alleged interest as a party-list representing the
marginalized and underrepresented, and that of the other petitioner groups
and individuals who profess to have standing as advocates and defenders of
the Constitution, respondents contend that such interest falls short of that
required to confer standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not
claim an interest as a taxpayer for the implementation of E.O. 464 does not
involve the exercise of taxing or spending power.41
With regard to the petition filed by the Senate, respondents argue that in the
absence of a personal or direct injury by reason of the issuance of E.O. 464,
the Senate and its individual members are not the proper parties to assail
the constitutionality of E.O. 464.
Invoking this Court’s ruling in National Economic Protectionism
Association v. Ongpin42 and Valmonte v. Philippine Charity Sweepstakes
Office,43 respondents assert that to be considered a proper party, one must
have a personal and substantial interest in the case, such that he has
sustained or will sustain direct injury due to the enforcement of E.O. 464. 44
That the Senate of the Philippines has a fundamental right essential not
only for intelligent public decision-making in a democratic system, but
more especially for sound legislation45 is not disputed. E.O. 464, however,
allegedly stifles the ability of the members of Congress to access
information that is crucial to law-making.46 Verily, the Senate, including its
individual members, has a substantial and direct interest over the outcome
of the controversy and is the proper party to assail the constitutionality of
E.O. 464. Indeed, legislators have standing to maintain inviolate the
prerogative, powers and privileges vested by the Constitution in their office
and are allowed to sue to question the validity of any official action which
they claim infringes their prerogatives as legislators. 47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna),
Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin
Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza
(Gabriela) are allowed to sue to question the constitutionality of E.O. 464,
the absence of any claim that an investigation called by the House of
Representatives or any of its committees was aborted due to the
implementation of E.O. 464 notwithstanding, it being sufficient that a claim
is made that E.O. 464 infringes on their constitutional rights and duties as
members of Congress to conduct investigation in aid of legislation and
conduct oversight functions in the implementation of laws.
The national political party, Bayan Muna, likewise meets the standing
requirement as it obtained three seats in the House of Representatives in the
2004 elections and is, therefore, entitled to participate in the legislative
process consonant with the declared policy underlying the party list system
of affording citizens belonging to marginalized and underrepresented
sectors, organizations and parties who lack well-defined political
constituencies to contribute to the formulation and enactment of legislation
that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to
file their petitions, passing on the standing of their co-petitioners Courage
and Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an
organization of citizens, and the incumbent members of the IBP Board of
Governors and the IBP in behalf of its lawyer members,50 invoke their
constitutional right to information on matters of public concern, asserting
that the right to information, curtailed and violated by E.O. 464, is essential
to the effective exercise of other constitutional rights 51 and to the

maintenance of the balance of power among the three branches of the
government through the principle of checks and balances. 52
It is well-settled that when suing as a citizen, the interest of the petitioner in
assailing the constitutionality of laws, presidential decrees, orders, and
other regulations, must be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal
standing in view of the transcendental issues raised in its petition which
this Court needs to resolve in order to avert a constitutional crisis. For it to
be accorded standing on the ground of transcendental importance, however,
it must establish (1) the character of the funds (that it is public) or other
assets involved in the case, (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government, and (3) the lack of any party with a
more direct and specific interest in raising the questions being raised. 54 The
first and last determinants not being present as no public funds or assets are
involved and petitioners in G.R. Nos. 169777 and 169659 have direct and
specific interests in the resolution of the controversy, petitioner PDP-Laban
is bereft of standing to file its petition. Its allegation that E.O. 464 hampers
its legislative agenda is vague and uncertain, and at best is only a
"generalized interest" which it shares with the rest of the political parties.
Concrete injury, whether actual or threatened, is that indispensable element
of a dispute which serves in part to cast it in a form traditionally capable of
judicial resolution.55 In fine, PDP-Laban’s alleged interest as a political
party does not suffice to clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the
executive officials invited by the Senate to its hearings after the issuance of
E.O. 464, particularly those on the NorthRail project and the wiretapping
controversy.
Respondents counter that there is no case or controversy, there being no
showing that President Arroyo has actually withheld her consent or
prohibited the appearance of the invited officials.56 These officials, they
claim, merely communicated to the Senate that they have not yet secured
the consent of the President, not that the President prohibited their
attendance.57 Specifically with regard to the AFP officers who did not
attend the hearing on September 28, 2005, respondents claim that the
instruction not to attend without the President’s consent was based on its
role as Commander-in-Chief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded
apprehension that the President will abuse its power of preventing the
appearance of officials before Congress, and that such apprehension is not
sufficient for challenging the validity of E.O. 464.
The Court finds respondents’ assertion that the President has not withheld
her consent or prohibited the appearance of the officials concerned
immaterial in determining the existence of an actual case or controversy
insofar as E.O. 464 is concerned. For E.O. 464 does not require either a
deliberate withholding of consent or an express prohibition issuing from
the President in order to bar officials from appearing before Congress.
As the implementation of the challenged order has already resulted in the
absence of officials invited to the hearings of petitioner Senate of the
Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be sheer
44
abandonment of duty if this Court would now refrain from passing on the
constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials
before Congress, deprives Congress of the information in the possession of
these officials. To resolve the question of whether such withholding of
information violates the Constitution, consideration of the general power of
Congress to obtain information, otherwise known as the power of inquiry,
is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of
Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected.
(Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973
Constitution except that, in the latter, it vests the power of inquiry in the
unicameral legislature established therein – the Batasang Pambansa – and
its committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in
Arnault v. Nazareno,58 a case decided in 1950 under that Constitution, the
Court already recognized that the power of inquiry is inherent in the power
to legislate.
Arnault involved a Senate investigation of the reportedly anomalous
purchase of the Buenavista and Tambobong Estates by the Rural Progress
Administration. Arnault, who was considered a leading witness in the
controversy, was called to testify thereon by the Senate. On account of his
refusal to answer the questions of the senators on an important point, he
was, by resolution of the Senate, detained for contempt. Upholding the
Senate’s power to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing
either House of Congress with power to make investigations and exact
testimony to the end that it may exercise its legislative functions advisedly
and effectively, such power is so far incidental to the legislative function as
to be implied. In other words, the power of inquiry – with process to
enforce it – is an essential and appropriate auxiliary to the legislative
function. A legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body does not itself
possess the requisite information – which is not infrequently true – recourse
must be had to others who do possess it. Experience has shown that mere
requests for such information are often unavailing, and also that
information which is volunteered is not always accurate or complete; so
some means of compulsion is essential to obtain what is needed. 59 . . .
(Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the
executive branch may be deduced from the same case. The power of
inquiry, the Court therein ruled, is co-extensive with the power to
legislate.60 The matters which may be a proper subject of legislation and
those which may be a proper subject of investigation are one. It follows

that the operation of government, being a legitimate subject for legislation,
is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper exercise of the power of
inquiry. Besides being related to the expenditure of public funds of which
Congress is the guardian, the transaction, the Court held, "also involved
government agencies created by Congress and officers whose positions it is
within the power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive
branch, it would be incongruous to hold that the power of inquiry does not
extend to executive officials who are the most familiar with and informed
on executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it,"
is grounded on the necessity of information in the legislative process. If the
information possessed by executive officials on the operation of their
offices is necessary for wise legislation on that subject, by parity of
reasoning, Congress has the right to that information and the power to
compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy
era," however, the right of Congress to conduct inquiries in aid of
legislation is, in theory, no less susceptible to abuse than executive or
judicial power. It may thus be subjected to judicial review pursuant to the
Court’s certiorari powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 61 the
inquiry itself might not properly be in aid of legislation, and thus beyond
the constitutional power of Congress. Such inquiry could not usurp judicial
functions. Parenthetically, one possible way for Congress to avoid such a
result as occurred in Bengzon is to indicate in its invitations to the public
officials concerned, or to any person for that matter, the possible needed
statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the
questions relative to and in furtherance thereof, there would be less room
for speculation on the part of the person invited on whether the inquiry is in
aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe
the legislative power of inquiry. The provision requires that the inquiry be
done in accordance with the Senate or House’s duly published rules of
procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also
mandates that the rights of persons appearing in or affected by such
inquiries be respected, an imposition that obligates Congress to adhere to
the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper
suit filed by the persons affected, even if they belong to the executive
branch. Nonetheless, there may be exceptional circumstances, none
appearing to obtain at present, wherein a clear pattern of abuse of the
legislative power of inquiry might be established, resulting in palpable
violations of the rights guaranteed to members of the executive department
under the Bill of Rights. In such instances, depending on the particulars of
each case, attempts by the Executive Branch to forestall these abuses may
be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which exemptions fall under the rubric
of "executive privilege." Since this term figures prominently in the
challenged order, it being mentioned in its provisions, its preambular
45
clauses,62 and in its very title, a discussion of executive privilege is crucial
for determining the constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been
used even prior to the promulgation of the 1986 Constitution. 63 Being of
American origin, it is best understood in light of how it has been defined
and used in the legal literature of the United States.
Schwartz defines executive privilege as "the power of the Government to
withhold information from the public, the courts, and the
Congress."64 Similarly, Rozell defines it as "the right of the President and
high-level executive branch officers to withhold information from
Congress, the courts, and ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has
encompassed claims of varying kinds.67Tribe, in fact, comments that while
it is customary to employ the phrase "executive privilege," it may be more
accurate to speak of executive privileges "since presidential refusals to
furnish information may be actuated by any of at least three distinct kinds
of considerations, and may be asserted, with differing degrees of success,
in the context of either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege
invoked by U.S. Presidents, beginning with Washington, on the ground that
the information is of such nature that its disclosure would subvert crucial
military or diplomatic objectives. Another variety is the informer’s
privilege, or the privilege of the Government not to disclose the identity of
persons who furnish information of violations of law to officers charged
with the enforcement of that law. Finally, a generic privilege for internal
deliberations has been said to attach to intragovernmental documents
reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies
are formulated. 68
Tribe’s comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a
variety of privileges to resist disclosure of information the confidentiality
of which they felt was crucial to fulfillment of the unique role and
responsibilities of the executive branch of our government. Courts ruled
early that the executive had a right to withhold documents that might reveal
military or state secrets. The courts have also granted the executive a right
to withhold the identity of government informers in some circumstances
and a qualified right to withhold information related to pending
investigations. x x x"69 (Emphasis and underscoring supplied)
The entry in Black’s Law Dictionary on "executive privilege" is similarly
instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers,
exempts the executive from disclosure requirements applicable to the
ordinary citizen or organization where such exemption is necessary to the
discharge of highly important executive responsibilities involved in
maintaining governmental operations, and extends not only to military and
diplomatic secrets but also to documents integral to an appropriate exercise
of the executive’ domestic decisional and policy making functions, that is,
those documents reflecting the frank expression necessary in
intra-governmental advisory and deliberative communications.70 (Emphasis
and underscoring supplied)

That a type of information is recognized as privileged does not, however,
necessarily mean that it would be considered privileged in all instances. For
in determining the validity of a claim of privilege, the question that must be
asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a
given procedural setting.71
The leading case on executive privilege in the United States is U.S. v.
Nixon, 72 decided in 1974. In issue in that case was the validity of President
Nixon’s claim of executive privilege against a subpoena issued by a district
court requiring the production of certain tapes and documents relating to
the Watergate investigations. The claim of privilege was based on the
President’s general interest in the confidentiality of his conversations and
correspondence. The U.S. Court held that while there is no explicit
reference to a privilege of confidentiality in the U.S. Constitution, it is
constitutionally based to the extent that it relates to the effective discharge
of a President’s powers. The Court, nonetheless, rejected the President’s
claim of privilege, ruling that the privilege must be balanced against the
public interest in the fair administration of criminal justice. Notably, the
Court was careful to clarify that it was not there addressing the issue of
claims of privilege in a civil litigation or against congressional demands for
information.
Cases in the U.S. which involve claims of executive privilege against
Congress are rare.73 Despite frequent assertion of the privilege to deny
information to Congress, beginning with President Washington’s refusal to
turn over treaty negotiation records to the House of Representatives, the
U.S. Supreme Court has never adjudicated the issue. 74 However, the U.S.
Court of Appeals for the District of Columbia Circuit, in a case decided
earlier in the same year as Nixon, recognized the President’s privilege over
his conversations against a congressional subpoena. 75 Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon, the Court
of Appeals weighed the public interest protected by the claim of privilege
against the interest that would be served by disclosure to the Committee.
Ruling that the balance favored the President, the Court declined to enforce
the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by
this Court in Almonte v. Vasquez.77Almonte used the term in reference to
the same privilege subject of Nixon. It quoted the following portion of the
Nixon decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations
and correspondences, like the claim of confidentiality of judicial
deliberations, for example, has all the values to which we accord deference
for the privacy of all citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making. A President and those who
assist him must be free to explore alternatives in the process of shaping
policies and making decisions and to do so in a way many would be
unwilling to express except privately. These are the considerations
justifying a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and inextricably
rooted in the separation of powers under the Constitution x x x " (Emphasis
and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman
against the therein petitioners. It did not involve, as expressly stated in the
decision, the right of the people to information. 78 Nonetheless, the Court
recognized that there are certain types of information which the
government may withhold from the public, thus acknowledging, in
substance if not in name, that executive privilege may be claimed against
citizens’ demands for information.
46
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the
common law holding that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and
other national security matters."80 The same case held that closed-door
Cabinet meetings are also a recognized limitation on the right to
information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the
right to information does not extend to matters recognized as "privileged
information under the separation of powers,"82 by which the Court meant
Presidential conversations, correspondences, and discussions in
closed-door Cabinet meetings. It also held that information on military and
diplomatic secrets and those affecting national security, and information on
investigations of crimes by law enforcement agencies before the
prosecution of the accused were exempted from the right to information.
From the above discussion on the meaning and scope of executive privilege,
both in the United States and in this jurisdiction, a clear principle emerges.
Executive privilege, whether asserted against Congress, the courts, or the
public, is recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional concept, a
claim thereof may be valid or not depending on the ground invoked to
justify it and the context in which it is made. Noticeably absent is any
recognition that executive officials are exempt from the duty to disclose
information by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that the presumption
inclines heavily against executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by
them to secure the consent of the President prior to appearing before
Congress. There are significant differences between the two provisions,
however, which constrain this Court to discuss the validity of these
provisions separately.
Section 1 specifically applies to department heads. It does not, unlike
Section 3, require a prior determination by any official whether they are
covered by E.O. 464. The President herself has, through the challenged
order, made the determination that they are. Further, unlike also Section 3,
the coverage of department heads under Section 1 is not made to depend on
the department heads’ possession of any information which might be
covered by executive privilege. In fact, in marked contrast to Section 3
vis-à-vis Section 2, there is no reference to executive privilege at all.
Rather, the required prior consent under Section 1 is grounded on Article
VI, Section 22 of the Constitution on what has been referred to as the
question hour.
SECTION 22. The heads of departments may upon their own initiative,
with the consent of the President, or upon the request of either House, as
the rules of each House shall provide, appear before and be heard by such
House on any matter pertaining to their departments. Written questions
shall be submitted to the President of the Senate or the Speaker of the
House of Representatives at least three days before their scheduled
appearance. Interpellations shall not be limited to written questions, but
may cover matters related thereto. When the security of the State or the
public interest so requires and the President so states in writing, the
appearance shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the
meaning of Section 22 of Article VI. Section 22 which provides for the
question hour must be interpreted vis-à-vis Section 21 which provides for
the power of either House of Congress to "conduct inquiries in aid of
legislation." As the following excerpt of the deliberations of the

Constitutional Commission shows, the framers were aware that these two
provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22
on the Question Hour] yesterday, I noticed that members of the Cabinet
cannot be compelled anymore to appear before the House of
Representatives or before the Senate. I have a particular problem in this
regard, Madam President, because in our experience in the Regular
Batasang Pambansa – as the Gentleman himself has experienced in the
interim Batasang Pambansa – one of the most competent inputs that we can
put in our committee deliberations, either in aid of legislation or in
congressional investigations, is the testimonies of Cabinet ministers. We
usually invite them, but if they do not come and it is a congressional
investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when
he said that the fact that the Cabinet ministers may refuse to come to the
House of Representatives or the Senate [when requested under Section 22]
does not mean that they need not come when they are invited or
subpoenaed by the committee of either House when it comes to inquiries in
aid of legislation or congressional investigation. According to
Commissioner Suarez, that is allowed and their presence can be had under
Section 21. Does the gentleman confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20
refers only to what was originally the Question Hour, whereas, Section 21
would refer specifically to inquiries in aid of legislation, under which
anybody for that matter, may be summoned and if he refuses, he can be
held in contempt of the House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the
question hour, it was compulsory in inquiries in aid of legislation. The
reference to Commissioner Suarez bears noting, he being one of the
proponents of the amendment to make the appearance of department heads
discretionary in the question hour.
So clearly was this distinction conveyed to the members of the Commission
that the Committee on Style, precisely in recognition of this distinction,
later moved the provision on question hour from its original position as
Section 20 in the original draft down to Section 31, far from the provision
on inquiries in aid of legislation. This gave rise to the following exchange
during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the
Committee on Style] We now go, Mr. Presiding Officer, to the Article on
Legislative and may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction
to the Question Hour. I propose that instead of putting it as Section 31, it
should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding
Officer.
47
MR. MAAMBONG. Actually, we considered that previously when we
sequenced this but we reasoned that in Section 21, which is Legislative
Inquiry, it is actually a power of Congress in terms of its own lawmaking;
whereas, a Question Hour is not actually a power in terms of its own
lawmaking power because in Legislative Inquiry, it is in aid of legislation.
And so we put Question Hour as Section 31. I hope Commissioner Davide
will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative
power, and it is precisely as a complement to or a supplement of the
Legislative Inquiry. The appearance of the members of Cabinet would be
very, very essential not only in the application of check and balance but
also, in effect, in aid of legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in
the suggestion of Commissioner Davide. In other words, we are accepting
that and so this Section 31 would now become Section 22. Would it be,
Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations, Commissioners
Davide and Maambong proceeded from the same assumption that these
provisions pertained to two different functions of the legislature. Both
Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the
question hour. Commissioner Davide’s only concern was that the two
provisions on these distinct powers be placed closely together, they being
complementary to each other. Neither Commissioner considered them as
identical functions of Congress.
The foregoing opinion was not the two Commissioners’ alone. From the
above-quoted exchange, Commissioner Maambong’s committee – the
Committee on Style – shared the view that the two provisions reflected
distinct functions of Congress. Commissioner Davide, on the other hand,
was speaking in his capacity as Chairman of the Committee on the
Legislative Department. His views may thus be presumed as representing
that of his Committee.
In the context of a parliamentary system of government, the "question
hour" has a definite meaning. It is a period of confrontation initiated by
Parliament to hold the Prime Minister and the other ministers accountable
for their acts and the operation of the government,85 corresponding to what
is known in Britain as the question period. There was a specific provision
for a question hour in the 1973 Constitution86 which made the appearance
of ministers mandatory. The same perfectly conformed to the parliamentary
system established by that Constitution, where the ministers are also
members of the legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is the
immediate accountability of the Prime Minister and the Cabinet to the
National Assembly. They shall be responsible to the National Assembly for
the program of government and shall determine the guidelines of national
policy. Unlike in the presidential system where the tenure of office of all
elected officials cannot be terminated before their term expired, the Prime
Minister and the Cabinet remain in office only as long as they enjoy the
confidence of the National Assembly. The moment this confidence is lost
the Prime Minister and the Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory nature of
such appearance during the question hour in the present Constitution so as
to conform more fully to a system of separation of powers.88 To that extent,
the question hour, as it is presently understood in this jurisdiction, departs

from the question period of the parliamentary system. That department
heads may not be required to appear in a question hour does not, however,
mean that the legislature is rendered powerless to elicit information from
them in all circumstances. In fact, in light of the absence of a mandatory
question period, the need to enforce Congress’ right to executive
information in the performance of its legislative function becomes more
imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject
under discussion, it is that the Congress has the right to obtain information
from any source – even from officials of departments and agencies in the
executive branch. In the United States there is, unlike the situation which
prevails in a parliamentary system such as that in Britain, a clear separation
between the legislative and executive branches. It is this very separation
that makes the congressional right to obtain information from the executive
so essential, if the functions of the Congress as the elected representatives
of the people are adequately to be carried out. The absence of close rapport
between the legislative and executive branches in this country, comparable
to those which exist under a parliamentary system, and the nonexistence in
the Congress of an institution such as the British question period have
perforce made reliance by the Congress upon its right to obtain information
from the executive essential, if it is intelligently to perform its legislative
tasks. Unless the Congress possesses the right to obtain executive
information, its power of oversight of administration in a system such as
ours becomes a power devoid of most of its practical content, since it
depends for its effectiveness solely upon information parceled out ex gratia
by the executive.89 (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to
each other, should not be considered as pertaining to the same power of
Congress. One specifically relates to the power to conduct inquiries in aid
of legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a question hour,
the objective of which is to obtain information in pursuit of Congress’
oversight function.
When Congress merely seeks to be informed on how department heads are
implementing the statutes which it has issued, its right to such information
is not as imperative as that of the President to whom, as Chief Executive,
such department heads must give a report of their performance as a matter
of duty. In such instances, Section 22, in keeping with the separation of
powers, states that Congress may only request their appearance.
Nonetheless, when the inquiry in which Congress requires their appearance
is "in aid of legislation" under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in pursuit of
legislation. This is consistent with the intent discerned from the
deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive
officials under Section 21 and the lack of it under Section 22 find their
basis in the principle of separation of powers. While the executive branch is
a co-equal branch of the legislature, it cannot frustrate the power of
Congress to legislate by refusing to comply with its demands for
information.
When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege.
They are not exempt by the mere fact that they are department heads. Only
one executive official may be exempted from this power — the President
on whom executive power is vested, hence, beyond the reach of Congress
except through the power of impeachment. It is based on her being the
48
highest official of the executive branch, and the due respect accorded to a
co-equal branch of government which is sanctioned by a long-standing
custom.
By the same token, members of the Supreme Court are also exempt from
this power of inquiry. Unlike the Presidency, judicial power is vested in a
collegial body; hence, each member thereof is exempt on the basis not only
of separation of powers but also on the fiscal autonomy and the
constitutional independence of the judiciary. This point is not in dispute, as
even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral
argument upon interpellation of the Chief Justice.
Having established the proper interpretation of Section 22, Article VI of the
Constitution, the Court now proceeds to pass on the constitutionality of
Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the
Constitution and the absence of any reference to inquiries in aid of
legislation, must be construed as limited in its application to appearances of
department heads in the question hour contemplated in the provision of said
Section 22 of Article VI. The reading is dictated by the basic rule of
construction that issuances must be interpreted, as much as possible, in a
way that will render it constitutional.
The requirement then to secure presidential consent under Section 1,
limited as it is only to appearances in the question hour, is valid on its face.
For under Section 22, Article VI of the Constitution, the appearance of
department heads in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads
in inquiries in aid of legislation. Congress is not bound in such instances to
respect the refusal of the department head to appear in such inquiry, unless
a valid claim of privilege is subsequently made, either by the President
herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section
2(b) to secure the consent of the President prior to appearing before either
house of Congress. The enumeration is broad. It covers all senior officials
of executive departments, all officers of the AFP and the PNP, and all
senior national security officials who, in the judgment of the heads of
offices designated in the same section (i.e. department heads, Chief of Staff
of the AFP, Chief of the PNP, and the National Security Adviser), are
"covered by the executive privilege."
The enumeration also includes such other officers as may be determined by
the President. Given the title of Section 2 — "Nature, Scope and Coverage
of Executive Privilege" —, it is evident that under the rule of ejusdem
generis, the determination by the President under this provision is intended
to be based on a similar finding of coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states
that executive privilege actually covers persons. Such is a misuse of the
doctrine. Executive privilege, as discussed above, is properly invoked in
relation to specific categories of information and not to categories of
persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature,
scope and coverage of executive privilege, the reference to persons being
"covered by the executive privilege" may be read as an abbreviated way of
saying that the person is in possession of information which is, in the
judgment of the head of office concerned, privileged as defined in Section

2(a). The Court shall thus proceed on the assumption that this is the
intention of the challenged order.
Upon a determination by the designated head of office or by the President
that an official is "covered by the executive privilege," such official is
subjected to the requirement that he first secure the consent of the President
prior to appearing before Congress. This requirement effectively bars the
appearance of the official concerned unless the same is permitted by the
President. The proviso allowing the President to give its consent means
nothing more than that the President may reverse a prohibition which
already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a
head of office, authorized by the President under E.O. 464, or by the
President herself, that such official is in possession of information that is
covered by executive privilege. This determination then becomes the basis
for the official’s not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure
to be present, such invocation must be construed as a declaration to
Congress that the President, or a head of office authorized by the President,
has determined that the requested information is privileged, and that the
President has not reversed such determination. Such declaration, however,
even without mentioning the term "executive privilege," amounts to an
implied claim that the information is being withheld by the executive
branch, by authority of the President, on the basis of executive privilege.
Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary
Ermita to Senate President Drilon illustrates the implied nature of the claim
of privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the
Whole regarding the Northrail Project of the North Luzon Railways
Corporation on 29 September 2005 at 10:00 a.m., please be informed that
officials of the Executive Department invited to appear at the meeting will
not be able to attend the same without the consent of the President,
pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring
Observance Of The Principle Of Separation Of Powers, Adherence To The
Rule On Executive Privilege And Respect For The Rights Of Public
Officials Appearing In Legislative Inquiries In Aid Of Legislation Under
The Constitution, And For Other Purposes". Said officials have not secured
the required consent from the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter
on which these officials are being requested to be resource persons falls
under the recognized grounds of the privilege to justify their absence. Nor
does it expressly state that in view of the lack of consent from the President
under E.O. 464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or
not. The letter assumes that the invited officials are covered by E.O. 464.
As explained earlier, however, to be covered by the order means that a
determination has been made, by the designated head of office or the
President, that the invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the letter that such
determination has been made, the same must be deemed implied.
Respecting the statement that the invited officials have not secured the
consent of the President, it only means that the President has not reversed
the standing prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that
the executive branch, either through the President or the heads of offices
49
authorized under E.O. 464, has made a determination that the information
required by the Senate is privileged, and that, at the time of writing, there
has been no contrary pronouncement from the President. In fine, an implied
claim of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of
whether executive privilege may be invoked against Congress, it is
gathered from Chavez v. PEA that certain information in the possession of
the executive may validly be claimed as privileged even against Congress.
Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is
privileged information rooted in the separation of powers. The information
does not cover Presidential conversations, correspondences, or discussions
during closed-door Cabinet meetings which, like internal-deliberations of
the Supreme Court and other collegiate courts, or executive sessions of
either house of Congress, are recognized as confidential. This kind of
information cannot be pried open by a co-equal branch of government. A
frank exchange of exploratory ideas and assessments, free from the glare of
publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential,
Legislative and Judicial power. This is not the situation in the instant
case.91 (Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by
the mere fact that it sanctions claims of executive privilege. This Court
must look further and assess the claim of privilege authorized by the Order
to determine whether it is valid.
While the validity of claims of privilege must be assessed on a case to case
basis, examining the ground invoked therefor and the particular
circumstances surrounding it, there is, in an implied claim of privilege, a
defect that renders it invalid per se. By its very nature, and as demonstrated
by the letter of respondent Executive Secretary quoted above, the implied
claim authorized by Section 3 of E.O. 464 is not accompanied by any
specific allegation of the basis thereof (e.g., whether the information
demanded involves military or diplomatic secrets, closed-door Cabinet
meetings, etc.). While Section 2(a) enumerates the types of information that
are covered by the privilege under the challenged order, Congress is left to
speculate as to which among them is being referred to by the executive.
The enumeration is not even intended to be comprehensive, but a mere
statement of what is included in the phrase "confidential or classified
information between the President and the public officers covered by this
executive order."
Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely declare that
the President, or an authorized head of office, has determined that it is so,
and that the President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested information
could be classified as privileged. That the message is couched in terms that,
on first impression, do not seem like a claim of privilege only makes it
more pernicious. It threatens to make Congress doubly blind to the question
of why the executive branch is not providing it with the information that it
has requested.
A claim of privilege, being a claim of exemption from an obligation to
disclose information, must, therefore, be clearly asserted. As U.S. v.
Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can
neither be claimed nor waived by a private party. It is not to be lightly
invoked. There must be a formal claim of privilege, lodged by the head of
the department which has control over the matter, after actual personal

consideration by that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet do so
without forcing a disclosure of the very thing the privilege is designed to
protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive
privilege, there is no way of determining whether it falls under one of the
traditional privileges, or whether, given the circumstances in which it is
made, it should be respected.93 These, in substance, were the same criteria
in assessing the claim of privilege asserted against the Ombudsman in
Almonte v. Vasquez94 and, more in point, against a committee of the
Senate in Senate Select Committee on Presidential Campaign Activities v.
Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm
resulting from disclosure impossible, thereby preventing the Court from
balancing such harm against plaintiffs’ needs to determine whether to
override any claims of privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform
this balancing operation. In stating its objection to claimant’s
interrogatories, government asserts, and nothing more, that the disclosures
sought by claimant would inhibit the free expression of opinion that
non-disclosure is designed to protect. The government has not shown – nor
even alleged – that those who evaluated claimant’s product were involved
in internal policymaking, generally, or in this particular instance. Privilege
cannot be set up by an unsupported claim. The facts upon which the
privilege is based must be established. To find these interrogatories
objectionable, this Court would have to assume that the evaluation and
classification of claimant’s products was a matter of internal policy
formulation, an assumption in which this Court is unwilling to indulge sua
sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an
agency must provide ‘precise and certain’ reasons for preserving the
confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific
designation and description of the documents within its scope as well as
precise and certain reasons for preserving their confidentiality. Without this
specificity, it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected. As the affidavit now
stands, the Court has little more than its sua sponte speculation with which
to weigh the applicability of the claim. An improperly asserted claim of
privilege is no claim of privilege. Therefore, despite the fact that a claim
was made by the proper executive as Reynolds requires, the Court can not
recognize the claim in the instant case because it is legally insufficient to
allow the Court to make a just and reasonable determination as to its
applicability. To recognize such a broad claim in which the Defendant has
given no precise or compelling reasons to shield these documents from
outside scrutiny, would make a farce of the whole procedure. 101 (Emphasis
and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no
less than a claim of privilege clearly stating the grounds therefor. Apropos
is the following ruling in McPhaul v. U.S:102
50
We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70
S. Ct. 724, is highly relevant to these questions. For it is as true here as it
was there, that ‘if (petitioner) had legitimate reasons for failing to produce
the records of the association, a decent respect for the House of
Representatives, by whose authority the subpoenas issued, would have
required that (he) state (his) reasons for noncompliance upon the return of
the writ. Such a statement would have given the Subcommittee an
opportunity to avoid the blocking of its inquiry by taking other appropriate
steps to obtain the records. ‘To deny the Committee the opportunity to
consider the objection or remedy is in itself a contempt of its authority and
an obstruction of its processes. His failure to make any such statement was
"a patent evasion of the duty of one summoned to produce papers before a
congressional committee[, and] cannot be condoned." (Emphasis and
underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the
reasons for the claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect.103 A useful analogy in
determining the requisite degree of particularity would be the privilege
against self-incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he declares
that in so doing he would incriminate himself – his say-so does not of itself
establish the hazard of incrimination. It is for the court to say whether his
silence is justified, and to require him to answer if ‘it clearly appears to the
court that he is mistaken.’ However, if the witness, upon interposing his
claim, were required to prove the hazard in the sense in which a claim is
usually required to be established in court, he would be compelled to
surrender the very protection which the privilege is designed to guarantee.
To sustain the privilege, it need only be evident from the implications of
the question, in the setting in which it is asked, that a responsive answer to
the question or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result." x x x (Emphasis and
underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section
2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead of
providing precise and certain reasons for the claim, it merely invokes E.O.
464, coupled with an announcement that the President has not given her
consent. It is woefully insufficient for Congress to determine whether the
withholding of information is justified under the circumstances of each
case. It severely frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides
guidelines, binding only on the heads of office mentioned in Section 2(b),
on what is covered by executive privilege. It does not purport to be
conclusive on the other branches of government. It may thus be construed
as a mere expression of opinion by the President regarding the nature and
scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the
challenged order the alleged unlawful delegation of authority to the heads
of offices in Section 2(b). Petitioner Senate of the Philippines, in particular,
cites the case of the United States where, so it claims, only the President
can assert executive privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head
of office determines that a certain information is privileged, such
determination is presumed to bear the President’s authority and has the
effect of prohibiting the official from appearing before Congress, subject
only to the express pronouncement of the President that it is allowing the

appearance of such official. These provisions thus allow the President to
authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional
nature of the privilege. Executive privilege, as already discussed, is
recognized with respect to information the confidential nature of which is
crucial to the fulfillment of the unique role and responsibilities of the
executive branch,105 or in those instances where exemption from disclosure
is necessary to the discharge of highly important executive
responsibilities.106 The doctrine of executive privilege is thus premised on
the fact that certain informations must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by
definition, an exemption from the obligation to disclose information, in this
case to Congress, the necessity must be of such high degree as to outweigh
the public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power to invoke the privilege. She
may of course authorize the Executive Secretary to invoke the privilege on
her behalf, in which case the Executive Secretary must state that the
authority is "By order of the President," which means that he personally
consulted with her. The privilege being an extraordinary power, it must be
wielded only by the highest official in the executive hierarchy. In other
words, the President may not authorize her subordinates to exercise such
power. There is even less reason to uphold such authorization in the instant
case where the authorization is not explicit but by mere silence. Section 3,
in relation to Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by Congress
on a matter which, in his own judgment, might be covered by executive
privilege, he must be afforded reasonable time to inform the President or
the Executive Secretary of the possible need for invoking the privilege.
This is necessary in order to provide the President or the Executive
Secretary with fair opportunity to consider whether the matter indeed calls
for a claim of executive privilege. If, after the lapse of that reasonable time,
neither the President nor the Executive Secretary invokes the privilege,
Congress is no longer bound to respect the failure of the official to appear
before Congress and may then opt to avail of the necessary legal means to
compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to
secure the consent of the President under Section 3 of E.O. 464 is to ensure
"respect for the rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected by Congress is an
echo from Article VI Section 21 of the Constitution mandating that "[t]he
rights of persons appearing in or affected by such inquiries shall be
respected."
In light of the above discussion of Section 3, it is clear that it is essentially
an authorization for implied claims of executive privilege, for which reason
it must be invalidated. That such authorization is partly motivated by the
need to ensure respect for such officials does not change the infirm nature
of the authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the
appearance of executive officials in the hearings conducted by it, and not
with the demands of citizens for information pursuant to their right to
information on matters of public concern. Petitioners are not amiss in
claiming, however, that what is involved in the present controversy is not
merely the legislative power of inquiry, but the right of the people to
information.
51
There are, it bears noting, clear distinctions between the right of Congress
to information which underlies the power of inquiry and the right of the
people to information on matters of public concern. For one, the demand of
a citizen for the production of documents pursuant to his right to
information does not have the same obligatory force as a subpoena duces
tecum issued by Congress. Neither does the right to information grant a
citizen the power to exact testimony from government officials. These
powers belong only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people,
it does not follow, except in a highly qualified sense, that in every exercise
of its power of inquiry, the people are exercising their right to information.
To the extent that investigations in aid of legislation are generally
conducted in public, however, any executive issuance tending to unduly
limit disclosures of information in such investigations necessarily deprives
the people of information which, being presumed to be in aid of legislation,
is presumed to be a matter of public concern. The citizens are thereby
denied access to information which they can use in formulating their own
opinions on the matter before Congress — opinions which they can then
communicate to their representatives and other government officials
through the various legal means allowed by their freedom of expression.
Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political discussion
be maintained to the end that the government may perceive and be
responsive to the people’s will. Yet, this open dialogue can be effective
only to the extent that the citizenry is informed and thus able to formulate
its will intelligently. Only when the participants in the discussion are aware
of the issues and have access to information relating thereto can such bear
fruit.107(Emphasis and underscoring supplied)
The impairment of the right of the people to information as a consequence
of E.O. 464 is, therefore, in the sense explained above, just as direct as its
violation of the legislature’s power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not
follow that the same is exempt from the need for publication. On the need
for publishing even those statutes that do not directly apply to people in
general, Tañada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general
albeit there are some that do not apply to them directly. An example is a
law granting citizenship to a particular individual, like a relative of
President Marcos who was decreed instant naturalization. It surely cannot
be said that such a law does not affect the public although it unquestionably
does not apply directly to all the people. The subject of such law is a matter
of public interest which any member of the body politic may question in
the political forums or, if he is a proper party, even in courts of
justice.108 (Emphasis and underscoring supplied)
Although the above statement was made in reference to statutes, logic
dictates that the challenged order must be covered by the publication
requirement. As explained above, E.O. 464 has a direct effect on the right
of the people to information on matters of public concern. It is, therefore, a
matter of public interest which members of the body politic may question
before this Court. Due process thus requires that the people should have
been apprised of this issuance before it was implemented.
Conclusion
 52

Congress undoubtedly has a right to information from the executive branch

whenever it is sought in aid of legislation. If the executive branch - versus -
withholds such information on the ground that it is privileged, it must so RICHARD GORDON, in his capacity as Chairman, and
assert it and state the reason therefor and why it must be respected. MEMBERS OF THE COMMITTEE ON GOVERNMENT
CORPORATIONS AND PUBLIC ENTERPRISES,
The infirm provisions of E.O. 464, however, allow the executive branch to MEMBERS OF THE COMMITTEE ON PUBLIC
evade congressional requests for information without need of clearly SERVICES, SENATOR JUAN PONCE-ENRILE, in his
asserting a right to do so and/or proffering its reasons therefor. By the mere capacity as member of both said Committees, MANUEL
expedient of invoking said provisions, the power of Congress to conduct VILLAR, Senate President, THE SENATE
inquiries in aid of legislation is frustrated. That is impermissible. For SERGEANT-AT-ARMS, and SENATE OF THE
PHILIPPINES,
Respondents.
[w]hat republican theory did accomplish…was to reverse the old x-------------------------------------------------x
presumption in favor of secrecy, based on the divine right of kings and PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G.
nobles, and replace it with a presumption in favor of publicity, based on the BRODETT, LUIS K. LOKIN, JR., ROBERTO V. SAN JOSE,
doctrine of popular sovereignty. (Underscoring supplied) 109 DELFIN P. ANGCAO, ROBERTO L. ABAD, ALMA
KRISTINA ALOBBA, and JOHNNY TAN,
Resort to any means then by which officials of the executive branch could Petitioners,
refuse to divulge information cannot be presumed valid. Otherwise, we
shall not have merely nullified the power of our legislature to inquire into
the operations of government, but we shall have given up something of
much greater value – our right as a people to take part in government.
- versus - G.R. No. 17417
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and
3 of Executive Order No. 464 (series of 2005), "Ensuring Observance of Present:
the Principle of Separation of Powers, Adherence to the Rule on Executive SENATE COMMITTEE ON GOVERNMENT PANGANI
CORPORATIONS and PUBLIC ENTERPRISES, its PUNO,
MEMBERS and CHAIRMAN, the HONORABLE SENATOR QUISUMB
Privilege and Respect for the Rights of Public Officials Appearing in RICHARD GORDON and SENATE COMMITTEE ON YNARES-S
Legislative Inquiries in Aid of Legislation Under the Constitution, and For PUBLIC SERVICES, its Members and Chairman, the SANDOVA
Other Purposes," are declared VOID. Sections 1 and 2(a) are, however, HONORABLE SENATOR JOKER P. ARROYO, CARPIO,
VALID. Respondents. AUSTRIA-
CORONA,
SO ORDERED. CARPIO M
CALLEJO,
IN THE MATTER OF THE PETITION FOR ISSUANCE OF G.R. No. 174340 AZCUNA,
WRIT OF HABEAS CORPUS OF CAMILO L. SABIO, TINGA,
Petitioner, NAZARIO
GARCIA, a
J. ERMIN ERNEST LOUIE R. MIGUEL, VELASCO
Petitioner-Relator,

Promulgated:
- versus -
October 17, 200

HONORABLE SENATOR RICHARD GORDON, in his x--------------------------------------------------------------

capacity as Chairman, and the HONORABLE MEMBERS OF
THE COMMITTEE ON GOVERNMENT CORPORATIONS DECISION
AND PUBLIC ENTERPRISES and THE COMMITTEE ON
PUBLIC SERVICES of the Senate, HONORABLE SENATOR
JUAN PONCE-ENRILE, in his official capacity as Member, SANDOVAL-GUTIERREZ, J.:
HONORABLE MANUEL VILLAR, Senate President,
SENATE SERGEANT-AT-ARMS, and the SENATE OF THE
PHILIPPINES, Two decades ago, on February 28, 1986, former President
Respondents.
x ------------------------------------------------ x Corazon C.
PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT (PCGG) and CAMILO L. SABIO,
Chairman, NARCISO S. NARIO, RICARDO M. ABCEDE,
TERESO L. JAVIER and NICASIO A. CONTI,
Commissioners, MANUEL ANDAL and JULIO
JALANDONI, PCGG nominees to Philcomsat Holdings Aquino installed her regime by issuing Executive Order (E.O.) No.
Corporation, 1,[1] creating
G.R. No. 174318 the Presidential Commission on Good Government
Petitioners,
(PCGG). She entrusted upon this Commission the herculean task of

recovering the ill-gotten wealth accumulated by the deposed President
Ferdinand E. Marcos, his family, relatives, subordinates and close
associates.[2] Section 4 (b) of E.O. No. 1 provides that: No member or
staff of the Commission shall be required to testify or produce evidence
in any judicial, legislative or administrative proceeding concerning
matters within its official cognizance. Apparently, the purpose is to
ensure PCGGs unhampered performance of its task.[3]
Today, the constitutionality of Section 4(b) is being questioned on the
ground that it tramples upon the Senates power to conduct legislative
inquiry under Article VI, Section 21 of the 1987 Constitution, which reads:
The Senate or the House of Representatives
or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries
shall be respected.
The facts are undisputed.
On February 20, 2006, Senator Miriam Defensor Santiago introduced
Philippine Senate Resolution No. 455 (Senate Res. No. 455), [4] directing an
inquiry in aid of legislation on the anomalous losses incurred by the
Philippines Overseas Telecommunications Corporation (POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and
PHILCOMSAT Holdings Corporation (PHC) due to the alleged
improprieties in their operations by their respective Board of Directors.
The pertinent portions of the Resolution read:
WHEREAS, in the last quarter of 2005, the
representation and entertainment expense of the PHC
skyrocketed to P4.3 million, as compared to the
previous years mere P106 thousand;
WHEREAS, some board members
established wholly owned PHC subsidiary called
Telecommunications Center, Inc. (TCI), where PHC
funds are allegedly siphoned; in 18 months, over P73
million had been allegedly advanced to TCI without
any accountability report given to PHC and
PHILCOMSAT;
WHEREAS, the Philippine Star, in its 12
February 2002 issue reported that the executive
committee of Philcomsat has precipitately released
P265 million and granted P125 million loan to a
relative of an executive committee member; to date
there have been no payments given, subjecting the
company to an estimated interest income loss of
P11.25 million in 2004;
WHEREAS, there is an urgent need to
protect the interest of the Republic of the Philippines
in the PHC, PHILCOMSAT, and POTC from any
53
anomalous transaction, and to conserve or salvage any
remaining value of the governments equity position in
these corporations from any abuses of power done by
their respective board of directors;
WHEREFORE, be it resolved that the
proper Senate Committee shall conduct an inquiry
in aid of legislation, on the anomalous losses
incurred by the Philippine Overseas
Telecommunications Corporation (POTC),
Philippine Communications Satellite Corporation
(PHILCOMSAT), and Philcomsat Holdings
Corporations (PHC) due to the alleged
improprieties in the operations by their respective
board of directors.
Adopted.
(Sgd) MIRIAM
DEFENSOR SANTIAGO
On the same date, February 20, 2006, Senate Res. No. 455 was submitted
to the Senate and referred to the Committee on Accountability of Public
Officers and Investigations andCommittee on Public Services. However,
on March 28, 2006, upon motion of Senator Francis N. Pangilinan, it was
transferred to the Committee on Government Corporations and Public
Enterprises.[5]
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the
authority of Senator Richard J. Gordon, wrote
Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners,
inviting him to be one of the resource persons in the public meeting jointly
conducted by the Committee on Government Corporations and Public
Enterprises and Committee on Public Services. The purpose of the public
meeting was to deliberate on Senate Res. No. 455.[6]
On May 9, 2006, Chairman Sabio declined the invitation because
of prior commitment.[7] At the same time, he invoked Section 4(b) of E.O.
No. 1 earlier quoted.
On August 10, 2006, Senator Gordon issued a Subpoena
Ad Testificandum,[8] approved by Senate President Manuel Villar, requiring
Chairman Sabio and PCGG
Commissioners Ricardo Abcede, Nicasio Conti, Tereso Javier and Narci
so Nario to appear in the public hearing scheduled on August 23, 2006 and
testify on what they know relative to the matters specified in Senate Res.
No. 455. Similar subpoenae were issued against the directors and officers
of Philcomsat Holdings Corporation, namely: Benito V. Araneta, Philip
 54

With all due respect, Section 4(b) of E.O.

J. Brodett, Enrique L. Locsin, Manuel D. Andal, Roberto L. Abad, Luis
K. Lokin, Jr., Julio J. Jalandoni, Roberto V. San Jose, Delfin P. Angcao,
Alma Kristina Alloba and Johnny Tan.[9]
Again, Chairman Sabio refused to appear. In his letter to Senator
Gordon dated August 18, 2006, he reiterated his earlier position, invoking
Section 4(b) of E.O. No. 1. On the other hand, the directors and officers
of Philcomsat Holdings Corporation relied on the position paper they
previously filed, which raised issues on the propriety of legislative inquiry.
Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the
authority of Senator Gordon, sent another notice[10] to
Chairman Sabio requiring him to appear and testify on the same subject
matter set on September 6, 2006. The notice was issued under the same
authority of the Subpoena Ad Testificandum previously served upon (him)
last 16 August 2006.
No. 1 constitutes a limitation on the power of
legislative inquiry, and a recognition by the State of
the need to provide protection to the PCGG in order to
ensure the unhampered performance of its duties
under its charter. E.O. No. 1 is a law, Section 4(b) of
which had not been amended, repealed or revised in
any way.
To say the least, it would require both
Houses of Congress and Presidential fiat to amend or
repeal the provision in controversy. Until then, it
stands to be respected as part of the legal system in
this jurisdiction. (As held in People
v. Veneracion, G.R. Nos. 119987-88, October 12,
1995: Obedience to the rule of law forms the bedrock
of our system of justice. If judges, under the guise of
religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are
required by law to exercise the duties of their office,
then law becomes meaningless. A government of laws,
not of men excludes the exercise of broad
discretionary powers by those acting under its
authority. Under this system, judges are guided by the
Rule of Law, and ought to protect and enforce it
without fear or favor, 4 [Act of Athens (1955)] resist
encroachments by governments, political parties, or
even the interference of their own personal beliefs.)

Once more, Chairman Sabio did not comply with the notice. He
sent a letter[11] dated September 4, 2006 to Senator Gordon reiterating his
reason for declining to appear in the public hearing.
This prompted Senator Gordon to issue an
dated September 7, 2006 requiring Chairman Sabio and
Commissioners Abcede, Conti, Javier and Nario to show cause why they
should not be cited in contempt of the Senate. On September 11, 2006, they
submitted to the Senate their Compliance and Explanation, [12] which partly
reads:
Doubtless, there are laudable intentions
of the subject inquiry in aid of legislation. But the
rule of law requires that even the best intentions must
be carried out within the parameters of the
Constitution and the law. Verily, laudable purposes
must be carried out by legal methods. (Brillantes, Jr.,
et al. v. Commission on Elections, En Banc [G.R. No.
163193, June 15, 2004])
xxxxxx
Relevantly, Chairman Sabios letter to Sen.
Gordon dated August 19, 2006 pointed out that the
anomalous transactions referred to in the P.S.
Resolution No. 455 are subject of pending cases
before the regular courts, the Sandiganbayan and the
Order Supreme Court (Pending cases include: a. Samuel
Divina v. Manuel Nieto, Jr., et al., CA-G.R. No.
89102; b. Philippine Communications Satellite
Corporation v. Manuel Nieto, et al.; c. Philippine
Communications Satellite Corporation v. Manuel
D. Andal, Civil Case No. 06-095, RTC, Branch 61,
Makati City; d. Philippine Communications Satellite
Corporation v. PHILCOMSAT Holdings Corporation,
et al., Civil Case No. 04-1049) for which reason they
may not be able to testify thereon under the principle
of sub judice. The laudable objectives of
the PCGGs functions, recognized in several cases
decided by the Supreme Court, of the PCGG will be
put to naught if its recovery efforts will be unduly
impeded by a legislative investigation of cases that are
already pending before the Sandiganbayan and trial
courts.

On this score, Section 4(b) of E.O. No. 1 In Bengzon v. Senate Blue Ribbon
should not be ignored as it explicitly provides: Committee, (203 SCRA 767, 784 [1991]) the
Honorable Supreme Court held:
No member or staff
of the Commission shall be [T]he issues sought to
required to testify or produce be investigated by the respondent
evidence in any judicial Committee is one over which
legislative or administrative jurisdiction had been acquired by
proceeding concerning matters the Sandiganbayan. In short, the
within its official cognizance. issue has been pre-empted by
that court. To allow the
respondent Committee to
 55

conduct its own investigation of

Meanwhile, Philcomsat Holdings Corporation and its officers
an issue already before
the Sandigabayan would not only and directors, namely: Philip G. Brodett, Luis K. Lokin, Jr., Roberto V. San
pose the possibility of conflicting Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba and
judgments between a legislative
committee and a judicial tribunal, Johnny Tan filed a petition for certiorari and prohibition against the
but if the Committees judgment Senate Committees on Government Corporations and Public
were to be reached before that of
the Sandiganbayan, the Enterprisesand Public Services, their Chairmen, Senators Gordon and
possibility of its influence being Arroyo, and Members. The case was docketed as G.R. No. 174177.
made to bear on the ultimate
judgment of
the Sandiganbayan can not be
discounted. In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318
xxxxxx
(for certiorari and prohibition) Chairman Sabio, Commissioners Abcede,
IT IS IN VIEW OF THE FOREGOING Conti, Nario, and Javier; and
CONSIDERATIONS that the Commission decided
the PCGGs nominees Andal and Jalandoni alleged: first, respondent Senate
not to attend the Senate inquiry to testify and produce
evidence thereat. Committees disregarded Section 4(b) of E.O. No. 1 without any justifiable
reason; second, the inquiries conducted by respondent Senate Committees
are not in aid of legislation; third, the inquiries were conducted in the
Unconvinced with the above Compliance and Explanation, the Committee absence of duly published Senate Rules of Procedure Governing Inquiries
on Government Corporations and Public Enterprises and the Committee on in Aid of Legislation; and fourth, respondent Senate Committees are not
Public Services issued an Order[13] directing Major General vested with the power of contempt.
Jose Balajadia (Ret.), Senate Sergeant-At-Arms, to place
Chairman Sabio and his Commissioners under arrest for contempt of the
Senate. The Order bears the approval of Senate President Villar and In G.R. No. 174177, petitioners Philcomsat Holdings
the majority of the Committees members. Corporation and its directors and officers alleged: first, respondent Senate
Committees have no jurisdiction over the subject matter stated in Senate
Res. No. 455; second, the same inquiry is not in accordance with the
On September 12, 2006, at around 10:45 a.m., Major Senates Rules of Procedure Governing Inquiries in Aid of
General Balajadia arrested Chairman Sabio in his office at IRC Building, Legislation; third,the subpoenae against the individual petitioners are void
No. 82 EDSA, Mandaluyong City and brought him to the Senate premises for having been issued without authority; fourth, the conduct of legislative
where he was detained. inquiry pursuant to Senate Res. No. 455 constitutes undue encroachment by
respondents into justiciable controversies over which several courts and
tribunals have already acquired
Hence, Chairman Sabio filed with this Court a petition jurisdiction; and fifth, the subpoenaeviolated petitioners rights to privacy
for habeas corpus against the Senate Committee on Government and against self-incrimination.
Corporations and Public Enterprises and Committee on Public Services,
their Chairmen, Senators Richard Gordon and Joker P. Arroyo and
In their Consolidated Comment, the above-named respondents
Members. The case was docketed as G.R. No. 174340.
countered: first, the issues raised in the petitions involve political questions
over which this Court has no jurisdiction; second, Section 4(b) has been
repealed by the Constitution; third, respondent Senate Committees are
Chairman Sabio, Commissioners Abcede, Conti, Nario,
vested with contempt power; fourth, Senates Rules of Procedure Governing
and Javier, and the PCGGs nominees to Philcomsat Holdings Corporation,
Inquiries in Aid of Legislation have been duly published; fifth, respondents
Manuel Andal and Julio Jalandoni, likewise filed a petition for certiorari
have not violated any civil right of the individual petitioners, such as
and prohibition against the same respondents, and also against Senate
their (a) right to privacy; and (b) right against self-incrimination;
President Manuel Villar, Senator Juan Ponce Enrile, the Sergeant-at-Arms,
and sixth, the inquiry does not constitute undue encroachment
and the entire Senate. The case was docketed as G.R. No. 174318.
into justiciable controversies.

During the oral arguments held on September 21, 2006, the
parties were directed to submit simultaneously their respective memoranda
within a non-extendible period of fifteen (15) days from date. In the
meantime, per agreement of the parties, petitioner Chairman Sabio was
allowed to go home. Thus, his petition for habeas corpus has become
moot. The parties also agreed that the service of the arrest warrants issued
against all petitioners and the proceedings before the respondent Senate
Committees are suspended during the pendency of the instant cases. [14]
Crucial to the resolution of the present petitions is the
fundamental issue of whether Section 4(b) of E.O. No. 1 is repealed by
the 1987 Constitution. On this lone issue hinges the merit of the
contention of Chairman Sabio and his Commissioners that their refusal to
appear before respondent Senate Committees is justified. With the
resolution of this issue, all the other issues raised by the parties have
become inconsequential.
Perched on one arm of the scale of justice is Article VI, Section
21 of the 1987 Constitution granting respondent Senate Committees the
power of legislative inquiry. It reads:
The Senate or the House of
Representatives or any of its respective committees
may conduct inquiries in aid of legislation in
accordance with its duly published rules of
procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.
On the other arm of the scale is Section 4(b) of E.O. No.1
limiting such power of legislative inquiry by exempting all PCGG
members or staff from testifying in any judicial, legislative or
administrative proceeding, thus:
No member or staff of the Commission
shall be required to testify or produce evidence in
any judicial, legislative or administrative
proceeding concerning matters within its official
cognizance.
To determine whether there exists a clear and unequivocal
repugnancy between the two quoted provisions that warrants a declaration
that Section 4(b) has been repealed by the 1987 Constitution, a brief
consideration of the Congress power of inquiry is imperative.
56
The Congress power of inquiry has been recognized in foreign
jurisdictions long before it reached our shores through McGrain v.
Daugherty,[15] cited in Arnault v. Nazareno.[16] In those earlier days,
American courts considered the power of inquiry as inherent in the power
to legislate. The 1864 case of Briggs v. MacKellar[17] explains the breath
and basis of the power, thus:
Where no constitutional limitation or
restriction exists, it is competent for either of the two
bodies composing the legislature to do, in their
separate capacity, whatever may be essential to
enable them to legislate.It is well-established
principle of this parliamentary law, that either house
may institute any investigation having reference to
its own organization, the conduct or qualification of
its members, its proceedings, rights, or privileges
or any matter affecting the public interest upon
which it may be important that it should have
exact information, and in respect to which it would
be competent for it to legislate. The right to pass
laws, necessarily implies the right to obtain
information upon any matter which may become
the subject of a law. It is essential to the full and
intelligent exercise of the legislative function.In
American legislatures the investigation of public
matters before committees, preliminary to
legislation, or with the view of advising the house
appointing the committee is, as a parliamentary
usage, well established as it is in England, and the
right of either house to compel witnesses to appear
and testify before its committee, and to punish for
disobedience has been frequently enforced.The right
of inquiry, I think, extends to other matters, in
respect to which it may be necessary, or may be
deemed advisable to apply for legislative aid.
Remarkably, in Arnault, this Court adhered to a similar
theory. Citing McGrain, it recognized that the power of inquiry is an
essential and appropriate auxiliary to the legislative function, thus:
Although there is no provision in the
Constitution expressly investing either House of
Congress with power to make investigations and exact
testimony to the end that it may exercise its legislative
functions advisedly and effectively, such power is so
far incidental to the legislative function as to be
implied. In other words, the power of inquiry with
process to enforce it is an essential and appropriate
auxiliary to the legislative function. A legislative
body cannot legislate wisely or effectively in the
absence of information respecting the conditions
which the legislation is intended to affect or change;
and where the legislation body does not itself
possess the requisite information which is not
infrequently true recourse must be had to others
who possess it.
 57

Dispelling any doubt as to the Philippine Congress Furthermore, Section 4(b) is also inconsistent with Article
power of inquiry, provisions on such power made their maiden XI, Section 1 of the Constitution stating that: Public office is a public trust.
appearance in Article VIII, Section 12 of the 1973 Public officers and employees must at all times be accountable to the
[18]
Constitution. Then came the 1987 Constitution incorporating people, serve them with utmost responsibility, integrity, loyalty, and
the present Article VI, Section 12. What was efficiency, act with patriotism and justice, and lead modest lives.
therefore implicit under the 1935 Constitution, as influenced by
American jurisprudence, became explicit under the 1973 and
1987 Constitutions.[19] The provision presupposes that since an incumbent of a public
office is invested with certain powers and charged with certain duties
pertinent to sovereignty, the powers so delegated to the officer are held in
Notably, the 1987 Constitution recognizes the power of trust for the people and are to be exercised in behalf of the
investigation, not just of Congress, but also of any of its committee. This government or of all citizens who may need the intervention of the
is significant because it constitutes a direct conferral of investigatory officers. Such trust extends to all matters within the range of duties
power upon the committees and it means that the mechanisms which the pertaining to the office. In other words, public officers are but the
Houses can take in order to effectively perform its investigative function servants of the people, and not their rulers.[24]
are also available to the committees.[20]

Section 4(b), being in the nature of an immunity, is inconsistent

It can be said that the Congress power of inquiry has gained with the principle of public accountability. It places the PCGG members
more solid existence and expansive construal. The Courts and staff beyond the reach of courts, Congress and other administrative
high regard to such power is rendered more evident in Senate bodies. Instead of encouraging public accountability, the same
v. Ermita,[21] where it categorically ruled that the power of inquiry is provision only institutionalizes irresponsibility and
broad enough to cover officials of the executive branch. Verily, the non-accountability. In Presidential Commission on Good Government
Court reinforced the doctrine in Arnault that the operation of government, v. Pea,[25] Justice Florentino P. Feliciano characterized as obiter the portion
being a legitimate subject for legislation, is a proper subject for of the majority opinion barring, on the basis of Sections 4(a) and (b) of E.O.
investigation and that the power of inquiry is co-extensive with the No. 1, a civil case for damages filed against the PCGG and its
power to legislate. Commissioners. He eloquently opined:

The above underscored portions are, it is

Considering these jurisprudential instructions, we find Section
respectfully submitted, clearly obiter. It is important
4(b) directly repugnant with Article VI, Section 21. Section 4(b) exempts to make clear that the Court is not here
the PCGG members and staff from the Congress power of interpreting, much less upholding as valid and
constitutional, the literal terms of Section 4 (a), (b)
inquiry. This cannot be countenanced. Nowhere in the Constitution is any of Executive Order No.1. If Section 4 (a) were given
provision granting such exemption. The Congress power of inquiry, being its literal import as immunizing the PCGG or any
member thereof from civil liability for anything done
broad, encompasses everything that concerns the administration of existing or omitted in the discharge of the task contemplated
laws as well as proposed or possibly needed statutes. [22] It even extends to by this Order, the constitutionality of Section 4 (a)
would, in my submission, be open to most serious
government agencies created by Congress and officers whose positions
doubt. For so viewed, Section 4 (a) would
are within the power of Congress to regulate or even abolish. [23] PCGG institutionalize the irresponsibility and
belongs to this class. non-accountability of members and staff of the PCGG,
a notion that is clearly repugnant to both the 1973 and
1987 Constitution and a privileged status not claimed
by any other official of the Republic under the 1987
Constitution. x x x.
Certainly, a mere provision of law cannot pose a limitation to the
broad power of Congress, in the absence of any constitutional basis. xxxxxx

It would seem constitutionally offensive to suppose

that a member or staff member of the PCGG could
not be required to testify before
the Sandiganbayan or that such members were

exempted from complying with orders of this
Court.
Chavez v. Sandiganbayan[26] reiterates the same view. Indeed, Section 4(b)
has been frowned upon by this Court even before the filing of the present
petitions.
Corollarily, Section 4(b) also runs counter to the following
constitutional provisions ensuring the peoples access to information:
Article II, Section 28
Subject to reasonable conditions prescribed
by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving
public interest.
Article III, Section 7
The right of the people to information on matters
of public concern shall be recognized. Access to
official records, and to documents, and papers
pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis
for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
These twin provisions of the Constitution seek to promote
transparency in policy-making and in the operations of the government, as
well as provide the people sufficient information to enable them to exercise
effectively their constitutional rights. Armed with the right information,
citizens can participate in public discussions leading to the formulation of
government policies and their effective
implementation. In Valmonte v. Belmonte, Jr.[27] the Court explained that
an informed citizenry is essential to the existence and proper functioning of
any democracy, thus:
An essential element of these freedoms is to
keep open a continuing dialogue or process of
communication between the government and the
people. It is in the interest of the State that the
channels for free political discussion be maintained to
the end that the government may perceive and be
responsive to the peoples will. Yet, this open dialogue
can be effective only to the extent that the citizenry is
informed and thus able to formulate its will
intelligently. Only when the participants in the
discussion are aware of the issues and have access to
information relating thereto can such bear fruit.
58
Consequently, the conduct of inquiries in aid of legislation is not only
intended to benefit Congress but also the citizenry. The people are equally
concerned with this proceeding and have the right to participate therein in
order to protect their interests. The extent of their participation will largely
depend on the information gathered and made known to them. In other
words, the right to information really goes hand-in-hand with the
constitutional policies of full public disclosure and honesty in the public
service. It is meant to enhance the widening role of the citizenry in
governmental decision-making as well as in checking abuse in the
government.[28] The cases of Taada v. Tuvera[29] and Legaspi v. Civil
[30]
Service Commission have recognized a citizens interest and personality
to enforce a public duty and to bring an action to compel public officials
and employees to perform that duty.
Section 4(b) limits or obstructs the power of Congress to secure
from PCGG members and staff information and other data in aid of its
power to legislate. Again, this must not be countenanced. In Senate
v. Ermita,[31] this Court stressed:
To the extent that investigations in aid of
legislation are generally conducted in public, however,
any executive issuance tending to unduly limit
disclosures of information in such investigations
necessarily deprives the people of information
which, being presumed to be in aid of legislation, is
presumed to be a matter of public concern. The
citizens are thereby denied access to information
which they can use in formulating their own opinions
on the matter before Congress opinions which they
can then communicate to their representatives and
other government officials through the various legal
means allowed by their freedom of expression.
A statute may be declared unconstitutional because it is not
within the legislative power to enact; or it creates or establishes methods
or forms that infringe constitutional principles; or its purpose or effect
violates the Constitution or its basic principles.[32] As shown in the
above discussion, Section 4(b) is inconsistent with Article VI, Section
21 (Congress power of inquiry), Article XI, Section 1 (principle of public
accountability), Article II, Section 28 (policy of full disclosure)
and Article III, Section 7 (right to public information).
Significantly, Article XVIII, Section 3 of the Constitution
provides:

All existing laws, decrees, executive orders,
proclamations, letters of instructions, and other
executive issuances not inconsistent with this
Constitution shall remain operative until
amended, repealed, or revoked.
The clear import of this provision is that all existing laws, executive orders,
proclamations, letters of instructions and other executive issuances
inconsistent or repugnant to the Constitution are repealed.
Jurisprudence is replete with decisions invalidating laws, decrees,
executive orders, proclamations, letters of instructions and other executive
issuances inconsistent with the Constitution. In Pelaez v.
Auditor General,[33] the Court considered repealed Section 68 of the
Revised Administrative Code of 1917 authorizing the Executive to change
the seat of the government of any subdivision of local governments, upon
the approval of the 1935 Constitution. Section 68 was adjudged
incompatible and inconsistent with the Constitutional grant of limited
executive supervision over local governments. In Islamic Dawah Council
of the Philippines, Inc., v. Office of the Executive Secretary, [34] the Court
declared Executive Order No. 46, entitled Authorizing the Office on Muslim
Affairs to Undertake Philippine Halal Certification, void for encroaching
on the religious freedom of Muslims. In The Province of Batangas v.
Romulo,[35] the Court declared some provisions of the General
Appropriations Acts of 1999, 2000 and 2001 unconstitutional for violating
the Constitutional precept on local autonomy. And in Ople v. Torres,[36] the
Court likewise declared unconstitutional Administrative Order No. 308,
entitled Adoption of a National Computerized Identification Reference
System, for being violative of the right to privacy protected by the
Constitution.
These Decisions, and many others, highlight that the
Constitution is the highest law of the land. It 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. No act shall be
valid, however noble its intentions, if it conflicts with the
Constitution.[37] Consequently, this Court has no recourse but to declare
Section 4(b) of E.O. No. 1 repealed by the 1987 Constitution.
Significantly, during the oral arguments on September 21, 2006,
Chairman Sabio admitted that should this Court rule that Section 4(b) is
unconstitutional or that it does not apply to the Senate, he will answer the
questions of the Senators, thus:
CHIEF JUSTICE PANGANIBAN:
59
Okay. Now, if the Supreme Court rules that Sec. 4(b)
is unconstitutional or that it does not apply
to the Senate, will you answer the questions
of the Senators?
CHAIRMAN SABIO:
Your Honor, my father was a judge, died being a
judge. I was here in the Supreme Court as
Chief of Staff of Justice Feria. I would
definitely honor the Supreme Court and the
rule of law.
CHIEF JUSTICE PANGANIBAN:
You will answer the questions of the Senators if we
say that?
CHAIRMAN SABIO:
Yes, Your Honor. That is the law already as far as I
am concerned.
With his admission, Chairman Sabio is not fully convinced that he and his
Commissioners are shielded from testifying before respondent Senate
Committees by Section 4(b) of E.O. No. 1. In effect, his argument that the
said provision exempts him and his co-respondent Commissioners from
testifying before respondent Senate Committees concerning Senate Res. No.
455 utterly lacks merit.
Incidentally, an argument repeated by Chairman Sabio is that respondent
Senate Committees have no power to punish him and his Commissioners
for contempt of the Senate.
The argument is misleading.
Article VI, Section 21 provides:
The Senate or the House of
Representatives or any of its respective committees
may conduct inquiries in aid of legislation in
accordance with its duly published rules of
procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.
It must be stressed that the Order of Arrest for contempt of
Senate Committees and the Philippine Senate was approved by Senate
President Villar and signed by fifteen (15) Senators. From this, it can be

concluded that the Order is under the authority, not only of the respondent
Senate Committees, but of the entire Senate.
At any rate, Article VI, Section 21 grants the power of inquiry
not only to the Senate and the House of Representatives, but also to any of
their respective committees. Clearly, there is a direct conferral of
power to the committees. Father Bernas, in his Commentary on the 1987
Constitution, correctly pointed out its significance:
It should also be noted that the Constitution
explicitly recognizes the power of investigation not
just of Congress but also of any of its
committees. This is significant because it constitutes
a direct conferral of investigatory power upon the
committees and it means that the means which the
Houses can take in order to effectively perform its
investigative function are also available to the
Committees.[38]
This is a reasonable conclusion. The conferral of the legislative power of
inquiry upon any committee of Congress must carry with it all powers
necessary and proper for its effective discharge. Otherwise, Article VI,
Section 21 will be meaningless. The indispensability and usefulness of the
power of contempt in a legislative inquiry is underscored in a catena of
cases, foreign and local.
In the 1821 case of Anderson v. Dunn,[39] the function of the
Houses of Congress with respect to the contempt power was likened to that
of a court, thus:
But the court in its reasoning goes beyond
this, and though the grounds of the decision are not
very clearly stated, we take them to be: that there is
in some cases a power in each House of Congress to
punish for contempt; that this power is analogous
to that exercised by courts of justice, and that it
being the well established doctrine that when it
appears that a prisoner is held under the order of a
court of general jurisdiction for a contempt of its
authority, no other court will discharge the
prisoner or make further inquiry into the cause of
his commitment. That this is the general ruleas
regards the relation of one court to another must be
conceded.
In McGrain,[40] the U.S. Supreme Court held: Experience has shown
that mere requests for such information are often unavailing, and also
that information which is volunteered is not always accurate or
complete; so some means of compulsion is essential to obtain what is
60
needed. The Court, in Arnault v. Nazareno,[41] sustained the Congress
power of contempt on the basis of this observation.
In Arnault v. Balagtas,[42] the Court further explained that
the contempt power of Congress is founded upon reason and policy and
that the power of inquiry will not be complete if for every contumacious act,
Congress has to resort to judicial interference, thus:
The principle that Congress or any of its
bodies has the power to punish recalcitrant witnesses
is founded upon reason and policy. Said power must
be considered implied or incidental to the exercise of
legislative power. How could a legislative body
obtain the knowledge and information on which to
base intended legislation if it cannot require and
compel the disclosure of such knowledge and
information if it is impotent to punish a defiance of
its power and authority? When the framers of the
Constitution adopted the principle of separation of
powers, making each branch supreme within the
realm of its respective authority, it must have
intended each departments authority to be full and
complete, independently of the others authority or
power. And how could the authority and power
become complete if for every act of refusal, every
act of defiance, every act of contumacy against it,
the legislative body must resort to the judicial
department for the appropriate remedy, because it
is impotent by itself to punish or deal therewith,
with the affronts committed against its authority
or dignity.[43]
In Negros Oriental II Electric Cooperative, Inc. v.
Sangguniang Panlungsod of Dumaguete, [44]
the Court characterized
contempt power as a matter of self-preservation, thus:
The exercise by the legislature of the
contempt power is a matter of self-preservation as
that branch of the government vested with the
legislative power, independently of the judicial branch,
asserts its authority and
punishes contempts thereof. The contempt power of
the legislature is, therefore, sui generis x x x.
Meanwhile, with respect to G.R. No. 174177, the petition
of Philcomsat Holdings Corporation and its directors and officers, this
Court holds that the respondent Senate Committees inquiry does not violate
their right to privacy and right against self-incrimination.
 61

One important limitation on the Congress power of inquiry is The answers are in the negative. Petitioners were invited in the
that the rights of persons appearing in or affected by such inquiries Senates public hearing to deliberate on Senate Res. No. 455, particularly on
shall be respected. This is just another way of saying that the power of the anomalous losses incurred by the Philippine Overseas
inquiry must be subject to the limitations placed by the Constitution on Telecommunications Corporation (POTC), Philippine
[45]
government action. As held in Barenblatt v. United States, the Congress, Communications Satellite Corporation (PHILCOMSAT),
in common with all the other branches of the Government, must and Philcomsat Holdings Corporations (PHC) due to the alleged
exercise its powers subject to the limitations placed by the Constitution improprieties in the operations by their respective board of
on governmental action, more particularly in the context of this case, directors. Obviously, the inquiry focus on petitioners acts committed in the
the relevant limitations of the Bill of Rights. discharge of their duties as officers and directors of the said corporations,
particularly Philcomsat Holdings Corporation. Consequently, they have
First is the right to privacy. no reasonable expectation of privacy over matters involving their
offices in a corporation where the government has interest. Certainly,
such matters are of public concern and over which the people have the
Zones of privacy are recognized and protected in our
right to information.
laws.[46] Within these zones, any form of intrusion is impermissible unless
excused by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from our
This goes to show that the right to privacy is not absolute where
conviction that the right to privacy is a constitutional right and the right
there is an overriding compelling state interest. In Morfe v. Mutuc,[51] the
most valued by civilized men,[47] but also from our adherence to the
Court, in line with Whalen v. Roe,[52] employed the rational basis
Universal Declaration of Human Rights which mandates that, no one shall
relationship test when it held that there was no infringement of the
be subjected to arbitrary interference with his privacy and everyone has the
individuals right to privacy as the requirement to disclosure information is
right to the protection of the law against such interference or attacks. [48]
for a valid purpose, i.e., to curtail and minimize the opportunities for
official corruption, maintain a standard of honesty in public service, and
Our Bill of Rights, enshrined in Article III of the Constitution, promote morality in public
provides at least two guarantees that explicitly create zones of privacy. It administration. [53]
In Valmonte v. Belmonte, [54]
the Court remarked that as
highlights a persons right to be let alone or the right to determine what, public figures, the Members of the former Batasang Pambansa enjoy a
how much, to whom and when information about himself shall be more limited right to privacyas compared to ordinary individuals, and
disclosed.[49] Section 2 guarantees the right of the people to be secure in their actions are subject to closer scrutiny. Taking this into consideration,
their persons, houses, papers and effects against unreasonable searches the Court ruled that the right of the people to access information on matters
and seizures of whatever nature and for any purpose. Section of public concern prevails over the right to privacy of financial
3 renders inviolable the privacyof communication and transactions.
correspondence and further cautions that any evidence obtained in
violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding. Under the present circumstances, the alleged anomalies in the
PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the
conspiratorial participation of the PCGG and its officials are compelling
In evaluating a claim for violation of the right to privacy, a court reasons for the Senate to exact vital information from the directors and
must determine whether a person has exhibited a reasonable expectation of officers of Philcomsat Holdings Corporations, as well as from
privacy and, if so, whether that expectation has been violated by Chairman Sabio and his Commissioners to aid it in crafting the necessary
unreasonable government intrusion.[50] Applying this determination to these legislation to prevent corruption and formulate remedial measures and
cases, the important inquiries are: first, did the directors and officers policy determination regarding PCGGs efficacy. There being no reasonable
of Philcomsat Holdings Corporation exhibit a reasonable expectation of expectation of privacy on the part of those directors and officers over the
privacy?; and second, did the government violate such expectation? subject covered by Senate Res. No. 455, it follows that their right to
privacy has not been violated by respondent Senate Committees.
 62

Anent the right against self-incrimination, it must be emphasized

that this right maybe invoked by the said directors and officers In fine, PCGG Chairman Camilo Sabio and Commissioners
of Philcomsat Holdings Corporation only when the incriminating Ricardo Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and
question is being asked, since they have no way of knowing in advance Manuel Andal and Julio Jalandoni, PCGGsnominees
[55]
the nature or effect of the questions to be asked of them. That this to Philcomsat Holdings Corporation, as well as its directors and officers,
right may possibly be violated or abused is no ground for denying must comply with the Subpoenae Ad Testificandum issued by respondent
respondent Senate Committees their power of inquiry. The consolation is Senate Committees directing them to appear and testify in public hearings
that when this power is abused, such issue may be presented before the relative to Senate Resolution No. 455.
courts. At this juncture, what is important is that respondent Senate
Committees have sufficient Rules to guide them when the right against
self-incrimination is invoked. Sec. 19 reads: WHEREFORE, the petition in G.R. No. 174340 for habeas
corpus is DISMISSED, for being moot. The petitions in G.R Nos. 174318
Sec. 19. Privilege Against Self-Incrimination
and 174177 are likewise DISMISSED.

A witness can invoke his right against

self-incrimination only when a question tends to elicit Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987
an answer that will incriminate him is propounded to
him. However, he may offer to answer any question in Constitution. Respondent Senate Committees power of inquiry relative to
an executive session. Senate Resolution 455 is upheld.PCGG Chairman Camilo L. Sabio and
No person can refuse to testify or be placed Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti
under oath or affirmation or answer questions before and Tereso Javier; and Manuel Andal and
an incriminatory question is asked. His invocation of
such right does not by itself excuse him from his duty Julio Jalandoni, PCGGsnominees to Philcomsat Holdings Corporation, as
to give testimony. well as its directors and officers, petitioners in G.R. No. 174177, are
In such a case, the Committee, by a ordered to comply with the Subpoenae Ad Testificandumissued by
majority vote of the members present there being a
respondent Senate Committees directing them to appear and testify in
quorum, shall determine whether the right has been
properly invoked. If the Committee decides otherwise, public hearings relative to Senate Resolution No. 455.
it shall resume its investigation and the question or
questions previously refused to be answered shall be
repeated to the witness. If the latter continues to refuse SO ORDERED.
to answer the question, the Committee may punish ROMULO L. NERI, G.R. No. 180643
him for contempt for contumacious conduct. Petitioner
, Present:

PUNO, C.J.,
- versus - QUISUMBING,
The same directors and officers contend that the Senate is barred
YNARES-SANTIAGO
from inquiring into the same issues being litigated before the Court of ,
Appeals and the Sandiganbayan.Suffice it to state that the Senate Rules of SENATE COMMITTEE ON CARPIO,
ACCOUNTABILITY OF PUBLIC AUSTRIA-MARTINE
Procedure Governing Inquiries in Aid of Legislation provide that the filing OFFICERS AND Z,
or pendency of any prosecution of criminal or administrative action should INVESTIGATIONS, SENATE CORONA,
COMMITTEE ON TRADE AND CARPIO MORALES,
not stop or abate any inquiry to carry out a legislative purpose.
COMMERCE, AND SENATE AZCUNA,
COMMITTEE ON NATIONAL TINGA,
DEFENSE AND SECURITY, CHICO-NAZARIO,
Responde VELASCO, JR.,
Let it be stressed at this point that so long as the constitutional nts. NACHURA,
rights of witnesses, like Chairman Sabio and his Commissioners, will be REYES,
LEONARDO-DE
respected by respondent Senate Committees, it their duty to cooperate with CASTRO, and
them in their efforts to obtain the facts needed for intelligent legislative BRION, JJ.
action. The unremitting obligation of every citizen is to respond
Promulgated:
to subpoenae, to respect the dignity of the Congress and its Committees,
and to testify fully with respect to matters within the realm of proper March 25, 2008
x-----------------------------------------------------------------------------------------
investigation. ---------------------------x
 63

DECISION SECURITY IMPLICATIONS OF AWARDING THE

NATIONAL BROADBAND NETWORK
CONTRACT TO THE CHINESE FIRM ZHONG
XING TELECOMMUNICATIONS EQUIPMENT
LEONARDO-DE CASTRO, J.:
COMPANY LIMITED (ZTE CORPORATION)
At bar is a petition for certiorari under Rule 65 of the Rules of Court WITH THE END IN VIEW OF PROVIDING
REMEDIAL LEGISLATION THAT WILL
assailing the show cause Letter[1] dated November 22, 2007 and PROTECT OUR NATIONAL SOVEREIGNTY,
[2]
SECURITY AND TERRITORIAL INTEGRITY.
contempt Order dated January 30, 2008 concurrently issued

by respondent (4) P.S. Res. No. 136, introduced by Senator Miriam

Defensor Santiago, entitled RESOLUTION
Senate Committees on Accountability of Public Officers and DIRECTING THE PROPER SENATE COMMITTEE
TO CONDUCT AN INQUIRY, IN AID OF
Investigations,[3] Trade and Commerce,[4] and National Defense and LEGISLATION, ON THE LEGAL AND
[5] ECONOMIC JUSTIFICATION OF THE
Security against petitioner Romulo L.
NATIONAL BROADBAND NETWORK (NBN)
Neri, former Director General of the National Economic PROJECT OF THE NATIONAL GOVERNMENT.

and Development Authority (NEDA).

At the same time, the investigation was claimed to be relevant to the

The facts, as culled from the pleadings, are as follows: consideration of three (3) pending bills in the Senate, to wit:

1. Senate Bill No. 1793, introduced by Senator

On April 21, 2007, the Department of Transportation and Communication Mar Roxas, entitled AN ACT SUBJECTING
TREATIES, INTERNATIONAL OR
(DOTC) entered into a contract with Zhong Xing Telecommunications
EXECUTIVE AGREEMENTS INVOLVING
Equipment (ZTE) for the supply of equipment and services for the National FUNDING IN THE PROCUREMENT OF
INFRASTRUCTURE PROJECTS, GOODS,
Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 AND CONSULTING SERVICES TO BE
INCLUDED IN THE SCOPE AND
(approximately P16 Billion Pesos). The Project was to be financed by the APPLICATION OF PHILIPPINE
Peoples Republic of China. PROCUREMENT LAWS, AMENDING FOR
THE PURPOSE REPUBLIC ACT NO. 9184,
OTHERWISE KNOWN AS THE
In connection with this NBN Project, various Resolutions were introduced GOVERNMENT PROCUREMENT REFORM
ACT, AND FOR OTHER PURPOSES;
in the Senate, as follows:
(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. 2. Senate Bill No. 1794, introduced by Senator
Pimentel, Jr., entitled RESOLUTION DIRECTING Mar Roxas, entitled AN ACT IMPOSING
THE BLUE RIBBON COMMITTEE AND THE SAFEGUARDS IN CONTRACTING LOANS
COMMITTEE ON TRADE AND INDUSTRY TO CLASSIFIED AS OFFICIAL DEVELOPMENT
INVESTIGATE, IN AID OF LEGISLATION, THE ASSISTANCE, AMENDING FOR THE
CIRCUMSTANCES LEADING TO THE PURPOSE REPUBLIC ACT NO. 8182, AS
APPROVAL OF THE BROADBAND CONTRACT AMENDED BY REPUBLIC ACT NO. 8555,
WITH ZTE AND THE ROLE PLAYED BY THE OTHERWISE KNOWN AS THE OFFICIAL
OFFICIALS CONCERNED IN GETTING IT DEVELOPMENT ASSISTANCE ACT OF 1996,
CONSUMMATED AND TO MAKE AND FOR OTHER PURPOSES; and
RECOMMENDATIONS TO HALE TO THE
COURTS OF LAW THE PERSONS RESPONSIBLE 3. Senate Bill No. 1317, introduced by Senator
FOR ANY ANOMALY IN CONNECTION Miriam Defensor Santiago, entitled AN ACT
THEREWITH AND TO PLUG THE LOOPHOLES, MANDATING CONCURRENCE TO
IF ANY IN THE BOT LAW AND OTHER INTERNATIONAL AGREEMENTS AND
PERTINENT LEGISLATIONS. EXECUTIVE AGREEMENTS.

(2) P.S. Res. No. 144, introduced by Senator Mar

Roxas, entitled RESOLUTION URGING
PRESIDENT GLORIA MACAPAGAL ARROYO Respondent Committees initiated the investigation by sending invitations to
TO DIRECT THE CANCELLATION OF THE ZTE
CONTRACT certain personalities and cabinet officials involved

in the NBN Project. Petitioner was among those invited. He was summoned
(3) P.S. Res. No. 129, introduced by Senator Panfilo
M. Lacson, entitled RESOLUTION DIRECTING to appear and testify on September 18, 20, and 26 and October 25,
THE COMMITTEE ON NATIONAL DEFENSE
AND SECURITY TO CONDUCT AN INQUIRY IN
AID OF LEGISLATION INTO THE NATIONAL

2007. However, he attended only the September 26 hearing, claiming he
was out of town during the other dates.
In the September 18, 2007 hearing, businessman Jose de Venecia III
testified that several high executive officials and power brokers were using
their influence to push the approval of the NBN Project by the NEDA. It
appeared that the Project was initially approved as
Build-Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA
acquiesced to convert it into a government-to-government project, to be
financed through a loan from the Chinese Government.
On September 26, 2007, petitioner testified before respondent Committees
for eleven (11) hours. He disclosed that then Commission on Elections
(COMELEC) Chairman Benjamin Abalos offered him P200 Million in
exchange for his approval of the NBN Project. He further narrated that he
informed President Arroyo about the bribery attempt and that she instructed
him not to accept the bribe. However, when probed further on what they
discussed about the NBN Project, petitioner refused to answer, invoking
executive privilege. In particular, he refused to answer the questions
on (a) whether or not President Arroyo followed up the NBN
Project,[6] (b) whether or not she directed him to prioritize
it, [7]
and (c) whether or not she directed him to approve. [8]
Unrelenting, respondent Committees issued a Subpoena
Testificandum to petitioner, requiring him to appear and testify
on November 20, 2007.
However, in the Letter dated November 15, 2007, Executive Secretary
Eduardo R. Ermita requested respondent Committees to dispense with
petitioners testimony on the ground of executive privilege. The pertinent
portion of the letter reads:
With reference to the subpoena ad
testificandum issued to Secretary Romulo Neri to
appear and testify again on 20 November 2007 before
the Joint Committees you chair, it will be recalled that
Sec. Neri had already testified and exhaustively
discussed the ZTE / NBN project, including his
conversation with the President thereon last 26
September 2007.
Asked to elaborate further on his conversation with
the President, Sec. Neri asked for time to consult with
his superiors in line with the ruling of the Supreme
Court in Senate v. Ermita, 488 SCRA 1 (2006).
64
Specifically, Sec. Neri sought guidance on the
possible invocation of executive privilege on the
following questions, to wit:
a) Whether the President followed up
the (NBN) project?
b) Were you dictated to prioritize the
ZTE?
c) Whether the President said to go
ahead and approve the project after
a being told about the alleged bribe?
Following the ruling in Senate v. Ermita, the
foregoing questions fall under conversations and
correspondence between the President and public
officials which are considered executive privilege
(Almonte v. Vasquez, G.R. 95637, 23 May
1995; Chavez v. PEA, G.R. 133250, July 9,
2002). Maintaining the confidentiality of
conversations of the President is necessary in the
exercise of her executive and policy decision making
process. The expectation of a President to the
confidentiality of her conversations and
correspondences, like the value which we accord
deference for the privacy of all citizens, is the
necessity for protection of the public interest in candid,
objective, and even blunt or harsh opinions in
Presidential decision-making. Disclosure of
conversations of the President will have a chilling
effect on the President, and will hamper her in the
effective discharge of her duties and responsibilities,
if she is not protected by the confidentiality of her
conversations.
The context in which executive privilege is being
invoked is that the information sought to be disclosed
might impair our diplomatic as well as economic
relations with the Peoples Republic of China. Given
Ad the confidential nature in which these information
were conveyed to the President, he cannot provide the
Committee any further details of these conversations,
without disclosing the very thing the privilege is
designed to protect.
In light of the above considerations, this Office is
constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has
advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily
interrogated on the subject in an unprecedented
11-hour hearing, wherein he has answered all
questions propounded to him except the foregoing
questions involving executive privilege, we therefore
request that his testimony on 20 November 2007 on
the ZTE / NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent
Committees. Thus, on November 22, 2007, the latter issued the show
cause Letter requiring him to explain why he should not be cited in
contempt. The Letter reads:
 65

ORDER

Since you have failed to appear in the said hearing,
the Committees on Accountability of Public Officers
and Investigations (Blue Ribbon), Trade and
Commerce and National Defense and Security require
you to show cause why you should not be cited in
contempt under Section 6, Article 6 of the Rules of
the Committee on Accountability of Public Officers
and Investigations (Blue Ribbon).
The Senate expects your explanation on or before 2
December 2007.
On November 29, 2007, petitioner replied to respondent
Committees, manifesting that it was not his intention to ignore the Senate
hearing and that he thought the only remaining questions were those he
claimed to be covered by executive privilege, thus:
It was not my intention to snub the last
Senate hearing. In fact, I have cooperated with the
task of the Senate in its inquiry in aid of legislation as
shown by my almost 11 hours stay during the hearing
on 26 September 2007. During said hearing, I
answered all the questions that were asked of me, save
for those which I thought was covered by executive
privilege, and which was confirmed by the Executive
Secretary in his Letter 15 November 2007. In good
faith, after that exhaustive testimony, I thought that
what remained were only the three questions, where
the Executive Secretary claimed executive
privilege. Hence, his request that my presence be
dispensed with.
Be that as it may, should there be new
matters that were not yet taken up during the 26
September 2007 hearing, may I be furnished in
advance as to what else I need to clarify, so that as a
resource person, I may adequately prepare myself.
For failure to appear and testify in the
Committees hearing on Tuesday, September 18, 2007;
Thursday, September 20, 2007; Thursday, October 25,
2007; and Tuesday, November 20, 2007, despite
personal notice and Subpoenas Ad Testificandum sent
to and received by him, which thereby delays,
impedes and obstructs, as it has in fact delayed,
impeded and obstructed the inquiry into the subject
reported irregularities, AND for failure to explain
satisfactorily why he should not be cited for contempt
(Neri letter of 29 November 2007), herein
attached) ROMULO L. NERI is hereby cited in
contempt of this (sic) Committees and ordered
arrested and detained in the Office of the Senate
Sergeant-At-Arms until such time that he will
appear and give his testimony.
The Sergeant-At-Arms is hereby directed to
carry out and implement this Order and make a return
hereof within twenty four (24) hours from its
enforcement.
SO ORDERED.
On the same date, petitioner moved for the reconsideration of the
above Order.[9] He insisted that he has not shown any contemptible conduct
worthy of contempt and arrest. He emphasized his willingness to testify on
new matters, however, respondent Committees did not respond to his
request for advance notice of questions. He also mentioned the petition
for certiorari he filed on December 7, 2007. According to him, this should
restrain respondent Committees from enforcing the show
cause Letter through the issuance of declaration of contempt and arrest.
In view of respondent Committees issuance of the
contempt Order, petitioner filed on February 1, 2008 a Supplemental

In addition, petitioner submitted a letter prepared by his counsel, Petition for Certiorari (With Urgent Application for TRO/Preliminary
Atty. Antonio R. Bautista, stating, among others that: (1) his (petitioner)
Injunction), seeking to restrain the implementation of the said
non-appearance was upon the order of the President; and (2) his
conversation with President Arroyo dealt with delicate and sensitive contempt Order.
national security and diplomatic matters relating to the impact of the
bribery scandal involving high government officials and the possible loss On February 5, 2008, the Court issued a Status Quo Ante
of confidence of foreign investors and lenders in the Philippines. The letter
ended with a reiteration of petitioners request that he be furnished in Order (a) enjoining respondent Committees from implementing
advance as to what else he needs to clarify so that he may adequately their contempt Order, (b) requiring the parties to observe the status
prepare for the hearing.
In the interim, on December 7, 2007, petitioner filed with this quo prevailing prior to the issuance of the assailed order, and (c) requiring
Court the present petition for certiorari assailing the show respondent Committees to file their comment.
cause Letter dated November 22, 2007.
Petitioner contends that respondent Committees show
Respondent Committees found petitioners explanations cause Letter and
unsatisfactory. Without responding to his request for advance notice of the contempt Order were issued with grave abuse of discretion
matters that he should still clarify, they issued the Order dated January 30, amounting to lack or excess ofjurisdiction. He stresses that his
2008, citing him in contempt of respondent Committees and ordering his conversations with President Arroyo are candid discussions meant to
arrest and detention at the Office of the Senate Sergeant-At-Arms until explore options in making policy decisions. According to him, these
such time that he would appear and give his testimony. The said Order discussions dwelt on the impact of the bribery scandal involving high
states: government officials on the countrys diplomatic relations and
 66

economic and military affairs and the possible loss of confidence of Sec. 1, Art. XI (Public office is a public
foreign investors and lenders in the Philippines. He also emphasizes that trust)
his claim of executive privilege is upon the order of the President and
Sec. 17, Art. VII (The President shall
within the parameters laid down in Senate v. Ermita[10] and United States v. ensure that the laws be faithfully
Reynolds.[11] Lastly, he argues that he is precluded from disclosing executed)
communications made
to him in official confidence under Section 7[12] of Republic Act No. 6713, and the due process clause and the principle
otherwise known as Code of Conduct and Ethical Standards for Public of separation of powers?
Officials and Employees, and Section 24[13] (e) of Rule 130 of the Rules of
2. What is the proper procedure to be followed in
Court.
invoking executive privilege?
Respondent Committees assert the contrary. They argue
3. Did the Senate Committees gravely abuse their
that (1) petitioners testimony is material and pertinent in the investigation discretion in ordering the arrest of petitioner for
conducted in aid of legislation; (2) there is no valid justification for non-compliance with the subpoena?
petitioner to claim executive privilege; (3) there is no abuse of their
authority to order petitioners arrest; and (4) petitioner has not come to court
with clean hands.
After the oral argument, the parties were directed to manifest to

the Court within twenty-four (24) hours if they are amenable to the Courts
In the oral argument held last March 4, 2008, the following
proposal of allowing petitioner to immediately resume his testimony before
issues were ventilated:
the Senate Committees to answer the other questions of the Senators
1. What communications between the President
and petitioner Neri are covered by the principle without prejudice to the decision on the merits of this pending petition. It
of executive privilege?
was understood that petitioner may invoke executive privilege in the course
1.a Did Executive Secretary Ermita correctly
of the Senate Committees proceedings, and if the respondent Committees
invoke the principle of executive privilege,
by order of the President, to disagree thereto, the unanswered questions will be the subject of a
cover (i) conversations of the President in
the exercise of her executive and policy supplemental pleading to be resolved along with the three (3) questions
decision-making
subject of the present petition.[14] At the same time, respondent Committees
and (ii) information, which might impair
our diplomatic as well as economic were directed to submit several pertinent documents.[15]
relations with the Peoples Republic of
China? The Senate did not agree with the proposal for the reasons stated

1.b. Did petitioner Neri correctly invoke in the Manifestation dated March 5, 2008. As to the required
executive privilege to avoid testifying on documents, the Senate and respondent Committees manifested that they
his conversations with the President on the
NBN contract on his assertions that the said would not be able to submit the latters Minutes of all meetings and the
conversationsdealt with delicate and
sensitive national security and Minute Book because it has never been the historical and traditional
diplomatic matters relating to the impact
legislative practice to keep them.[16] They instead submitted the Transcript
of bribery scandal involving high
government officials and the possible loss of Stenographic Notes of respondent Committees joint public hearings.
of confidence of foreign investors and
lenders in the Philippines x x x within the
principles laid down in Senate v. On March 17, 2008, the Office of the Solicitor General (OSG) filed
Ermita (488 SCRA 1 [2006])?
a Motion for Leave to Intervene and to Admit Attached
1.c Will the claim of executive privilege in this Memorandum, founded on the following arguments:
case violate the following provisions of the
Constitution: (1) The communications between petitioner and the
President are covered by the principle of
Sec. 28, Art. II (Full public disclosure of executive privilege.
all transactions involving public
interest) (2) Petitioner was not summoned by respondent
Senate Committees in accordance with the
Sec. 7, Art. III (The right of the people to law-making bodys power to conduct inquiries in
information on matters of public aid of legislation as laid down in Section 21,
concern) Article VI of the Constitution and Senate v.
Ermita.

(3) Respondent Senate Committees gravely abused
its discretion for alleged non-compliance with
the Subpoena dated November 13, 2007.
The Court granted the OSGs motion the next day, March 18,
2008.
As the foregoing facts unfold, related events transpired.
On March 6, 2008, President Arroyo issued Memorandum
Circular No. 151, revoking Executive Order No. 464 and Memorandum
Circular No. 108. She advised executive officials and employees to follow
and abide by the Constitution, existing laws and jurisprudence, including,
among others, the case of Senate v. Ermita[17] when they are invited to
legislative inquiries in aid of legislation.
At the core of this controversy are the two (2) crucial queries, to
wit:
First, are the communications elicited by the subject three (3)
questions covered by executive privilege?
And second, did respondent Committees commit grave abuse of discretion
in issuing the contempt Order?
We grant the petition.
At the outset, a glimpse at the landmark case of Senate v.
Ermita[18] becomes imperative. Senate draws in bold strokes the distinction
between the legislative and oversight powers of the Congress, as embodied
under Sections 21 and 22, respectively, of Article VI of the Constitution, to
wit:
SECTION 21. The Senate or the House of
Representatives or any of
its respective committees may conduct inquiries in
aid of legislation in accordance with its duly
published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be
respected.
SECTION 22. The heads of department may upon
their own initiative, with the consent of the President,
or upon the request of either House, or as the rules of
each House shall provide, appear before and be heard
by such House on any matter pertaining to their
departments. Written questions shall be submitted to
the President of the Senate or the Speaker of the
67
House of Representatives at least three days before
their scheduled appearance. Interpellations shall not
be limited to written questions, but may cover matters
related thereto. When the security of the state or the
public interest so requires and the President so states
in writing, the appearance shall be conducted in
executive session.
Senate cautions that while the above provisions are closely
related and complementary to each other, they should not be considered as
pertaining to the same power of Congress. Section 21 relates to the power
to conduct inquiries in aid of legislation. Its aim is to elicit information that
may be used for legislation. On the other hand, Section 22 pertains to the
power to conduct a question hour, the objective of which is to obtain
information in pursuit of Congress oversight function.[19] Simply stated,
while both powers allow Congress or any of its committees to conduct
inquiry, their objectives are different.
This distinction gives birth to another distinction with regard to
the use of compulsory process. Unlike in Section 21,
Congress cannot compel the appearance of executive officials under
Section 22. The Courts pronouncement in Senate v. Ermita[20] is clear:
When Congress merely seeks to be
informed on how department heads are implementing
the statutes which it has issued, its right to such
information is not as imperative as that of the
President to whom, as Chief Executive, such
department heads must give a report of their
performance as a matter of duty. In such instances,
Section 22, in keeping with the separation of powers,
states that Congress may only request their
appearance. Nonetheless, when the inquiry in which
Congress requires their appearance is in aid of
legislation under Section 21, the appearance
is mandatory for the same reasons stated in Arnault.
In fine, the oversight function of
Congress may be facilitated by compulsory process
only to the extent that it is performed in pursuit of
legislation. This is consistent with the intent discerned
from the deliberations of the Constitutional
Commission
Ultimately, the power of Congress to compel
the appearance of executive officials under section 21
and the lack of it under Section 22 find their basis in
the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature,
it cannot frustrate the power of Congress to legislate by
refusing to comply with its demands for information.
(Emphasis supplied.)
 68

The availability of the power of judicial review to resolve the At this juncture, it must be stressed that the revocation of E.O. 464 does

issues raised in this case has also been settled in Senate v. Ermita, when it not in any way diminish our concept of executive privilege. This is

held: because this concept has Constitutional underpinnings. Unlike the United

As evidenced by the American experience States which has further accorded the concept with statutory status by
during the so-called McCarthy era, however, the right
of Congress to conduct inquiries in aid of legislation is, enacting the Freedom of Information Act[23] and the Federal Advisory
in theory, no less susceptible to abuse than executive or
judicial power. It may thus be subjected to judicial
Committee Act,[24] the Philippines has retained its constitutional
review pursuant to the Courts certiorari powers under
Section 1, Article VIII of the Constitution.
origination, occasionally interpreted only by this Court in various

cases. The most recent of these is the case of Senate v. Ermita where this

Hence, this decision. Court declared unconstitutional substantial portions of E.O. 464. In this

regard, it is worthy to note that Executive Ermitas Letter dated November

I
The Communications Elicited 15, 2007 limits its bases for the claim of executive privilege to Senate v.
by the Three (3) Questions are
Covered by Executive Privilege Ermita, Almonte v. Vasquez,[25] and Chavez v. PEA.[26] There was never a

mention of E.O. 464.

We start with the basic premises where the parties have While these cases, especially Senate v. Ermita,[27] have comprehensively

conceded. discussed the concept of executive privilege, we deem it imperative to

explore it once more in view of the clamor for this Court to clearly define
The power of Congress to conduct inquiries in aid of
the communications covered by executive privilege.
legislation is broad. This is based on the proposition that a legislative body

cannot legislate wisely or effectively in the absence of information The Nixon and post-Watergate cases established the broad

respecting the conditions which the legislation is intended to affect or contours of the presidential communications privilege.[28] In United

change.[21] Inevitably, adjunct thereto is the compulsory process to enforce States v. Nixon,[29] the U.S. Courtrecognized a great public interest in

it. But, the power, broad as it is, has limitations. To be valid, it is preserving the confidentiality of conversations that take place in the

imperative that it is done in accordance with the Senate or House duly Presidents performance of his official duties. It thus considered

published rules of procedure and that the rights of the persons appearing in presidential communications as presumptively privileged. Apparently,

or affected by such inquiries be respected. the presumption is founded on the Presidents generalized interest in

confidentiality. The privilege is said to be necessary to guarantee the

The power extends even to executive officials and the only way
candor of presidential advisors and to provide the President and those
for them to be exempted is through a valid claim of executive
who assist him with freedom to explore alternatives in the process of
privilege.[22] This directs us to the consideration of the question -- is there a
shaping policies and making decisions and to do so in a way many
recognized claim of executive privilege despite the revocation of E.O.
would be unwilling to express except privately.
464?

A- There is a Recognized Claim In In Re: Sealed Case,[30] the U.S. Court of Appeals delved
of Executive Privilege Despite the
Revocation of E.O. 464 deeper. It ruled that there are two (2) kinds of executive privilege; one is

the presidential communications privilege and, the other is

 69

the deliberative process privilege. The former pertains involved is the exercise of the Presidents pardon power, a non-delegable,

to communications, documents or other materials that reflect core-presidential function, the Deputy Attorney General and the Pardon

presidential decision-making and deliberations and that the President Attorney were deemed to be too remote from the President and his

believes should remain confidential. The latter includes advisory senior White House advisors to be protected. The Court conceded that

opinions, recommendations and deliberations comprising part of a

process by which governmental decisions and policies are formulated. functionally those officials were performing a task directly related to the

Accordingly, they are characterized by marked Presidents pardon power, but concluded that an organizational test was

distinctions. Presidential communications privilege applies more appropriate for confining the potentially broad sweep that would

to decision-making of the President while, the deliberative process result from the In Re: Sealed Cases functional test. The majority concluded

privilege, to decision-making of executive officials. The first is rooted that, the lesser protections of the deliberative process privilege would

in the constitutional principle of separation of power and the Presidents suffice. That privilege was, however, found insufficient to justify the

unique constitutional confidentiality of the 4,341 withheld documents.

role; the second on common law privilege. Unlike the deliberative

But more specific classifications of communications covered by executive
process
privilege are made in older cases. Courts ruled early that the Executive has
privilege, the presidential communications privilege applies to
a right to withhold documents that might reveal military or state
documents in their entirety, and covers final and post-decisional
secrets,[34] identity of government informers in some
materials as well as pre-deliberative ones[31] As a consequence,
circumstances,,[35] and information related to pending
congressional or judicial negation of the presidential communications
investigations.[36] An area where the privilege is highly revered is
privilege is always subject to greater scrutiny than denial of
in foreign relations. In United States v. Curtiss-Wright Export
the deliberative process privilege.
Corp.[37] the U.S. Court, citing President George Washington, pronounced:
Turning on who are the officials covered by the presidential
The nature of foreign negotiations requires
communications privilege, In Re: Sealed Case confines the privilege only caution, and their success must often depend on
secrecy, and even when brought to a conclusion, a full
disclosure of all the measures, demands, or eventual
to White House Staff that has operational proximity to direct presidential
concessions which may have been proposed or
contemplated would be extremely impolitic, for this
decision-making. Thus, the privilege is meant to encompass only those might have a pernicious influence on future
negotiations or produce immediate inconveniences,
functions that form the core of presidential authority, involving what the perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy
court characterized as quintessential and non-delegable Presidential was one cogent reason for vesting the power of
making treaties in the President, with the advice and
power, such as commander-in-chief power, appointment and removal consent of the Senate, the principle on which the body
was formed confining it to a small number of
power, the power to grant pardons and reprieves, the sole-authority to members. To admit, then, a right in the House of
Representatives to demand and to have as a matter of
receive ambassadors and other public officers, the power to negotiate course all the papers respecting a negotiation with a
foreign power would be to establish a dangerous
precedent.
treaties, etc.[32]

The situation in Judicial Watch, Inc. v. Department of Justice [33] tested

Majority of the above jurisprudence have found their way in our
the In Re: Sealed Case principles. There, while the presidential decision
jurisdiction. In Chavez v. PCGG[38], this Court held that there is a
 70

governmental privilege against public disclosure with respect to state Republic of China. Simply put, the bases are presidential

communications privilege and executive privilege on matters relating

secrets regarding military, diplomatic and other security matters. In Chavez
to diplomacy or foreign relations.
v. PEA,[39] there is also a recognition of the confidentiality of Presidential

conversations, correspondences, and discussions in closed-door Cabinet Using the above elements, we are convinced that, indeed, the

communications elicited by the three (3) questions are covered by

meetings. In Senate v. Ermita, the concept of presidential
the presidential communications privilege.First, the communications
communications privilege is fully discussed.
relate to a quintessential and non-delegable power of the President, i.e. the

As may be gleaned from the above discussion, the claim of power to enter into an executive agreement with other countries. This

authority of the President to enter into executive agreements without the

executive privilege is highly recognized in cases where the subject of
concurrence of the Legislature has traditionally been recognized in
inquiry relates to a power textually committed by the Constitution to the
Philippine jurisprudence.[45] Second,the communications are received by a
President, such as the area of military and foreign relations. Under our
close advisor of the President. Under the operational proximity test,
Constitution, the President is the repository of the petitioner can be considered a close advisor, being a member of President

commander-in-chief,[40] appointing,[41] pardoning,[42] and Arroyos cabinet. And third, there is no adequate showing of a compelling

diplomatic[43] powers. Consistent with the doctrine of separation of powers, need that would justify the limitation of the privilege and of

the unavailability of the information elsewhere by an appropriate

the information relating to these powers may enjoy greater confidentiality
investigating authority.
than others. The third element deserves a lengthy discussion.

The above cases, especially, Nixon, In Re Sealed United States v. Nixon held that a claim of executive privilege is

Case and Judicial Watch, somehow provide the elements of presidential subject to balancing against other interest. In other words, confidentiality

communications privilege, to wit: in executive privilege is not absolutely protected by the Constitution.

1) The protected communication must relate to a The U.S. Court held:

quintessential and non-delegable presidential
power. [N]either the doctrine of separation of powers, nor the
need for confidentiality of high-level communications,
2) The communication must be authored or solicited without more, can sustain an absolute, unqualified
and received by a close advisor of the Presidential privilege of immunity from judicial
President or the President himself. The process under all circumstances.
judicial test is that an advisor must be in
operational proximity with the President.
The foregoing is consistent with the earlier case of Nixon v.
3) The presidential communications
privilege remains a qualified privilege that Sirica,[46] where it was held that presidential communications are
may be overcome by a showing of adequate
need, such that the information sought likely
presumptively privileged and that the presumption can be overcome only
contains important evidence and by the
unavailability of the information elsewhere
by an appropriate investigating authority.[44] by mere showing of public need by the branch seeking access to

conversations. The courts are enjoined to resolve the competing interests of

In the case at bar, Executive Secretary Ermita premised his claim of
the political branches of the government in the manner that preserves the
executive privilege on the ground that the communications elicited by the
essential functions of each Branch.[47] Here, the record is bereft of any
three (3) questions fall under conversation and correspondence between the

President and public officials necessary in her executive and policy categorical explanation from respondent Committees to show a compelling

decision-making process and, that the information sought to be disclosed or citical need for the answers to the three (3) questions in the enactment of
might impair our diplomatic as well as economic relations with the Peoples a law. Instead, the questions veer more towards the exercise of the
 71

legislative oversight function under Section 22 of Article VI rather than The respondent Committees should cautiously tread into the

Section 21 of the same Article. Senate v. Ermita ruled that the the investigation of matters which may present a conflict of interest that may

oversight function of Congress may be facilitated by compulsory provide a ground to inhibit the Senators participating in the inquiry if later

process only to the extent that it is performed in pursuit of on an impeachment proceeding is initiated on the same subject matter of

legislation. It is conceded that it is difficult to draw the line between an the present Senate inquiry. Pertinently, in Senate Select Committee on

inquiry in aid of legislation and an inquiry in the exercise of oversight Presidential Campaign Activities v. Nixon,[49] it was held that since an

function of Congress. In this regard, much will depend on the content of the impeachment proceeding had been initiated by a House Committee, the

questions and the manner the inquiry is conducted. Senate Select Committees immediate oversight need for five presidential

tapes should give way to the House Judiciary Committee which has the
Respondent Committees argue that a claim of executive
constitutional authority to inquire into presidential impeachment. The Court
privilege does not guard against a possible disclosure of a crime or
expounded on this issue in this wise:
wrongdoing. We see no dispute on this. It is settled in United States v.
It is true, of course, that the Executive
Nixon[48] that demonstrated, specific need for evidence in pending cannot, any more than the other branches of
government, invoke a general confidentiality privilege
criminal trial outweighs the Presidents generalized interest in to shield its officials and employees from
investigations by the proper governmental institutions
confidentiality. However, the present cases distinction with the Nixon case into possible criminal wrongdoing. The Congress
learned this as to its own privileges in Gravel v.
is very evident. In Nixon, there is a pending criminal proceeding United States, as did the judicial branch, in a sense,
in Clark v. United States, and the executive branch
where the information is requested and it is the demands of due process of itself in Nixon v. Sirica. But under Nixon v. Sirica,
the showing required to overcome the presumption
law and the fair administration of criminal justice that the information be favoring confidentiality turned, not on the nature of
the presidential conduct that the subpoenaed material
disclosed. This is the reason why the U.S. Court was quick to limit the might reveal, but, instead, on the nature and
appropriateness of the function in the performance
scope of its decision. It stressed that it is not concerned here with the of which the material was sought, and the degree to
which the material was necessary to its fulfillment.
balance between the Presidents generalized interest in Here also our task requires and our decision
implies no judgment whatever concerning possible
confidentiality x x x and congressional demands for presidential involvement in culpable activity. On
the contrary, we think the sufficiency of the
information. Unlike in Nixon, the information here is elicited, not in a Committee's showing must depend solely on
whether the subpoenaed evidence is demonstrably
criminal proceeding, but in a legislative inquiry. In this regard, Senate v. critical to the responsible fulfillment of the
Committee's functions.
Ermita stressed that the validity of the claim of executive privilege depends
In its initial briefs here, the Committee
not only on the ground invoked but, also, on the procedural setting or argued that it has shown exactly this. It contended that
resolution, on the basis of the subpoenaed tapes, of the
the context in which the claim is made. Furthermore, in Nixon,the conflicts in the testimony before it would aid in a
determination whether legislative involvement in
President did not interpose any claim of need to protect military, diplomatic political campaigns is necessary and could help
engender the public support needed for basic reforms
or sensitive national security secrets. In the present case, Executive in our electoral system. Moreover, Congress has,
according to the Committee, power to oversee the
Secretary Ermita categorically claims executive privilege on the grounds operations of the executive branch, to investigate
instances of possible corruption and malfeasance in
of presidential communications privilege in relation to her executive and office, and to expose the results of its investigations to
public view. The Committee says that with respect to
policy decision-making process and diplomatic secrets. Watergate-related matters, this power has been
delegated to it by the Senate, and that to exercise its
power responsibly, it must have access to the
subpoenaed tapes.
 72

We turn first to the latter contention. In the to official records, and to documents, and papers
circumstances of this case, we need neither deny that pertaining to official acts, transactions, or decisions,
the Congress may have, quite apart from its legislative as well as to government research data used as basis
responsibilities, a general oversight power, nor for policy development, shall be afforded the
explore what the lawful reach of that power might be citizen, subject to such limitations as may be
under the Committee's constituent resolution. Since provided by law.
passage of that resolution, the House Committee on
the Judiciary has begun an inquiry into presidential
impeachment. The investigative authority of the
Judiciary Committee with respect to presidential The provision itself expressly provides the limitation,
conduct has an express constitutional
i.e. as may be provided by law. Some of these laws are Section 7 of
source. x x x We have been shown no evidence
indicating that Congress itself attaches any Republic Act (R.A.) No. 6713,[51] Article 229[52] of
particular value to this interest. In these
circumstances, we think the need for the tapes the Revised Penal Code, Section 3 (k)[53] of R.A. No. 3019, and Section
premised solely on an asserted power to investigate
and inform cannot justify enforcement of the 24(e)[54] of Rule 130 of the Rules of Court. These are in addition to what
Committee's subpoena. our body of jurisprudence classifies as confidential [55] and what our

The sufficiency of the Committee's Constitution considers as belonging to the larger concept of executive
showing of need has come to depend, therefore,
entirely on whether the subpoenaed materials are privilege. Clearly, there is a recognized public interest in the confidentiality
critical to the performance of its legislative functions.
There is a clear difference between Congress' of certain information. We find the information subject of this case
legislative tasks and the responsibility of a grand jury, belonging to such kind.
or any institution engaged in like functions. While
fact-finding by a legislative committee is
undeniably a part of its task, legislative judgments More than anything else, though, the right of Congress or any of its
normally depend more on the predicted
consequences of proposed legislative actions and Committees to obtain information in aid of legislation cannot be equated
their political acceptability, than on precise
reconstruction of past events; Congress frequently with the peoples right to public information. The former cannot claim that
legislates on the basis of conflicting information
provided in its hearings. In contrast, the responsibility every legislative inquiry is an exercise of the peoples right to information.
of the grand jury turns entirely on its ability to
determine whether there is probable cause to believe The distinction between such rights is laid down in Senate v. Ermita:
that certain named individuals did or did not commit
specific crimes. If, for example, as in Nixon v. Sirica, There are, it bears noting, clear distinctions between
one of those crimes is perjury concerning the content the right of Congress to information which underlies
of certain conversations, the grand jury's need for the the power of inquiry and the right of people to
most precise evidence, the exact text of oral information on matters of public concern. For one, the
statements recorded in their original form, is demand of a citizen for the production of documents
undeniable. We see no comparable need in the pursuant to his right to information does not have the
legislative process, at least not in the circumstances same obligatory force as a subpoena duces
of this case. Indeed, whatever force there might once tecum issued by Congress. Neither does the right to
have been in the Committee's argument that the information grant a citizen the power to exact
subpoenaed materials are necessary to its legislative
testimony from government officials. These powers
judgments has been substantially undermined by
belong only to Congress, not to an individual citizen.
subsequent events. (Emphasis supplied)
Thus, while Congress is composed of
representatives elected by the people, it does not
Respondent Committees further contend that the grant of
follow, except in a highly qualified sense, that in
petitioners claim of executive privilege violates the constitutional every exercise of its power of inquiry, the people
provisions on the right of the people to information on matters of public are exercising their right to information.
concern.[50] We might have agreed with such contention if petitioner did not
appear before them at all. But petitioner made himself available to them
during the September 26 hearing, where he was questioned for eleven (11)
The members of respondent Committees should not invoke as justification
hours. Not only that, he expressly manifested his willingness to answer
more questions from the Senators, with the exception only of those covered in their exercise of power a right properly belonging to the people in
by his claim of executive privilege.
general. This is because when they discharge their power, they do so as
The right to public information, like any other right, is subject to public officials and members of Congress. Be that as it may, the right to
limitation. Section 7 of Article III provides:
information must be balanced with and should give way, in appropriate
The right of the people to information on
cases, to constitutional precepts particularly those pertaining to delicate
matters of public concern shall be recognized. Access

interplay of executive-legislative powers and privileges which is the subject
of careful review by numerous decided cases.
B- The Claim of Executive Privilege
is Properly Invoked
We now proceed to the issue -- whether the claim is properly
invoked by the President. Jurisprudence teaches that for the claim to be
properly invoked, there must be a formal claim of privilege, lodged by the
head of the department which has control over the matter.[56] A formal and
proper claim of executive privilege requires a precise and certain reason for
preserving their confidentiality.[57]
The Letter dated November 17, 2007 of Executive Secretary Ermita
satisfies the requirement. It serves as the formal claim of privilege. There,
he expressly states that this Office is constrained to invoke the settled
doctrine of executive privilege as refined in Senate v. Ermita, and has
advised Secretary Neri accordingly. Obviously, he is referring to the
Office of the President. That is more than enough compliance. In Senate v.
Ermita, a less categorical letter was even adjudged to be sufficient.
With regard to the existence of precise and certain reason, we find the
grounds relied upon by Executive Secretary Ermita specific enough so as
not to leave respondent Committees in the dark on how the requested
information could be classified as privileged. The case of Senate v.
Ermita only requires that an allegation be made whether the information
demanded involves military or diplomatic secrets, closed-door Cabinet
meetings, etc. The particular ground must only be specified. The
enumeration is not even intended to be comprehensive.[58] The following
statement of grounds satisfies the requirement:
The context in which executive privilege is being
invoked is that the information sought to be disclosed
might impair our diplomatic as well as economic
relations with the Peoples Republic of China. Given
the confidential nature in which these information
were conveyed to the President, he cannot provide the
Committee any further details of these conversations,
without disclosing the very thing the privilege is
designed to protect.
At any rate, as held further in Senate v. Ermita, [59] the Congress must not
require the executive to state the reasons for the claim with such
particularity as to compel disclosure of the information which the privilege
is meant to protect. This is a matter of respect to a coordinate and co-equal
department.
73
II
Respondent Committees
Committed Grave Abuse of
Discretion in Issuing the
Contempt Order
Grave abuse of discretion means such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, in other
words where the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility and it must be so patent and gross as
to amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.[60]
It must be reiterated that when respondent Committees issued the
show cause Letter dated November 22, 2007, petitioner replied
immediately, manifesting that it was not his intention to ignore the Senate
hearing and that he thought the only remaining questions were the three (3)
questions he claimed to be covered by executive privilege. In addition
thereto, he submitted Atty. Bautistas letter, stating that his non-appearance
was upon the order of the President and specifying the reasons why his
conversations with President Arroyo are covered by executive
privilege. Both correspondences include an expression of his willingness
to testify again, provided he be furnished in advance copies of the
questions. Without responding to his request for advance list of questions,
respondent Committees issued the Order dated January 30, 2008, citing
him in contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-At-Arms until such time that
he would appear and give his testimony. Thereupon, petitioner filed a
motion for reconsideration, informing respondent Committees that he had
filed the present petition for certiorari.
Respondent Committees committed grave abuse of discretion in issuing the
contempt Order in view of five (5) reasons.
First, there being a legitimate claim of executive privilege, the issuance of
the contempt Order suffers from constitutional infirmity.
Second, respondent Committees did not comply with the requirement laid
down in Senate v. Ermita that the invitations should contain the possible
needed statute which prompted the need for the inquiry, along with the
usual indication of the subject of inquiry and the questions relative to and
in furtherance thereof. Compliance with this requirement is imperative,
both under Sections 21 and 22 of Article VI of the Constitution. This must
be so to ensure that the rights of both persons appearing in or affected by

such inquiry are respected as mandated by said Section 21 and by virtue of
the express language of Section 22. Unfortunately, despite petitioners
repeated demands, respondent Committees did not send him an advance list
of questions.
Third, a reading of the transcript of respondent Committees January 30,
2008 proceeding reveals that only a minority of the members of the Senate
Blue Ribbon Committee was present during the deliberation. [61] Section 18
of the Rules of Procedure Governing Inquiries in Aid of
Legislation provides that:
The Committee, by a vote of majority of
all its members, may punish for contempt any witness
before it who disobeys any order of the Committee or
refuses to be sworn or to testify or to answer proper
questions by the Committee or any of its members.
Clearly, the needed vote is a majority of all the members of the Committee.
Apparently, members who did not actually participate in the deliberation
were made to sign the contempt Order. Thus, there is a cloud of doubt as to
the validity of the contempt Order dated January 30, 2008. We quote the
pertinent portion of the transcript, thus:
THE CHAIRMAN (SEN. CAYETANO,
A). For clarification. x x x The Chair will call
either a caucus or will ask the Committee on Rules
if there is a problem. Meaning, if we do not have
the sufficient numbers. But if we have a sufficient
number, we will just hold a caucus to be able to
implement that right away becauseAgain, our
Rules provide that any one held in contempt and
ordered arrested, need the concurrence of a
majority of all members of the said committee and
we have three committees conducting this.
So thank you very much to the members
SEN. PIMENTEL. Mr. Chairman.
THE CHAIRMAN (SEN.
CAYETANO,A). May I recognize the Minority
Leader and give him the floor, Senator Pimentel.
SEN. PIMENTEL. Mr. Chairman, there
is no problem, I think, with consulting the other
committees. But I am of the opinion that the Blue
Ribbon Committee is the lead committee, and
therefore, it should have preference in enforcing its
own decisions. Meaning to say, it is not something
that is subject to consultation with other
committees. I am not sure that is the right
interpretation. I think that once we decide here, we
enforce what we decide, because otherwise, before
74
we know it, our determination is watered down by
delay and, you know, the so-called
consultation that inevitably will have to take place
if we follow the premise that has been explained.
So my suggestion, Mr. Chairman, is
the Blue Ribbon Committee should not forget its the
lead committee here, and therefore, the will of the
lead committee prevails over all the other, you, know
reservations that other committees might have who
are only secondary or even tertiary committees, Mr.
Chairman.
THE CHAIRMAN (SEN. CAYETANO,
A.) Thank you very much to the Minority
Leader. And I agree with the wisdom of his
statements. I was merely mentioning that under
Section 6 of the Rules of the Committee and under
Section 6, The Committee by a vote of a majority of
all its members may punish for contempt any witness
before it who disobeys any order of the Committee.
So the Blue Ribbon Committee is more than willing to
take that responsibility. But we only have six
members here today, I am the seventh as chair and
so we have not met that number.So I am merely
stating that, sir, that when we will prepare the
documentation, if a majority of all members sign and I
am following the Sabio v. Gordon rule wherein I do
believe, if I am not mistaken, Chairman Gordon
prepared the documentation and then either in caucus
or in session asked the other members to sign. And
once the signatures are obtained, solely for the
purpose that Secretary Neri or Mr. Lozada will not be
able to legally question our subpoena as being
insufficient in accordance with law.
SEN. PIMENTEL. Mr. Chairman, the caution that
the chair is suggesting is very well-taken. But Id like
to advert to the fact that the quorum of the committee
is only two as far as I remember.Any two-member
senators attending a Senate committee hearing provide
that quorum, and therefore there is more than a
quorum demanded by our Rules as far as we are
concerned now, and acting as Blue Ribbon Committee,
as Senator Enrile pointed out. In any event, the
signatures that will follow by the additional members
will only tend to strengthen the determination of this
Committee to put its foot forward put down on what is
happening in this country, Mr. Chairman, because it
really looks terrible if the primary Committee of the
Senate, which is the Blue Ribbon Committee, cannot
even sanction people who openly defy, you know, the
summons of this Committee. I know that the Chair is
going through an agonizing moment here. I know
that.But nonetheless, I think we have to uphold, you
know, the institution that we are representing because
the alternative will be a disaster for all of us, Mr.
Chairman. So having said that, Id like to reiterate my
point.
THE CHAIRMAN (SEN. CAYETANO, A.) First of
all, I agree 100 percent with the intentions of the
Minority Leader. But let me very respectfully
disagree with the legal requirements.Because, yes,
we can have a hearing if we are only two but both
 75

under Section 18 of the Rules of the Senate and

under Section 6 of the Rules of the Blue Ribbon being arbitrary and for denying petitioner due process of law. The same
Committee, there is a need for a majority of all
members if it is a case of contempt and arrest. So, I quality afflicted their conduct when they (a) disregarded petitioners motion
am simply trying to avoid the court rebuking the
Committee, which will instead of strengthening will for reconsideration alleging that he had filed the present petition before this
weaken us. But I do agree, Mr. Minority Leader, that
we should push for this and show the executive Court and (b) ignored petitioners repeated request for an advance list of
branch that the well-decided the issue has been
decided upon the Sabio versus Gordon case. And its questions, if there be any aside from the three (3) questions as to which he
very clear that we are all allowed to call
witnesses. And if they refure or they disobey not only claimed to be covered by executive privilege.
can we cite them in contempt and have them
arrested. x x x [62]
Even the courts are repeatedly advised to exercise the power of

contempt judiciously and sparingly with utmost self-restraint with the end
Fourth, we find merit in the argument of the OSG that respondent
in view of utilizing the same for correction and preservation of the dignity
Committees likewise violated Section 21 of Article VI of the Constitution,
of the court, not for retaliation or vindication. [63] Respondent Committees
requiring that the inquiry be in accordance with the duly published rules
should have exercised the same restraint, after all petitioner is not even an
of procedure. We quote the OSGs explanation:
The phrase duly published rules of procedure requires ordinary witness. He holds a high position in a co-equal branch of
the Senate of every Congress to publish its rules of
procedure governing inquiries in aid of legislation government.
because every Senate is distinct from the one before it
or after it. Since Senatorial elections are held every
three (3) years for one-half of the Senates membership, In this regard, it is important to mention that many incidents of
the composition of the Senate also changes by the end
of each term. Each Senate may thus enact a different
judicial review could have been avoided if powers are discharged with
set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid
of legislation conducted by the 14thSenate, are circumspection and deference. Concomitant with the doctrine of separation
therefore, procedurally infirm.
of powers is the mandate to observe respect to a co-equal branch of the

government.
And fifth, respondent Committees issuance of the contempt

Order is arbitrary and precipitate. It must be pointed out that respondent One last word.

Committees did not first pass upon the claim of executive privilege and
The Court was accused of attempting to abandon its constitutional duty
inform petitioner of their ruling. Instead, they curtly dismissed his
when it required the parties to consider a proposal that would lead to a
explanation as unsatisfactory and simultaneously issued the Order citing
possible compromise. The accusation is far from the truth. The Court did so,
him in contempt and ordering his immediate arrest and detention.
only to test a tool that other jurisdictions find to be effective in settling

A fact worth highlighting is that petitioner is not an unwilling witness. similar cases, to avoid a piecemeal consideration of the questions for

He manifested several times his readiness to testify before respondent review and to avert a constitutional crisis between the executive and

Committees. He refused to answer the three (3) questions because he was legislative branches of government.

ordered by the President to claim executive privilege. It behooves

In United States v. American Tel. & Tel Co.,[64] the court
respondent Committees to first rule on the claim of executive privilege and
refrained from deciding the case because of its desire to avoid a resolution
inform petitioner of their finding thereon, instead of peremptorily
that might disturb the balance of power between the two branches and
dismissing his explanation as unsatisfactory. Undoubtedly,
inaccurately reflect their true needs. Instead, it remanded the record to the
respondent Committees actions constitute grave abuse of discretion for
 76

District Court for further proceedings during which the parties are required only way we can preserve the stability of our democratic institutions and

uphold the Rule of Law.

to negotiate a settlement. In the subsequent case of United States v.

American Tel. &Tel Co.,[65] it was held that much of this spirit of
WHEREFORE, the petition is hereby GRANTED. The subject Order
compromise is reflected in the generality of language found in the
dated January 30, 2008, citing petitioner Romulo L. Neri in contempt of the
Constitution. It proceeded to state: Senate Committees and directing his arrest and detention, is hereby
Under this view, the coordinate branches do not exist nullified.
in an exclusively adversary relationship to one another
when a conflict in authority arises. Rather each branch
should take cognizance of an implicit constitutional SO ORDERED.
mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting
branches in the particular fact situation. VIRGILIO O. GARCILLANO, G.R. No. 17033
Petitioner,

- versus -
It thereafter concluded that: The Separation of Powers often
THE HOUSE OF REPRESENTATIVES
impairs efficiency, in terms of dispatch and the immediate functioning COMMITTEES ON PUBLIC INFORMATION,
PUBLIC ORDER AND SAFETY, NATIONAL
of government. It is the long-term staying power of government that is DEFENSE AND SECURITY, INFORMATION AND
COMMUNICATIONS TECHNOLOGY, and
enhanced by the mutual accommodation required by the separation of SUFFRAGE AND ELECTORAL REFORMS,
Respondents.
powers. X----------------------X

SANTIAGO JAVIER RANADA and OSWALDO D.

AGCAOILI,
In rendering this decision, the Court emphasizes once more that the Petitioners,
basic principles of constitutional law cannot be subordinated to the needs of
- versus -
a particular situation. As magistrates, our mandate is to rule G.R. No. 17927
THE SENATE OF THE REPUBLIC OF
objectively and dispassionately, always mindful of Mr. Justice Holmes THE PHILIPPINES, REPRESENTED BY THE
SENATE PRESIDENT THE HONORABLE MANUEL
warning on the dangers inherent in cases of this nature, thus:
VILLAR,
some accident of immediate and Respondent.
overwhelming interestappeals to the feelings and X----------------------X
distorts the judgment. These immediate interests
exercise a kind of hydraulic pressure which makes MAJ. LINDSAY REX SAGGE, Present:
what previously was clear seem doubtful, and before Petitioner-in-Intervention. PUNO, C.J.,
which even well settled principles of law will bend.[66] QUISUMBING,
X----------------------X YNARES-SANT
CARPIO,
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY AUSTRIA-MAR
In this present crusade to search for truth, we should turn to the C. AQUINO, RODOLFO G. BIAZON, PANFILO M. CORONA,*
LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. CARPIO MORA
fundamental constitutional principles which underlie our tripartite system MADRIGAL, and ANTONIO F. TRILLANES, AZCUNA,
Respondents-Intervenors. TINGA,
of government, where the Legislature enacts the law, the Judiciary
CHICO-NAZAR
interprets it and the Executive implements it. They are considered VELASCO, JR.,
NACHURA,
separate, co-equal, coordinate and supreme within their respective spheres REYES,
LEONARDO-D
but, imbued with a system of checks and balances to prevent BRION, JJ.
unwarranted exercise of power. The Courts mandate is to preserve
Promulgated:
these constitutional principles at all times to keep the political branches of
December 23, 20
government within constitutional bounds in the exercise of their respective x-----------------------------------------------------------------------------------------
x
powers and prerogatives, even if it be in the search for truth. This is the
 77

Alarmed by these developments, petitioner Virgilio O.

DECISION
Garcillano (Garcillano) filed with this Court a Petition for Prohibition and
NACHURA, J.: Injunction, with Prayer for Temporary Restraining Order and/or Writ of

Preliminary Injunction[4] docketed as G.R. No. 170338. He prayed that the

More than three years ago, tapes ostensibly containing a respondent House Committees be restrained from using these tape

wiretapped conversation purportedly between the President of recordings of the illegally obtained wiretapped conversations in their

the Philippines and a high-ranking official of the Commission on Elections committee reports and for any other purpose. He further implored that the

(COMELEC) surfaced. They captured unprecedented public attention and said recordings and any reference thereto be ordered stricken off the

thrust the country into a controversy that placed the legitimacy of the records of the inquiry, and the respondent House Committees directed to

present administration on the line, and resulted in the near-collapse of the desist from further using the recordings in any of the House proceedings.[5]

Arroyo government. The tapes, notoriously referred to as the Hello Garci

tapes, allegedly contained the Presidents instructions to COMELEC Without reaching its denouement, the House discussion and

Commissioner Virgilio Garcillano to manipulate in her favor results of the debates on the Garci tapes abruptly stopped.

2004 presidential elections. These recordings were to become the subject of

heated legislative hearings conducted separately by committees of both After more than two years of quiescence, Senator Panfilo Lacson

Houses of Congress.[1] roused the slumbering issue with a privilege speech, The Lighthouse That

Brought Darkness. In his discourse, Senator Lacson promised to provide

In the House of Representatives (House), on June 8, 2005, then the public the whole unvarnished truth the whats, whens, wheres, whos and

Minority Floor Leader Francis G. Escudero delivered a privilege speech, whys of the alleged wiretap, and sought an inquiry into the perceived

Tale of Two Tapes, and set in motion a congressional investigation jointly willingness of telecommunications providers to participate in nefarious

conducted by the Committees on Public Information, Public Order and wiretapping activities.

Safety, National Defense and Security, Information and Communications

Technology, and Suffrage and Electoral Reforms (respondent House On motion of Senator Francis Pangilinan, Senator Lacsons

Committees). During the inquiry, several versions of the wiretapped speech was referred to the Senate Committee on National Defense and

conversation emerged.But on July 5, 2005, National Bureau of Security, chaired by Senator Rodolfo Biazon, who had previously filed two

Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia and the bills[6] seeking to regulate the sale, purchase and use of wiretapping

lawyer of former NBI Deputy Director Samuel Ong submitted to the equipment and to prohibit the Armed Forces of the Philippines (AFP) from

respondent House Committees seven alleged original tape recordings of the performing electoral duties.[7]

supposed three-hour taped conversation. After prolonged and impassioned

debate by the committee members on the admissibility and authenticity of In the Senates plenary session the following day, a lengthy

the recordings, the tapes were eventually played in the chambers of the debate ensued when Senator Richard Gordon aired his concern on the

House.[2] possible transgression of Republic Act (R.A.) No. 4200 [8] if the body were

to conduct a legislative inquiry on the matter. On August 28, 2007, Senator

On August 3, 2005, the respondent House Committees decided Miriam Defensor-Santiago delivered a privilege speech, articulating her

to suspend the hearings indefinitely. Nevertheless, they decided to prepare considered view that the Constitution absolutely bans the use, possession,

committee reports based on the said recordings and the testimonies of the replay or communication of the contents of the Hello Garci tapes. However,

resource persons.[3] she recommended a legislative investigation into the role of the Intelligence

Service of the AFP (ISAFP), the Philippine National Police or other
government entities in the alleged illegal wiretapping of public officials. [9]
On September 6, 2007, petitioners Santiago Ranada and
Oswaldo Agcaoili, retired justices of the Court of Appeals, filed before this
Court a Petition for Prohibition with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary
Injunction,[10] docketed as G.R. No. 179275, seeking to bar the Senate from
conducting its scheduled legislative inquiry. They argued in the main that
the intended legislative inquiry violates R.A. No. 4200 and Section 3,
Article III of the Constitution.[11]
As the Court did not issue an injunctive writ, the Senate
proceeded with its public hearings on the Hello Garci tapes on September
7,[12] 17[13] and October 1,[14] 2007.
Intervening as respondents,[15] Senators Aquilino Q. Pimentel, Jr.,
Benigno Noynoy C. Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren
B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F. Trillanes filed their
Comment[16] on the petition on September 25, 2007.
The Court subsequently heard the case on oral argument.[17]
On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the
ISAFP and one of the resource persons summoned by the Senate to appear
and testify at its hearings, moved to intervene as petitioner in G.R. No.
179275.[18]
On November 20, 2007, the Court resolved to consolidate G.R.
[19]
Nos. 170338 and 179275.
It may be noted that while both petitions involve the Hello Garci
recordings, they have different objectivesthe first is poised at preventing
the playing of the tapes in the House and their subsequent inclusion in the
committee reports, and the second seeks to prohibit and stop the conduct of
the Senate inquiry on the wiretapped conversation.
78
The Court dismisses the first petition, G.R. No. 170338, and
grants the second, G.R. No. 179275.
-I-
Before delving into the merits of the case, the Court shall first
resolve the issue on the parties standing, argued at length in their pleadings.
In Tolentino v. COMELEC,[20] we explained that [l]egal standing
or locus standi refers to a personal and substantial interest in a case such
that the party has sustained or will sustain direct injury because of the
challenged governmental act x x x, thus,
generally, a party will be allowed to litigate only when
(1) he can show that he has personally suffered some
actual or threatened injury because of the allegedly
illegal conduct of the government; (2) the injury is
fairly traceable to the challenged action; and (3) the
injury is likely to be redressed by a favorable
action.[21]
The gist of the question of standing is whether a party has alleged such a
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions.[22]
However, considering that locus standi is a mere procedural
technicality, the Court, in recent cases, has relaxed the stringent direct
injury test. David v. Macapagal-Arroyo[23] articulates that a liberal policy
has been observed, allowing ordinary citizens, members of Congress, and
civic organizations to prosecute actions involving the constitutionality or
validity of laws, regulations and rulings.[24] The fairly recent Chavez v.
Gonzales[25] even permitted a non-member of the broadcast media, who
failed to allege a personal stake in the outcome of the controversy, to
challenge the acts of the Secretary of Justice and the National
Telecommunications Commission. The majority, in the said case, echoed
the current policy that this Court has repeatedly and consistently refused to
wield procedural barriers as impediments to its addressing and resolving
serious legal questions that greatly impact on public interest, in keeping
with the Courts duty under the 1987 Constitution to determine whether or
not other branches of government have kept themselves within the limits of
 79

the Constitution and the laws, and that they have not abused the discretion Following the Courts ruling in Francisco, Jr. v. The House of

given to them.[26] Representatives,[31] we find sufficient petitioners Ranadas and Agcaoilis

and intervenor Sagges allegation that the continuous conduct by the Senate

In G.R. No. 170338, petitioner Garcillano justifies his standing of the questioned legislative inquiry will necessarily involve the

to initiate the petition by alleging that he is the person alluded to in the expenditure of public funds.[32] It should be noted that in Francisco, rights

Hello Garci tapes. Further, his was publicly identified by the members of personal to then Chief Justice Hilario G. Davide, Jr. had been injured by

the respondent committees as one of the voices in the the alleged unconstitutional acts of the House of Representatives, yet the

recordings.[27] Obviously, therefore, petitioner Garcillano stands to be Court granted standing to the petitioners therein for, as in this case, they

directly injured by the House committees actions and charges of electoral invariably invoked the vindication of their own rightsas taxpayers,

fraud. The Court recognizes his standing to institute the petition for members of Congress, citizens, individually or in a class suit, and members

prohibition. of the bar and of the legal professionwhich were also supposedly violated

by the therein assailed unconstitutional acts.[33]

In G.R. No. 179275, petitioners Ranada and Agcaoili justify

their standing by alleging that they are concerned citizens, taxpayers, and Likewise, a reading of the petition in G.R. No. 179275 shows

members of the IBP. They are of the firm conviction that any attempt to use that the petitioners and intervenor Sagge advance constitutional issues

the Hello Garci tapes will further divide the country. They wish to see the which deserve the attention of this Court in view of their seriousness,

legal and proper use of public funds that will necessarily be defrayed in the novelty and weight as precedents. The issues are of transcendental and

ensuing public hearings. They are worried by the continuous violation of paramount importance not only to the public but also to the Bench and the

the laws and individual rights, and the blatant attempt to abuse Bar, and should be resolved for the guidance of all.[34]

constitutional processes through the conduct of legislative inquiries

purportedly in aid of legislation.[28] Thus, in the exercise of its sound discretion and given the liberal

attitude it has shown in prior cases climaxing in the more recent case

Intervenor Sagge alleges violation of his right to due process of Chavez, the Court recognizes the legal standing of petitioners Ranada

considering that he is summoned to attend the Senate hearings without and Agcaoili and intervenor Sagge.

being apprised not only of his rights therein through the publication of the

Senate Rules of Procedure Governing Inquiries in Aid of Legislation, but - II -

also of the intended legislation which underpins the investigation. He The Court, however, dismisses G.R. No. 170338 for being moot

further intervenes as a taxpayer bewailing the useless and wasteful and academic. Repeatedly stressed in our prior decisions is the principle

expenditure of public funds involved in the conduct of the questioned that the exercise by this Court of judicial power is limited to the

hearings.[29] determination and resolution of actual cases and controversies. [35] By actual

cases, we mean existing conflicts appropriate or ripe for judicial

Given that petitioners Ranada and Agcaoili allege an interest in determination, not conjectural or anticipatory, for otherwise the decision of

the execution of the laws and that intervenor Sagge asserts his the Court will amount to an advisory opinion. The power of judicial inquiry

constitutional right to due process,[30] they satisfy the requisite personal does not extend to hypothetical questions because any attempt at

stake in the outcome of the controversy by merely being citizens of the abstraction could only lead to dialectics and barren legal questions and to

Republic. sterile conclusions unrelated to actualities.[36] Neither will the Court

determine a moot question in a case in which no practical relief can be

granted. A case becomes moot when its purpose has become stale. [37] It is
 80

unnecessary to indulge in academic discussion of a case presenting a moot The respondents in G.R. No. 179275 admit in their pleadings and

question as a judgment thereon cannot have any practical legal effect or, in even on oral argument that the Senate Rules of Procedure Governing

the nature of things, cannot be enforced.[38] Inquiries in Aid of Legislation had been published in newspapers of general

circulation only in 1995 and in 2006.[45] With respect to the present Senate

In G.R. No. 170338, petitioner Garcillano implores from the of the 14th Congress, however, of which the term of half of its members

Court, as aforementioned, the issuance of an injunctive writ to prohibit the commenced on June 30, 2007, no effort was undertaken for the publication

respondent House Committees from playing the tape recordings and from of these rules when they first opened their session.

including the same in their committee report. He likewise prays that the

said tapes be stricken off the records of the House proceedings. But the Recently, the Court had occasion to rule on this very same

Court notes that the recordings were already played in the House and heard question. In Neri v. Senate Committee on Accountability of Public Officers

by its members.[39] There is also the widely publicized fact that the and Investigations,[46] we said:

committee reports on the Hello Garci inquiry were completed and

Fourth, we find merit in the argument of
submitted to the House in plenary by the respondent committees.[40] Having the OSG that respondent Committees likewise
violated Section 21 of Article VI of the Constitution,
been overtaken by these events, the Garcillano petition has to be dismissed
requiring that the inquiry be in accordance with
for being moot and academic. After all, prohibition is a preventive remedy the duly published rules of procedure. We quote the
OSGs explanation:
to restrain the doing of an act about to be done, and not intended to provide
The phrase duly
a remedy for an act already accomplished.[41] published rules of procedure
requires the Senate of every
Congress to publish its rules of
- III - procedure governing inquiries in
aid of legislation because every
Senate is distinct from the one
before it or after it. Since
As to the petition in G.R. No. 179275, the Court grants the same.
Senatorial elections are held
The Senate cannot be allowed to continue with the conduct of the every three (3) years for one-half
of the Senates membership, the
questioned legislative inquiry without duly published rules of procedure, in composition of the Senate also
changes by the end of each
clear derogation of the constitutional requirement.
term. Each Senate may thus
enact a different set of rules as it
may deem fit. Not having
Section 21, Article VI of the 1987 Constitution explicitly published its Rules of
Procedure, the subject hearings
provides that [t]he Senate or the House of Representatives, or any of its in aid of legislation conducted
respective committees may conduct inquiries in aid of legislation in by the 14th Senate, are
therefore, procedurally infirm.
accordance with its duly published rules of procedure. The requisite of

publication of the rules is intended to satisfy the basic requirements of due

Justice Antonio T. Carpio, in his Dissenting and Concurring
process.[42] Publication is indeed imperative, for it will be the height of
Opinion, reinforces this ruling with the following rationalization:
injustice to punish or otherwise burden a citizen for the transgression of a

law or rule of which he had no notice whatsoever, not even a constructive
[43]
one. What constitutes publication is set forth in Article 2 of the Civil
Code, which provides that [l]aws shall take effect after 15 days following
the completion of their publication either in the Official Gazette, or in a
newspaper of general circulation in the Philippines.[44]
The present Senate under the 1987 Constitution is no
longer a continuing legislative body. The present
Senate has twenty-four members, twelve of whom are
elected every three years for a term of six years
each. Thus, the term of twelve Senators expires every
three years, leaving less than a majority of Senators
to continue into the next Congress. The 1987
Constitution, like the 1935 Constitution, requires a
majority of Senators to constitute a quorum to do
business. Applying the same reasoning in Arnault v.

Nazareno, the Senate under the 1987 Constitution is
not a continuing body because less than majority of
the Senators continue into the next Congress. The
consequence is that the Rules of Procedure must be
republished by the Senate after every expiry of the
term of twelve Senators.[47]
The subject was explained with greater lucidity in our Resolution[48] (On
the Motion for Reconsideration) in the same case, viz.:
On the nature of the Senate as a continuing body, this
Court sees fit to issue a clarification. Certainly, there
is no debate that the Senate as an institution is
continuing, as it is not dissolved as an entity with each
national election or change in the composition of its
members. However, in the conduct of its day-to-day
business the Senate of each Congress acts separately
and independently of the Senate of the Congress
before it. The Rules of the Senate itself confirms this
when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business
at the end of the session shall be
taken up at the next session in
the same status.
All pending matters and
proceedings shall terminate
upon the expiration of one (1)
Congress, but may be taken by
the succeeding Congress as if
present for the first time.
Undeniably from the foregoing, all pending matters
and proceedings, i.e., unpassed bills and even
legislative investigations, of the Senate of a particular
Congress are considered terminated upon the
expiration of that Congress and it is merely optional
on the Senate of the succeeding Congress to take up
such unfinished matters, not in the same status, but
as if presented for the first time. The logic and
practicality of such a rule is readily apparent
considering that the Senate of the succeeding
Congress (which will typically have a different
composition as that of the previous Congress) should
not be bound by the acts and deliberations of the
Senate of which they had no part. If the Senate is a
continuing body even with respect to the conduct of
its business, then pending matters will not be deemed
terminated with the expiration of one Congress but
will, as a matter of course, continue into the next
Congress with the same status.
This dichotomy of the continuity of the Senate as an
institution and of the opposite nature of the conduct of
its business is reflected in its Rules. The Rules of the
Senate (i.e. the Senates main rules of procedure)
states:
RULE LI
81
AMENDMENTS TO, OR REVISIONS OF, THE
RULES
SEC. 136. At the start of each
session in which the Senators
elected in the preceding elections
shall begin their term of office,
the President may endorse the
Rules to the appropriate
committee for amendment or
revision.
The Rules may also be amended
by means of a motion which
should be presented at least one
day before its consideration, and
the vote of the majority of the
Senators present in the session
shall be required for its approval.
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take
effect on the date of their
adoption and shall remain in
force until they are amended or
repealed.
Section 136 of the Senate Rules quoted above takes
into account the new composition of the Senate after
an election and the possibility of the amendment or
revision of the Rules at the start of each session in
which the newly elected Senators shall begin their
term.
However, it is evident that the Senate has determined
that its main rules are intended to be valid from the
date of their adoption until they are amended or
repealed. Such language is conspicuously absent from
the Rules. The Rules simply state (t)hese Rules shall
take effect seven (7) days after publication in two (2)
newspapers of general circulation. The latter does not
explicitly provide for the continued effectivity of such
rules until they are amended or repealed. In view of
the difference in the language of the two sets of
Senate rules, it cannot be presumed that the Rules (on
legislative inquiries) would continue into the next
Congress. The Senate of the next Congress may easily
adopt different rules for its legislative inquiries which
come within the rule on unfinished business.
The language of Section 21, Article VI of the
Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of
procedure is categorical. It is incumbent upon the
Senate to publish the rules for its legislative inquiries
in each Congress or otherwise make the published
rules clearly state that the same shall be effective in
subsequent Congresses or until they are amended or
repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present
rules on legislative inquiries to be effective even in
the next Congress, it could have easily adopted the
 82

same language it had used in its main rules regarding

effectivity. messages and/or electronic documents.[52] It does not make the internet a

medium for publishing laws, rules and regulations.

Respondents justify their non-observance of the constitutionally

Given this discussion, the respondent Senate Committees,
mandated publication by arguing that the rules have never been amended
therefore, could not, in violation of the Constitution, use its unpublished
since 1995 and, despite that, they are published in booklet form available to
rules in the legislative inquiry subject of these consolidated cases. The
anyone for free, and accessible to the public at the Senates internet web
conduct of inquiries in aid of legislation by the Senate has to be deferred
page.[49]
until it shall have caused the publication of the rules, because it can do so

only in accordance with its duly published rules of procedure.

The Court does not agree. The absence of any amendment to the

rules cannot justify the Senates defiance of the clear and unambiguous
Very recently, the Senate caused the publication of the Senate
language of Section 21, Article VI of the Constitution. The organic law
Rules of Procedure Governing Inquiries in Aid of Legislation in
instructs, without more, that the Senate or its committees may conduct
the October 31, 2008 issues of Manila Bulletin and Malaya. While we take
inquiries in aid of legislation only in accordance with duly published rules
judicial notice of this fact, the recent publication does not cure the infirmity
of procedure, and does not make any distinction whether or not these rules
of the inquiry sought to be prohibited by the instant petitions.Insofar as the
have undergone amendments or revision. The constitutional mandate to
consolidated cases are concerned, the legislative investigation subject
publish the said rules prevails over any custom, practice or tradition
thereof still could not be undertaken by the respondent Senate Committees,
followed by the Senate.
because no published rules governed it, in clear contravention of the

Constitution.
Justice Carpios response to the same argument raised by the

respondents is illuminating:
With the foregoing disquisition, the Court finds it unnecessary to
The publication of the Rules of discuss the other issues raised in the consolidated petitions.
Procedure in the website of the Senate, or in pamphlet
form available at the Senate, is not sufficient under
the Taada v. Tuvera ruling which requires publication
either in the Official Gazette or in a newspaper of WHEREFORE, the petition in G.R. No. 170338
general circulation. The Rules of Procedure even is DISMISSED, and the petition in G.R. No. 179275 is GRANTED. Let a
provide that the rules shall take effect seven (7) days
after publication in two (2) newspapers of general writ of prohibition be issued enjoining the Senate of the Republic of
circulation, precluding any other form of
publication. Publication in accordance with Taada is the Philippines and/or any of its committees from conducting any inquiry in
mandatory to comply with the due process
aid of legislation centered on the Hello Garci tapes.
requirement because the Rules of Procedure put a
persons liberty at risk. A person who violates
the Rules of Procedure could be arrested and detained
by the Senate. SO ORDERED.

9. Other Powers:

The invocation by the respondents of the provisions of R.A. No. a) Oversight

8792,[50] otherwise known as the Electronic Commerce Act of 2000, to G.R. No. 166715 August 14, 2008
support their claim of valid publication through the internet is all the more
ABAKADA GURO PARTY LIST (formerly
incorrect. R.A. 8792 considers an electronic data message or an electronic AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED
VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE
document as the functional equivalent of a written document only
and EDWIN R. SANDOVAL, petitioners,
for evidentiary purposes.[51] In other words, the law merely recognizes the vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance,
admissibility in evidence (for their being the original) of electronic data HON. GUILLERMO L. PARAYNO, JR., in his capacity as

Commissioner of the Bureau of Internal Revenue, and HON.
ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of
Customs, respondents.
DECISION
CORONA, J.:
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
83
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
committee on the ground that it violates the doctrine of separation of
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.
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:
84
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:
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;
85
(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 Percent (%) of the Excess Collection to Ac
Revenue Targets
30% or below – 15%
More than 30% – 15% of the first 30% plus 20% of the rem

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 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)
86
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.
87
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 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 x x x x x
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.
88
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.43It 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
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 statute50and 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.54Second, 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.
89
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
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.
b) Act as board of canvassers for presidential election
[G.R. No. 163783.� June 22, 2004]
PIMENTEL vs. CONGRESS
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court
dated JUN 22 2004.
G. R. No. 163783 (Aquilino Q. Pimentel, Jr. vs. Joint Committee of
Congress to Canvass the Votes Cast for President and Vice-President in the
May 10, 2004 Elections.)
RESOLUTION
By the present Petition for Prohibition, petitioner Senator Aquilino Q.
Pimentel, Jr. seeks a judgment declaring null and void the continued
existence of the Joint Committee of Congress (Joint Committee) to
90
determine the authenticity and due execution of the certificates of canvass
and preliminarily canvass the votes cast for Presidential and
Vice-Presidential candidates in the May 10, 2004 elections following the
adjournment of Congress sine die on June 11, 2004. The petition corollarily
prays for the issuance of a writ of prohibition directing the Joint Committee
to cease and desist from conducting any further proceedings pursuant to the
Rules of the Joint Public Session of Congress on Canvassing.
Petitioner posits that with "the adjournment sine die on June 11, 2004 by
the Twelfth Congress of its last regular session, [its] term ... terminated and
expired on the said day and the said Twelfth Congress serving the term
2001 to 2004 passed out of legal existence." Henceforth, petitioner goes on,
"all pending matters and proceedings terminate upon the expiration of ...
Congress." To advance this view, he relies on "legislative procedure,
precedent or practice [as] borne [out] by the rules of both Houses of
Congress."
Given the importance of the constitutional issue raised and to put to rest all
questions regarding the regularity, validity or constitutionality of the
canvassing of votes fro President and Vice-President in the recently
concluded national elections, this Court assumes jurisdiction over the
instant petition pursuant to its power and duty "to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government" under Section 1 of Article VIII of the Constitution and its
original jurisdiction over petitions for prohibition under Section 5 of the
same Article.
After a considered and judicious examination of the arguments raised by
petitioner as well as those presented in the Comments filed by the Solicitor
General and respondent Joint Committee, this Court finds that the petition
has absolutely no basis under the Constitution and must, therefore, be
dismissed.
Petitioner's claim that his arguments are buttressed by "legislative
procedure, precedent or practice [as] borne [out] by the rules of both
Houses of Congress" is directly contradicted by Section 42 of Rule XIV of
the Rules adopted by the Senate, of which he is an incumbent member.�
This section clearly provides that the Senate shall convene in joint
session during any voluntary or compulsory recess to canvass the votes
for President and Vice-President not later than thirty days after the day of
the elections in accordance with Section 4, Article VII of the Constitution.
Moreover, as pointed out in the Comment filed by the Senate Panel for
respondent Joint Committee and that of the Office of the Solicitor General,
the precedents set by the 1992 and 1998 Presidential Elections do not
support the move to stop the ongoing canvassing by the Joint Committee,
they citing the observations of former Senate President Jovito Salonga.
Thus, during the 1992 Presidential elections, both Houses of Congress
adjourned sine die on May 25, 1992. On June 16, 1992, the Joint
Committee finished tallying the votes for President and
Vice-President.[1]cralaw Thereafter, on June 22, 1992, the Eighth Congress
convened in joint public session as the National Board of Canvassers, and
on even date proclaimed Fidel V. Ramos and Joseph Ejercito Estrada as
President and Vice-President, respectively.[2]cralaw
Upon the other hand, during the 1998 Presidential elections, both Houses of
Congress adjourned sine dieon May 25, 1998. The Joint Committee
completed the counting of the votes for President and Vice-President on
May 27, 1998.[3]cralaw The Tenth Congress then convened in joint public
session on May 29, 1998 as the National Board of Canvassers and
proclaimed Joseph Ejercito Estrada as President and Gloria
Macapagal-Arroyo as President and Vice-President, respectively.[4]cralaw
 91

As for petitioner's argument that "the [e]xistence and [p]roceedings [o]f the c) Call a special election for presidency
Joint Committee of Congress [a]re [i]nvalid, [i]llegal and [u]nconstitutional
[f]ollowing the [a]djournment [s]ine [d]ie [o]f [b]oth Houses of Congress d) Decide on disability of the President
[o]f [t]heir [r]egular [s]essions on June 11, 2004," he cites in support
e) Legislative veto or extension for suspension of writ of
thereof Section 15, Article VI of the Constitution which reads:
habeas corpus or declaration of martial law

Sec. 15. The Congress shall convene once every year on the fourth Monday
of July for its regular session, unless a different date is fixed by law, and
shall continue to be in session for such number of days as it may determine
until thirty days before the opening of its next regular session, exclusive of
Saturdays, Sundays, and legal holidays. The President may call a special
session at any time.
Contrary to petitioner's argument, however, the term of the present Twelfth
Congress did not terminate and expire upon the adjournment sine die of the
regular session of both Houses on June 11, 2004.
G.R. No. 231671
ALEXANDER A. PADILLA, RENE A.V. SAGUISAG, CHRISTIAN S.
MONSOD, LORETTA ANN P. ROSALES, RENE B. GOROSPE, and
SENATOR LEILA M. DE LIMA, Petitioners
vs.
CONGRESS OF THE PHILIPPINES, consisting of the SENATE OF
THE PHILIPPINES, as represented by Senate President Aquilino
"Koko" Pimentel III, and the HOUSE OF REPRESENTATIVES, as
represented by House Speaker Pantaleon D. Alvarez, Respondents

Section 15, Article VI of the Constitution cited by petitioner does not

x-----------------------x
pertain to the term of Congress, but to its regular annual legislative
sessions and the mandatory 30-day recess before the opening of its next
regular session (subject to the power of the President to call a special G.R. No. 231694
session at any time).
FORMER SEN. WIGBERTO E. TANADA, BISHOP EMERITUS
Section 4 of Article VIII also of the Constitution clearly provides that DEOGRACIAS S. INIGUEZ, BISHOP BRODERICK PABILLO,
"[t]he term of office of the Senators shall be six years and shall commence, BISHOP ANTONIO R. TOBIAS, MO. ADELAIDA YGRUBAY,
unless otherwise provided by law, at noon on the thirtieth day of June next SHAMAH BULANGIS and CASSANDRA D. DELURIA, Petitioners,
following their election." Similarly, Section 7 of the same Article provides vs.
that "[t]he Members of the House of Representatives shall be elected for CONGRESS OF THE PHILIPPINES, CONSISTING OF THE
a term of three years which shall begin, unless otherwise provided by law, SENATE AND THE HOUSE OF REPRESENTATIVES, AQUILINO
at noon on the thirtieth day of June next following their election." "KOKO" PIMENTEL III, President, Senate of the Philippines, and
Consequently, there being no law to the contrary, until June 30, 2004, the PANTALEON D. ALVAREZ, Speaker, House of the
present Twelfth Congress to which the present legislators belong cannot be Representatives, Respondents
said to have "passed out of legal existence."
DECISION
The legislative functions of the Twelfth Congress may have come to a
close upon the final adjournment of its regular sessions on June 11, 2004, LEONARDO-DE CASTRO, J.:
but this does not affect its non-legislative functions, such as that of being
the National Board of Canvassers. In fact, the joint public session of both
These consolidated petitions under consideration essentially assail the
Houses of Congress convened by express directive of Section 4, Article VII
failure and/or refusal of respondent Congress of the Philippines (the
of the Constitution to canvass the votes for and to proclaim the newly
Congress), composed of the Senate and the House of Representatives, to
elected President and Vice-President has not, and cannot, adjourn sine
convene in joint session and therein deliberate on Proclamation No. 216
dieuntil it has accomplished its constitutionally mandated tasks. For only
issued on May 23, 201 7 by President Rodrigo Roa Duterte (President
when a board of canvassers has completed its functions is it
Duterte). Through Proclamation No. 216, President Duterte declared a state
rendered functus officio. Its membership may change, but it retains its
of martial law and suspended the privilege of the writ of habeas corpus in
authority as a board until it has accomplished its purposes. (Pelayo v.
the whole of Mindanao for a period not e:xceeding sixty (60) days effective
Commission on Elections, 23 SCRA 1374, 1385 [1968], citing Bautista v.
from the date of the proclamation's issuance.
Fugoso, 60 Phil. 383, 389 [1934] and Aquino v. Commission on Elections,
L-28392, January 29 1968)
In the Petition for Mandamus of Alex.antler A. Padilla (Padilla), Rene A.V.
Saguisag (Saguisag), Christian S. Monsod (Monsod), Loretta Ann P.
Since the Twelfth Congress has not yet completed its non-legislative duty
Rosales (Rosales), Rene B. Gorospe (Gorospe), and Senator Leila M. De
to canvass the votes and proclaim the duly elected President and
Lima (Senator De Lima), filed on June 6, 2017 and docketed as G.R. No.
Vice-President, its existence as the National Board of Canvassers, as well
231671 (the Padilla Petition), petitioners seek a ruling from the Court
as that of the Joint Committee to which it referred the preliminary tasks of
directing the Congress to convene in joint session to deliberate on
authenticating and canvassing the certificates of canvass, has not
Presidential Proclamation No. 216, and to vote thereon.1
become functus officio.

In the Petition for Certiorari and Mandamus of former Senator Wigberto E.

In sum, despite the adjournment sine die of Congress, there is no legal
Tanada (Tanada), Bishop Emeritus Deogracias Iniguez (Bishop Iniguez),
impediment to the Joint Committee completing the tasks assigned to it and
Bishop Broderick Pabillo (Bishop Pabillo ), Bishop Antonio Tobias
transmitting its report for the approval of the joint public session of both
(Bishop Tobias), Mo. Adelaida Ygrubay (Mo. Y grubay), Shamah Bulangis
Houses of Congress, which may reconvene without need of call by the
(Bulangis), and Cassandra D. Deluria (Deluria), filed on June 7, 2017 and
President to a special session.
docketed as G.R. No. 231694 (the Tañada Petition), petitioners entreat the
Court to: (a) declare the refusal of the Congress to convene in joint session
WHEREFORE, the instant Petition is hereby DISMISSED. for the purpose of considering Proclamation No. 216 to be in grave abuse
 92

of discretion amounting to a lack or excess of jurisdiction; and (b) issue a P.S. Resolution No. 390, on the other hand, garnered only nine (9) votes
writ of mandamus directing the Congress to convene in joint session for the from the senators who were in favor of it as opposed to twelve (12) votes
aforementioned purpose.2 from the senators who were against its approval and adoption. 7

Respondent Congress, represented by the Office of the Solicitor General
(OSG), filed its Consolidated Comment on June 27, 2017. Respondents
Senate of the Philippines and Senate President Aquilino "Koko" Pimentel
III (Senate President Pimentel), through the Office of the Senate Legal
Counsel, separately filed their Consolidated Comment (Ex Abudanti
Cautela) on June 29, 2017.
ANTECEDENT FACTS
On May 23, 2017, President Duterte issued Proclamation No. 216,
declaring a state of martial law and suspending the privilege of the writ
of habeas corpus in the Mindanao group of islands on the grounds of
rebellion and necessity of public safety pursuant to Article VII, Section 18
of the 1987 Constitution.
On May 31, 201 7, the House of Representatives, having previously
constituted itself as a Committee of the Whole House,8 was briefed by
Executive Secretary Salvador C. Medialdea (Executive Secretary
Medialdea), Secretary Lorenzana, and other security officials for about six
(6) hours. After the closed-door briefing, the House of Representatives
resumed its regular meeting and deliberated on House Resolution No. 1050
entitled "Resolution Expressing the Full Support of the House of
Representatives to President Rodrigo Duterte as it Finds No Reason to
Revoke Proclamation No. 216, Entitled 'Declaring a State of Martial Law
and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of
Mindanao.'"9 The House of Representatives proceeded to divide its
members on the matter of approving said resolution through viva
voce voting. The result shows that the members who were in favor of
passing the subject resolution secured the majority vote.10

The House of Representatives also purportedly discussed the proposal

Within forty-eight (48) hours after the proclamation, or on May 25, 2017,
and while the Congress was in session, President Duterte transmitted his
"Report relative to Proclamation No. 216 dated 23 May 2017" (Report) to
the Senate, through Senate President Pimentel, and the House of
Representatives, through House Speaker Pantaleon D. Alvarez (House
Speaker Alvarez).
calling for a joint session of the Congress to deliberate and vote on
President Duterte's Proclamation No. 216. After the debates, however, the
proposal was rejected.11
These series of events led to the filing of the present consolidated petitions.

According to President Duterte's Proclamation No. 216 and his Report to THE PARTIES' ARGUMENTS
the Congress, the declaration of a state of martial law and the suspension of
the privilege of the writ of habeas corpus in the whole of Mindanao ensued The Padilla Petition
from the series of armed attacks, violent acts, and atrocities directed against
civilians and government authorities, institutions, and establishments Petitioners in G.R. No. 231671 raise the question of "[w]hether Congress is
perpetrated by the Abu Sayyaf and Maute terrorist groups, in complicity required to convene in joint session, deliberate, and vote jointly under
with other local and foreign armed affiliates, who have pledged allegiance Article VII, [Section] 18 of the Constitution" and submit the following
to the Islamic State of Iraq and Syria (ISIS), to sow lawless violence, terror, arguments in support of their petition:
and political disorder over the said region for the ultimate purpose of
establishing a DAESH wilayah or Islamic Province in Mindanao.
[I] THE PETITION SATISFIES THE REQUISITES
FOR THE EXERCISE OF THE HONORABLE
Representatives from the Executive Department, the military, and other COURT'S POWER OF JUDICIAL REVIEW.
security officials of the government were thereafter invited, on separate
occasions, by the Senate and the House of Representatives for a conference
briefing regarding the circumstances, details, and updates surrounding the [i] THERE IS AN ACTUAL
President's proclamation and report. CASE OR CONTROVERSY.

On May 29, 2017, the briefing before the Senate was conducted, which [ii] PETITIONERS, AS PART
lasted for about four (4) hours, by Secretary of National Defense Delfin N. OF THE PUBLIC AND AS
Lorenza (Secretary Lorenzana), National Security Adviser and Director TAXPAYERS, POSSESS
General of the National Security Council Hermogenes C. Esperon, Jr. LEGAL STANDING TO FILE
(Secretary Esperon), and Chief of Staff of the Armed Forces of the THIS PETITION.
Philippines (AFP) General Eduardo M. Afio (General Año). The following
day, May 30, 2017, the Senate deliberated on these proposed resolutions: (a) [iii] PETITIONER [DE LIMA],
Proposed Senate (P.S.) Resolution No. 388, 3 which expressed support for AS MEMBER OF CONGRESS,
President Duterte's Proclamation No. 216; and (b) P.S. Resolution No. HAS LEGAL STANDING TO
390,4 which called for the convening in joint session of the Senate and the FILE THIS PETITION.
House of Representatives to deliberate on President Duterte's Proclamation
No. 216. [iv] THE CASE AND THE
ISSUE INVOLVED ARE RIPE
P.S. Resolution No. 388 was approved, after receiving seventeen (17) FOR JUDICIAL
affirmative votes as against five (5) negative votes, and was adopted as DETERMINATION.
Senate Resolution No. 495 entitled "Resolution Expressing the Sense of the
Senate Not to Revoke, at this Time, Proclamation No. 216, Series of 2017, [II] THE PLAIN TEXT OF THE CONSTITUTION,
Entitled 'Declaring a State of Martial Law and Suspending the Privilege of SUPPORTED BY THE EXPRESS INTENT OF THE
the Writ of Habeas Corpus in the Whole of Mindanao.’"6 FRAMERS, AND CONFIRMED BY THE
SUPREME COURT, REQUIRES THAT
 93

CONGRESS CONVENE IN JOINT SESSION TO As for the substantive issue, it is the primary contention of petitioners that a
DELIBERATE AND VOTE AS A SINGLE plain reading of Article VII, Section 18 of the Constitution shows that the
DELIBERATIVE BODY. Congress is required to convene in joint session to review Proclamation No.
216 and vote as a single deliberative body. The performance of the
[i] THE PLAIN TEXT OF THE constitutional obligation is allegedly mandatory, not discretionary. 16
CONSTITUTION REQUIRES
THAT CONGRESS CONVENE According to petitioners, the discretionary nature of the phrase "may
IN JOINT SESSION. revoke such proclamation or suspension" under Article VII, Section 18 of
the Constitution allegedly pertain to the power of the Congress to revoke
[ii] THE EXPRESS INTENT OF but not to its obligation to jointly convene and vote - which, they stress, is
THE FRAMERS IS FOR mandatory. To require the Congress to convene only when it exercises the
CONGRESS TO CONVENE IN power to revoke is purportedly absurd since the Congress, without
JOINT SESSION TO convening in joint session, cannot know beforehand whether a majority
DELIBERATE AND VOTE AS vote in fact exists to effect a revocation.17
A SINGLE DELIBERATIVE
BODY. Petitioners claim that in Fortun v. Macapagal-Arroyo,18 this Court
described the "duty" of the Congress to convene in joint session as
[iii] THE SUPREME COURT "automatic." The convening of the Congress in joint session when former
CONFIRMED IN FORTUN v. President Gloria Macapagal-Arroyo (President Macapagal-Arroyo)
GMA THAT CONGRESS HAS declared martial law and suspended the privilege of the writ of habeas
THE "AUTOMATIC DUTY" corpus in Maguindanao was also a legislative precedent where the
TO CONVENE IN JOINT Congress clearly recognized its duty to convene in joint session.19
SESSION.
The mandate upon the Congress to convene jointly is allegedly intended by
[iv] LEGISLATIVE the 1986 Constitutional Commission (ConCom) to serve as a protection
PRECEDENT ALSO against potential abuses in the exercise of the President's power to declare
RECOGNIZES CONGRESS' martial law and suspend the privilege of the writ of habeas corpus. It is "a
DUTY TO CONVENE IN mechanism purposely designed by the Constitution to compel Congress to
JOINT SESSION. review the propriety of the President's action x x x [and] meant to contain
martial law powers within a democratic framework for the preservation of
democracy, prevention of abuses, and protection of the people."20
[III] THE REQUIREMENT TO ACT AS A SINGLE
DELIBERATIVE BODY UNDER ARTICLE VII,
[SECTION] 18 OF THE CONSTITUTION IS A The Tañada Petition
MANDATORY, MINISTERIAL
CONSTITUTIONAL DUTY OF CONGRESS, The petitioners in G.R. No. 231694 chiefly opine that:
WHICH CAN BE COMPELLED BY MANDAMUS.12
I. A PLAIN READING OF THE 1987
Petitioners claim that there is an actual case or controversy in this instance CONSTITUTION LEADS TO THE INDUBITABLE
and that their case is ripe for adjudication. According to petitioners, the CONCLUSION THAT A JOINT SESSION OF
resolutions separately passed by the Senate and the House of CONGRESS TO REVIEW A DECLARATION OF
Representatives, which express support as well as the intent not to revoke MARTIAL LAW BY THE PRESIDENT IS
President Duterte's Proclamation No. 216, injure their rights "to a proper MANDATORY.
[and] mandatory legislative review of the declaration of martial law" and
that the continuing failure of the Congress to convene in joint session II. FAIL URE TO CONVENE A JOINT SESSION
similarly causes a continuing injury to their rights. 13 DEPRIVES LAWMAKERS OF A DELIBERATIVE
AND INTERROGATORY PROCESS TO REVIEW
Petitioners also allege that, as citizens and taxpayers, they all have locus MARTIAL LAW.
standi in their "assertion of a public right" which they have been deprived
of when the Congress refused and/or failed to convene in joint session to III. FAIL URE TO CONVENE A JOINT SESSION
deliberate on President Duterte's Proclamation No. 216. Senator De Lima DEPRIVES THE PUBLIC OF TRANSPARENT
adds that she, together with the other senators who voted in favor of the PROCEEDINGS WITHIN WHICH TO BE
resolution to convene the Congress jointly, were even effectively denied INFORMED OF THE FACTUAL BASES OF
the opportunity to perform their constitutionally-mandated duty, under MARTIAL LAW AND THE INTENDED
Article VII, Section 18 of the Constitution, to deliberate on the said PARAMETERS OF ITS IMPLEMENTATION.
proclamation of the President in a joint session of the Congress.14

IV. THE FRAMERS OF THE CONSTITUTION

On the propriety of resorting to the remedy of mandamus, petitioners posit INTENDED THAT A JOINT SESSION OF
that ''the duty of Congress to convene in joint session upon the CONGRESS BE CONVENED IMMEDIATELY
proclamation of martial law or the suspension of the privilege of the writ AFTER THE DECLARATION OF MARTIAL
of habeas corpus does not require the exercise of discretion." Such LAW.21
mandate upon the Congress is allegedly a purely ministerial act which can
be compelled through a writ of mandamus.15
Similar to the contentions in the Padilla Petition, petitioners maintain that
they have sufficiently shown all the essential requisites in order for this

Court to exercise its power of judicial review, in that: (1) an actual case or
controversy exists; (2) they possess the standing to file this case; (3) the
constitutionality of a governmental act has been raised at the earliest
possible opportunity; and (4) the constitutionality of the said act is the
very lis mota of the petition.
According to petitioners, there is an actual case or controversy because the
failure and/or refusal of the Congress to convene jointly deprived
legislators of a venue within which to raise a motion for revocation (or
even extension) of President Duterte's Proclamation No. 216 and the public
of an opportunity to be properly informed as to the bases and particulars
thereof.22
Petitioners likewise claim to have legal standing to sue as citizens and
taxpayers. Nonetheless, they submit that the present case calls for the
Court's liberality in the appreciation of their locus standi given the fact that
their petition presents "a question of first impression - one of paramount
importance to the future of our democracy - as well as the extraordinary
nature of Martial Law itself."23
Petitioners contend that the convening of the Congress in joint session,
whenever the President declares martial law or suspends the privilege of
the writ of habeas corpus, is a public right and duty mandated by the
Constitution. The writ of mandamus is, thus, the "proper recourse for
citizens who seek to enforce a public right and to compel the performance
of a public duty, especially when the public right involved is mandated by
the Constitution."24
For this group of petitioners, the Members of the Congress gravely abused
their discretion for their refusal to convene in joint session, underscoring
that "[w]hile a writ of mandamus will not generally lie from one branch of
the government to a coordinate branch, or to compel the performance of a
discretionary act, this admits of certain exceptions, such as in instances of
gross abuse of discretion, manifest injustice, or palpable excess of authority,
when there is no other plain, speedy and adequate remedy."25
As to the merits, petitioners assert that the convening of the Congress in
joint session after the declaration of martial law is mandatory under Article
VII, Section 18 of the Constitution, whether or not the Congress is in
session or there is intent to revoke. It is their theory that a joint session
should be a deliberative process in which, after debate and discussion,
legislators can come to an informed decision as to the factual and legal
bases for the declaration of martial law. Moreover, "legislators who wish to
revoke the martial law proclamation should have the right to put that vote
on historical record in joint session - and, in like manner, the public should
have the right to know the position of their legislators with respect to this
matter of the highest national interest."26
Petitioners add that a public, transparent, and deliberative process is
purportedly necessary to allay the people's fears against "executive
overreach." This concern allegedly cannot be addressed by briefings in
executive sessions given by representatives of the Executive Branch to both
Houses of the Congress.27
Petitioners further postulate that, based on the deliberations of the Members
of the ConCom, the phrase "voting jointly" under Article VII, Section 18
was intended to mean that a joint session is a procedural requirement,
necessary for the Congress to decide whether to revoke, affirm, or even
extend the declaration of martial law.28
Consolidation of Respondents' Comments
94
Respondents assert firmly that there is no mandatory duty on their part to
"vote jointly," except in cases of revocation or extension of the
proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus.29 In the absence of such duty, the non-convening of the
Congress in joint session does not pose any actual case or controversy that
may be the subject of judicial review.30 Additionally, respondents argue
that the petitions raise a political question over which the Court has no
jurisdiction.
Petitioners' avowal that they are citizens and taxpayers is allegedly
inadequate to clothe them with locus standi. Generalized interests, albeit
accompanied by the assertion of a public right, do not establish locus
standi. Petitioners must show that they have a direct and personal interest
in the Congress' failure to convene in joint session, which they failed to
present herein. A taxpayer's suit is likewise proper only when there is an
exercise of the spending or taxing power of the Congress. However, in
these cases, the funds used in the implementation of martial law in
Mindanao are taken from those funds already appropriated by the Congress.
Senator De Lima's averment of her locus standi as an incumbent member
of the legislature similarly lacks merit. Insofar as the powers of the
Congress are not impaired, there is no prejudice to each Member thereof;
and even assuming arguendo that the authority of the Congress is indeed
compromised, Senator De Lima still does not have standing to file the
present petition for mandamus because it is not shown that she has been
allowed to participate in the Senate sessions during her incarceration. She
cannot, therefore, claim that she has suffered any direct injury from the
non-convening of the Congress in joint session.31
Respondents further contend that the constitutional right to information, as
enshrined under Article III, Section 7 of the Constitution, is not absolute.
Matters affecting national security are considered as a valid exception to
the right to information of the public. For this reason, the petitioners' and
the public's right to participate in the deliberations of the Congress
regarding the factual basis of a martial law declaration may be restricted in
the interest of national security and public safety.32
Respondents allege that petitioners failed to present an appropriate case
for mandamus to lie. Mandamus will only issue when the act to be
compelled is a clear legal duty or a ministerial duty imposed by law upon
the defendant or respondent to perform the act required that the law
specifically enjoins as a duty resulting from office, trust, or station.33
According to respondents, it is erroneous to assert that it is their ministerial
duty to convene in joint session whenever martial law is proclaimed or the
privilege of the writ of habeas corpus is suspended in the absence of a clear
and specific constitutional or legal provision. In fact, Article VII, Section
18 does not use the words ''joint session" at all, much less impose the
convening of such joint session upon the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus. What the
Constitution requires is joint voting when the action of the Congress is to
revoke or extend the proclamation or suspension.34
Indeed, prior concurrence of the Congress is not constitutionally required
for the effectivity of the proclamation or suspension. Quoting from the
deliberations of the framers of the Constitution pertaining to Article VII,
Section 18, the Congress points out that it was the intention of the said
framers to grant the President the power to declare martial law or suspend
the privilege of the writ of habeas corpus for a period not exceeding sixty
(60) days without the concurrence of the Congress. There is absolutely
nothing under the Constitution that mandates the Congress to convene in
joint session when their intention is merely to discuss, debate, and/or
review the factual and legal basis for the proclamation. That is why the
phrase "voting jointly" is limited only in case the Congress intends to
revoke the proclamation.35 In a situation where the Congress is not in

session, the Constitution simply provides that the Congress must convene
in accordance with its rules but does not state that it must convene in joint
session. Respondents further refer to the proper procedure for the holding
of joint sessions.
Respondents brush aside as mere obiter dictum the Court's pronouncement
in the Fortun case that it is the duty of the Congress to convene upon the
declaration of martial law. That whether or not the Congress should
convene in joint session in instances where it is not revoking the
proclamation was not an issue in that case. Moreover, the factual
circumstances in the Fortun case are entirely different from the present
cases. The Congress then issued a concurrent resolution calling for the
convening of a joint session as the intention - at least as far as the Senate
was concerned - was to revoke the proclamation of martial law and the
suspension of the privilege of the writ of habeas corpus in Maguindanao.
The Fortun case then cannot be considered a legislative precedent of an
"automatic convening of a joint session by the Congress upon the
President's proclamation of martial law."36
Respondents argue that the remedy of certiorari is likewise unavailing. To
justify judicial intervention, the abuse of discretion must be so patent and
gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform a duty enjoined by law or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason
of passion or hostility.37 The Congress has the duty to convene and vote
jointly only in two (2) instances, as respondents have already explained.
The Congress had even issued their respective resolutions expressing their
support to, as well as their intent not to revoke, President Duterte's
Proclamation No. 216. There then can be no evasion of a positive duty or a
virtual refusal to perform a duty on the part of the Congress if there is no
duty to begin with.38
Respondents respectfully remind the Court to uphold the "constitutional
demarcation of the three fundamental powers of government." 39 The Court
may not intervene in the internal affairs of the Legislature and it is not
within the province of the courts to direct the Congress how to do its work.
Respondents stress that this Court cannot direct the Congress to convene in
joint session without violating the basic principle of the separation of
powers.40
Subsequent Events
On July 14, 2017, petitioners in G.R. No. 231671, the Padilla Petition, filed
a Manifestation, calling the attention of the Court to the imminent
expiration of the sixty (60)-day period of validity of Proclamation No. 216
on July 22, 2017. Despite the lapse of said sixty (60)-day period, petitioners
exhort the Court to still resolve the instant cases for the guidance of the
Congress, State actors, and all Filipinos.
On July 22, 2017, the Congress convened in joint session and, with two
hundred sixty-one (261) votes in favor versus eighteen (18) votes against,
overwhelmingly approved the extension of the proclamation of martial law
and the suspension of the privilege of the writ of habeas corpus in
Mindanao until December 31, 2017.
STATEMENT OF THE ISSUES
After a meticulous consideration of the parties' submissions, we synthesize
them into the following fundamental issues:
I. Whether or not the Court has jurisdiction over the
subject matter of these consolidated petitions;
95
II. Whether or not the petitions satisfy the requisites
for the Court's exercise of its power of judicial review;
III. Whether or not the Congress has the mandatory
duty to convene jointly upon the President's
proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus under Article
VII, Section 18 of the 1987 Constitution; and
IV. Whether or not a writ
of mandamus or certiorari may be issued in the
present cases.
THE COURT'S RULING
The Court's jurisdiction over these
consolidated petitions
The principle of separation of powers
The separation of powers doctrine is the backbone of our tripartite system
of government. It is implicit in the manner that our Constitution lays out in
separate and distinct Articles the powers and prerogatives of each co-equal
branch of government. In Belgica v. Ochoa,41 this Court had the
opportunity to restate:
The principle of separation of powers refers to the
constitutional demarcation of the three fundamental
powers of government. In the celebrated words of
Justice Laurel in Angara v. Electoral Commission, it
means that the "Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments
of the government." To the legislative branch of
government, through Congress, belongs the power to
make laws; to the executive branch of government,
through the President, belongs the power to enforce
laws; and to the judicial branch of government,
through the Court, belongs the power to interpret laws.
Because the three great powers have been, by
constitutional design, ordained in this respect,
"[ e ]ach department of the government has exclusive
cognizance of matters within its jurisdiction, and is
supreme within its own sphere." Thus, "the legislature
has no authority to execute or construe the law, the
executive has no authority to make or construe the law,
and the judiciary has no power to make or execute the
law." The principle of separation of powers and its
concepts of autonomy and independence stem from
the notion that the powers of government must be
divided to avoid concentration of these powers in any
one branch; the division, it is hoped, would avoid any
single branch from lording its power over the other
branches or the citizenry. To achieve this purpose, the
divided power must be wielded by co-equal branches
of government that are equally capable of independent
action in exercising their respective mandates. Lack of
independence would result in the inability of one
branch of government to check the arbitrary or
self-interest assertions of another or others.
(Emphases supplied, citations omitted.)

Contrary to respondents' protestations, the Court's exercise of jurisdiction
over these petitions cannot be deemed as an unwarranted intrusion into the
exclusive domain of the Legislature. Bearing in mind that the principal
substantive issue presented in the cases at bar is the proper interpretation of
Article VII, Section 18 of the 1987 Constitution, particularly regarding the
duty of the Congress to vote jointly when the President declares martial law
and/or suspends the privilege of the writ of habeas corpus, there can be no
doubt that the Court may take jurisdiction over the petitions. It is the
prerogative of the Judiciary to declare "what the law is."42 It is worth
repeating here that:
[W]hen the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution
and to establish for the parties in an actual controversy
the rights which that instrument secures and
guarantees to them.43 (Emphases supplied.)
Political question doctrine
Corollary to respondents' invocation of the principle of separation of
powers, they argue that these petitions involve a political question in which
the Court may not interfere. It is true that the Court continues to recognize
questions of policy as a bar to its exercise of the power of judicial
review.44 However, in a long line of cases,45 we have given a limited
application to the political question doctrine.
In The Diocese of Bacolod v. Commission on Elections, 46 we emphasized
that the Court's judicial power as conferred by the Constitution has been
expanded to include "the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." Further, in past cases, the
Court has exercised its power of judicial review noting that the requirement
of interpreting the constitutional provision involved the legality and not
the wisdom of a manner by which a constitutional duty or power was
exercised.47
In Association of Medical Clinics for Overseas Workers, Inc. (AMCOW)
v. GCC Approved Medical Centers Association, Inc.,48 we explained the
rationale behind the Court's expanded certiorari jurisdiction. Citing former
Chief Justice and Constitutional Commissioner Roberto R. Concepcion in
his sponsorship speech for Article VIII, Section 1 of the Constitution, we
reiterated that the courts cannot hereafter evade the duty to settle matters,
by claiming that such matters constitute a political question.
Existence of the requisites for judicial review
Petitioners' legal standing
Petitioners in G.R. No. 231671 allege that they are suing in the following
capacities: (1) Padilla as a member of the legal profession representing
victims of human rights violations, and a taxpayer; (2) Saguisag as a human
rights lawyer, former member of the Philippine Senate, and a taxpayer; (3)
Monsod as a framer of the Philippine Constitution and member of the 1986
Con Com, and a taxpayer; (4) Rosales as a victim of human rights
violations committed under martial law declared by then President
Ferdinand E. Marcos, and a taxpayer; (5) Gorospe as a lawyer and a
96
taxpayer; and (6) Senator De Lima as an incumbent Member of the
Philippine Senate, a human rights advocate, a former Secretary of Justice,
Chairperson of the Commission on Human Rights, and a taxpayer.
On the other hand, in G.R. No. 231694, while petitioner Tañada sues in his
capacity as a Filipino citizen and former legislator, his co-petitioners
(Bishop Iniguez, Bishop Pabillo, Bishop Tobias, Mo. Ygrubay, Bulangis,
and Deluria) all sue in their capacity as Filipino citizens.
Respondents insist that none of the petitioners have legal standing, whether
as a citizen, taxpayer, or legislator, to file the present cases.1avvphi1
The Court has consistently held that locus standi is a personal and
substantial interest in a case such that the party has sustained or will sustain
direct injury as a result of the challenged governmental act. The question is
whether the challenging party alleges such personal stake in the outcome of
the controversy so as to assure the existence of concrete adverseness that
would sharpen the presentation of issues and illuminate the court in ruling
on the constitutional question posed.49
Petitioners satisfy these standards.
The Court has recognized that every citizen has the right, if not the duty, to
interfere and see that a public offense be properly pursued and punished,
and that a public grievance be remedied.50 When a citizen exercises this
"public right" and challenges a supposedly illegal or unconstitutional
executive or legislative action, he represents the public at large, thus,
clothing him with the requisite locus standi. He may not sustain an injury
as direct and adverse as compared to others but it is enough that he
sufficiently demonstrates in his petition that he is entitled to protection or
relief from the Court in the vindication of a public right. 51
Verily, legal standing is grounded on the petitioner's personal interest in the
controversy. A citizen who files a petition before the court asserting a
public right satisfies the requirement of personal interest simply because
the petitioner is a member of the general public upon which the right is
vested.52 A citizen's personal interest in a case challenging an allegedly
unconstitutional act lies in his interest and duty to uphold and ensure the
proper execution of the law.53
The present petitions have been filed by individuals asserting that the
Senate and the House of Representatives have breached an allegedly
constitutional duty to convene in joint session to deliberate on Presidential
Proclamation No. 216. The citizen-petitioners' challenge of a purportedly
unconstitutional act in violation of a public right, done in behalf of the
general public, gives them legal standing.
On the other hand, Senator De Lima questions the Congress' failure to
convene in joint session to deliberate on Proclamation No. 216, which,
according to the petitioners, is the legislature's constitutional duty.
We have ruled that legislators have legal standing to ensure that the
constitutional prerogatives, powers, and privileges of the Members of the
Congress remain inviolate.54 Thus, they are allowed to question the validity
of any official action - or in these cases, inaction - which, to their
mind, infringes on their prerogatives as legislators.55
Actual case or controversy
It is long established that the power of judicial review is limited to actual
cases or controversies. There is an actual case or controversy where there is
a conflict of legal rights, an assertion of opposite legal claims, where the

contradiction of the rights can be interpreted and enforced on the basis of
existing law and jurisprudence.56
There are two conflicting claims presented before the Court: on the one
hand, the petitioners' assertion that the Congress has the mandatory duty
to convene in joint session to deliberate on Proclamation No. 216; and, on
the other, the respondents' view that so convening in joint session
is discretionary on the part of the Congress.
Petitioners seek relief through a writ of mandamus and/or certiorari.
Mandamus is a remedy granted by law when any tribunal, corporation,
board, officer, or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust,
or station, or unlawfully excludes another from the use or enjoyment of a
right or office to which such other is entitled.57 Certiorari, as a special civil
action, is available only if: (1) it is directed against a tribunal, board, or
officer exercising judicial or quasi-judicial functions; (2) the tribunal, board,
or officer acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction; and (3) there is no
appeal nor any plain, speedy, and adequate remedy in the ordinary course
of law.58 With respect to the Court, however, certiorari is broader in scope
and reach, and it may be issued to correct errors of jurisdiction committed
not only by a tribunal, corporation, board, or officer exercising judicial,
quasi-judicial, or ministerial functions, but also to set right, undo, and
restrain any act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the Government, even if
the latter does not exercise judicial, quasi-judicial or ministerial
functions.59
As the present petitions allege an omission on the part of the Congress that
constitutes neglect of their constitutional duties, the petitions make a prima
facie case for mandamus, and an actual case or controversy ripe for
adjudication exists. When an act or omission of a branch of government is
seriously alleged to have infringed the Constitution, it becomes not only the
right but, in fact, the duty of the judiciary to settle the dispute. 60
Respondents aver that the Congress cannot be compelled to do something
that is discretionary on their part nor could they be guilty of grave abuse of
discretion in the absence of any mandatory obligation to jointly convene on
their part to affirm the President's proclamation of martial law. Thus,
petitioners are not entitled to the reliefs prayed for in their petitions
for mandamus and/or certiorari; consequently, no actual case or
controversy exists.
There is no merit to respondents' position.
For the Court to exercise its power of judicial review and give due course
to the petitions, it is sufficient that the petitioners set forth their material
allegations to make out a prima facie case
for mandamus or certiorari.61 Whether the petitioners are actually and
ultimately entitled to the reliefs prayed for is exactly what is to be
determined by the Court after careful consideration of the parties' pleadings
and submissions.
Liberality in cases of transcendental importance
In any case, it is an accepted doctrine that the Court may brush aside
procedural technicalities and, nonetheless, exercise its power of judicial
review in cases of transcendental importance.
There are marked differences between the Chief Executive's military
powers, including the power to declare martial law, as provided under the
present Constitution, in comparison to that granted in the 1935 Constitution.
97
Under the 1935 Constitution,62 such powers were seemingly limitless,
unrestrained, and purely subject to the President's wisdom and discretion.
At present, the Commander-in-Chief still possesses the power to suspend
the privilege of the writ of habeas corpus and to proclaim martial law.
However, these executive powers are now subject to the review of both the
legislative and judicial branches. This check-and-balance mechanism was
installed in the 1987 Constitution precisely to prevent potential abuses of
these executive prerogatives.
Inasmuch as the present petitions raise issues concerning the Congress' role
in our government's system of checks and balances, these are matters of
paramount public interest or issues of transcendental importance deserving
the attention of the Court in view of their seriousness, novelty, and weight
as precedents.63
Mootness
The Court acknowledges that the main relief prayed for in the present
petitions (i.e., that the Congress be directed to convene in joint session and
therein deliberate whether to affirm or revoke Proclamation No. 216) may
arguably have been rendered moot by: (a) the lapse of the original sixty (60)
days that the President's martial law declaration and suspension of the
privilege of the writ of habeas corpus were effective under Proclamation
No. 216; (b) the subsequent extension by the Congress of the proclamation
of martial law and the suspension of the privilege of the writ of habeas
corpus over the whole of Mindanao after convening in joint session on July
22, 2017; and (c) the Court's own decision in Lagman v.
Medialdea,64 wherein we ruled on the sufficiency of the factual bases for
Proclamation No. 216 under the original period stated therein.
In David v. Macapagal-Arroyo, the jurisprudential rules regarding
mootness were succinctly summarized, thus:
A moot and academic case is one that ceases to
present a justiciable controversy by virtue of
supervening events, so that a declaration thereon
would be of no practical use or value. Generally,
courts decline jurisdiction over such case or dismiss it
on ground of mootness.
xxxx
The "moot and academic" principle is not a magical
formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise
moot and academic, if: first, there is a grave violation
of the Constitution; second, the exceptional character
of the situation and the paramount public interest is
involved; third, when constitutional issue raised
requires formulation of controlling principles to guide
the bench, the bar, and the public; and fourth, the case
is capable of repetition yet evading
review.65 (Emphasis supplied, citations omitted.)
It cannot be gainsaid that there are compelling and weighty reasons for the
Court to proceed with the resolution of these consolidated petitions on the
merits. As explained in the preceding discussion, these cases involve a
constitutional issue of transcendental significance and novelty. A definitive
ruling from this Court is imperative not only to guide the Bench, the Bar,
and the public but, more importantly, to clarify the parameters of
congressional conduct required by the 1987 Constitution, in the event of a
repetition of the factual precedents that gave rise to these cases.

The duty of the Congress to vote jointly
under Article VII, Section 18
We now come to the crux of the present petitions - the issue of whether or
not under Article VII, Section 18 of the 1987 Constitution, it is mandatory
for the Congress to automatically convene in joint session in the event that
the President proclaims a state of martial law and/or suspends the privilege
of the writ of habeas corpus in the Philippines or any part thereof.
The Court answers in the negative. The Congress is not constitutionally
mandated to convene in joint session except to vote jointly to revoke the
President's declaration or suspension.
By the language of Article VII, Section 18
of the 1987 Constitution, the Congress is
only required to vote jointly to revoke the
President's proclamation of martial law
and/or suspension of the privilege of the writ
of habeas corpus.
Article VII, Section 18 of the 1987 Constitution fully
reads:
Sec. 18. The President shall be the
Commander-in-Chief of allarmed forces of the
Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or
place the Philippines or any part thereof under martial
law. Within forty-eight hours from the proclamation
of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special
session, may revoke such proclamation or suspension
which revocation shall not be set aside by the
President. Upon the initiative of the President, the
Congress may, in the same manner, extend such
proclamation or suspension for a period to be
determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within
twenty-four hours following such proclamation or
suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon
within thirty days from its filing.
A state of martial law does not suspend the operation
of the Constitution, nor supplant the functioning of the
civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to
98
function, nor automatically suspend the privilege of
the writ.
The suspension of the privilege of the writ shall apply
only to persons judicially charged for rebellion or
offenses inherent in or directly connected with
invasion.
During the suspension of the privilege of the writ, any
person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be
released. (Emphasis supplied.)
Outside explicit constitutional limitations, the Commander-in-Chief clause
in Article VII, Section 18 of the 1987 Constitution vests on the President,
as Commander-in-Chief, absolute authority over the persons and actions of
the members of the armed forces,66 in recognition that the President, as
Chief Executive, has the general responsibility to promote public peace,
and as Commander-in-Chief, the more specific duty to prevent and
suppress rebellion and lawless violence.67 However, to safeguard against
possible abuse by the President of the exercise of his power to proclaim
martial law and/or suspend the privilege of the writ of habeas corpus, the
1987 Constitution, through the same provision, institutionalized checks and
balances on the President's power through the two other co-equal and
independent branches of government, i.e., the Congress and the Judiciary.
In particular, Article VII, Section 18 of the 1987 Constitution requires the
President to submit a report to the Congress after his proclamation of
martial law and/or suspension of the privilege of the writ of habeas
corpus and grants the Congress the power to revoke, as well as extend, the
proclamation and/or suspension; and vests upon the Judiciary the power to
review the sufficiency of the factual basis for such proclamation and/or
suspension.
There are four provisions in Article VII, Section 18 of the 1987
Constitution specifically pertaining to the role of the Congress when the
President proclaims martial law and/or suspends the privilege of the writ
of habeas corpus, viz.:
a. Within forty-eight (48) hours from the proclamation
of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress;
b. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special
session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the
President;
c. Upon the initiative of the_ President, the Congress
may, in the same manner. extend such proclamation or
suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist; and
d. The Congress, if not in session, shall within
twenty-four hours (24) following such proclamation
or suspension, convene in accordance with its rules
without need of call.
There is no question herein that the first provision was complied with, as
within forty-eight (48) hours from the issuance on May 23, 2017 by
President Duterte of Proclamation No. 216, declaring a state of martial law
and suspending the privilege of the writ of habeas corpus in Mindanao,

copies of President Duterte's Report relative to Proclamation No. 216 was
transmitted to and received by the Senate and the House of Representatives
on May 25, 2017.
The Court will not touch upon the third and fourth provisions as these
concern factual circumstances which are not availing in the instant petitions.
The petitions at bar involve the initial proclamation of martial law and
suspension of the privilege of the writ of habeas corpus, and not their
extension; and the 17th Congress was still in session68 when President
Duterte issued Proclamation No. 216 on May 23, 2017.
It is the second provision that is under judicial scrutiny herein: "The
Congress, voting jointly, by a vote of at least a majority of all its Members
in regular or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President."
A cardinal rule in statutory construction is that when the law is clear and
free from any doubt or ambiguity, there is no room for construction or
interpretation. There is only room for application. According to the
plain-meaning rule or verba legis, when the statute is clear, plain, and free
from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is expressed in the maxims index animi
sermo or "speech is the index of intention[,]" and verba legis non est
recedendum or "from the words of a statute there should be no departure."69
In Funa v. Chairman Villar,70 the Court also applied the verba legis rule in
constitutional construction, thus:
The rule is that if a statute or constitutional provision
is clear, plain and free from ambiguity, it must he
given its literal meaning and applied without
attempted interpretation. This is known as the plain
meaning rule enunciated by the maxim verba legis
non est recedendum, or from the words of a statute
there should be no departure.
The primary source whence to ascertain constitutional
intent or purpose is the language of the provision itself.
If possible, the words in the Constitution must be
given their ordinary meaning, save where technical
terms are employed. J.M. Tuason & Co., Inc. v. Land
Tenure Administration illustrates the verbal legis rule
in this wise:
We look to the language of the
document itself in our search for
its meaning. We do not of course
stop there, but that is where we
begin. It is to he assumed that the
words in which constitutional
provisions arc couched express
the objective sought to be
attained. They are to be given
their ordinary meaning except
where technical terms are
employed in which case the
significance thus attached to
them prevails. As the
Constitution is not primarily a
lawyer's document, it being
essential for the rule of law to
obtain that it should ever be
present in the people's
consciousness, its language as
99
much as possible should be
understood in the sense they
have in common use. What it
says according to the text of the
provision to be construed
compels acceptance and negates
the power of the courts to alter it.
based on the postulate that the
framers and the people mean
what they say. Thus there are
cases where the need for
construction is reduced to a
minimum. (Emphases supplied.)
The provision in question is clear, plain, and unambiguous. In its literal and
ordinary meaning, the provision grants the Congress the power to revoke
the President's proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus and prescribes how the Congress
may exercise such power, i.e., by a vote of at least a majority of all its
Members, voting jointly, in a regular or special session. The use of the
word "may" in the provision - such that "[t]he Congress x x x may revoke
such proclamation or suspension x x x" - is to be construed as permissive
and operating to confer discretion on the Congress on whether or not to
revoke,71 but in order to revoke, the same provision sets the requirement
that at least a majority of the Members of the Congress, voting jointly,
favor revocation.
It is worthy to stress that the provision does not actually refer to a "joint
session." While it may be conceded, subject to the discussions below, that
the phrase "voting jointly" shall already be understood to mean that the
joint voting will be done "in joint session," notwithstanding the absence of
clear language in the Constitution,72 still, the requirement that "[t]he
Congress, voting jointly, by a vote of at least a majority of all its Members
in regular or special session, x x x" explicitly applies only to the situation
when the Congress revokes the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas corpus. Simply put,
the provision only requires Congress to vote jointly on the revocation of the
President's proclamation and/or suspension.
Hence, the plain language of the subject constitutional provision does not
support the petitioners' argument that it is obligatory for the Congress to
convene in joint session following the President's proclamation of martial
law and/or suspension of the privilege of the writ of habeas corpus, under
all circumstances.
The deliberations of the 1986 ConCom reveal the framers' specific
intentions to (a) remove the requirement of prior concurrence of the
Congress for the effectivity of the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas corpus; and (b)
grant to the Congress the discretionary power to revoke the President's
proclamation and/or suspension by a vote of at least a majority of its
Members, voting jointly.
The Court recognized in Civil Liberties Union v. The Executive
Secretary73 that:
A foolproof yardstick in constitutional construction is
the intention underlying the provision under
consideration. Thus, it has been held that the Court in
construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and
the evils, if any, sought to be prevented or remedied.
A. doubtful provision will be examined in the light of
the history of the times, and the condition and

circumstances under which the Constitution was
framed. The object is to ascertain the reason which
induced· the framers of the Constitution to enact the
particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole
as to make the words consonant to that reason and
calculated to effect that purpose.
However, in the same Decision, the Court issued the following caveat:
While it is permissible in this jurisdiction to consult
the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose
of the resulting Constitution, resort thereto may be
had only when other guides fail as said proceedings
are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the
constitutional convention "are of value as showing the
views of the individual members, and as indicating the
reasons for their votes, but they give US no light as to
the views. of the large majority who did not talk,
much less of the mass of our fellow citizens whose
votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the
constitution from what appears upon its face.'' The
proper interpretation therefore depends more on how
it was understood by the people adopting it than in the
framer's understanding thereof.74 (Emphasis supplied.)
As the Court established in its preceding discussion, the clear meaning of
the relevant provision in Article VU, Section 18 of the 1987 Constitution is
that the Congress is only required to vote jointly on the revocation of the
President's proclamation of martial law and/or suspension of the privilege
of the writ of habeas co1pus. Based on the Civil Liberties Union case, there
is already no need to look beyond the plain language of the provision and
decipher the intent of the framers of the 1987 Constitution. Nonetheless,
the deliberations on Article VII, Section 18 of the 1986 ConCom does not
reveal a manifest intent of the framers to make it mandatory for the
Congress to convene in joint session following the President's proclamation
and/or suspension, so it could deliberate as a single body, regardless of
whether its Members will concur in or revoke the President's proclamation
and/or suspension.
What is evident in the deliberations of the 1986 ConCom were the framers'
intentions to (a) remove the requirement of prior concurrence by the
Congress for the effectivity of the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas corpus; and (b)
grant to the Congress the discretionary power to revoke the President's
proclamation and/or suspension by a vote of at least a majority of its
Members, voting jointly.
As the Commander-in-Chief clause was initially drafted, the President's
suspension of the privilege of the writ of habeas corpus required the prior
concurrence of at least a majority of all the members of the Congress to be
effective. The first line read, "The President shall be the
commander-in-chief of all the armed forces of the Philippines and,
whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion[;]" and the next
line, "In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, and, with the concurrence of at
least a majority of all the members of the Congress, suspend the privilege
of the writ of habeas corpus."75
100
The Commissioners, however, extensively debated on whether or not there
should be prior concurrence by the Congress, and the exchanges below
present the considerations for both sides:
MR. NATIVIDAD. First and foremost, we agree with
the Commissioner's thesis that in the first imposition
of martial law there is no need for concurrence of the
majority of the Members of Congress because the
provision says "in case of actual invasion and
rebellion." If there is actual invasion and rebellion, as
Commissioner Crispino de Castro said, there is need
for immediate response because there is an attack.
Second, the fact of securing a concurrence may be
impractical because the roads might be blocked or
barricaded. They say that in case of rebellion, one
cannot even take his car and go to the Congress,
which is possible because the roads are blocked or
barricaded. And maybe if the revolutionaries are smart
they would have an individual team for each and
every Member of the Congress so he would not be
able to respond to a call for a session. So the
requirement of an initial concurrence of the majority
of all the Members of the Congress in case of an
invasion or rebellion might be impractical as I can see
it.
Second, Section l5states that the Congress may revoke
the declaration or lift the suspension.
And third, the matter of declaring martial law is
already a justiciable question and no longer a political
one in that it is subject to judicial review at any point
in time. So on that basis, I agree that there is no need
for concurrence as aprerequisite to declare martial law
or to suspend the privilege of the writ of habeas
corpus. x x x
xxxx
MR. SUAREZ. x x x
The Commissioner is suggesting that in connection
with Section 15, we delete the phrase "and, with the
concurrence of at least a majority of all the Members
of the Congress..."
MR. PADILLA. That is correct especially for the
initial suspension of the privilege of the writ
of habeas corpus or also the declaration of martial
law.
MR. SUAREZ. So in both instances, the
Commissioner is suggesting that .this would be an
exclusive prerogative of the President?
MR. PADILLA. At least initially, for a period of 60
days. But even that period of 60 days may be
shortened by the Congress or the Senate because the
next sentence says that the Congress or the Senate
may even revoke the proclamation.
xxxx

MR. MONSOD. x x x
We are back to Section 15, page 7, lines 1 and 2. I just
want to reiterate my previous proposal to amend by
deletion the phrase "and, with the concurrence of at
least a majority of all the members of Congress."
xxxx
MR. SUAREZ. x x x
The Commissioner is proposing a very substantial
amendment because this means that he is vesting
exclusively unto the President the right to determine
the factors which may lead to the declaration of
martial law and the suspension of the writ of habeas
corpus. I suppose he has strong and compelling
reasons in seeking to delete this particular phrase.
May we be informed of his good and substantial
reasons?
MR. MONSOD. This situation arises in cases of
invasion or rebellion. And in previous interpellatioi1s
regarding this phrase, even during the discussions on
the Bill of Rights, as I understand it, the interpretation
is a situation of actual invasion or rebellion. In these
situations, the President has to act quickly. Secondly,
this declaration has a time fuse. It is only good for a
maximum of 60 days. At the end of 60 days, it
automatically terminates. Thirdly, the right of the
judiciary to inquire into the sufficiency of the factual
basis of the proclamation always exists, even during
those first 60 days.
MR. SUAREZ. Given cur traumatic experience during
the past administration, if we give exclusive right to
the President to determine these factors, especially the
existence of an invasion or rebellion and the second
factor of determining whether the public safety
requires it or not, may I call the attention of the
Gentleman to what happened to us during the past ac
ministration. Proclamation No. 1081 was issued by
Ferdinand E. Marcos in his capacity as President of
the Philippines by virtue of the powers vested upon
him purportedly under Article VII, Section 10(2) of
the Constitution, wherein he made this predicate under
the "Whereas" provision.
Whereas, the rebellion and
armed action undertaken by
these lawless elements of the
Communists and other armed
aggrupations organized to
overthrow the Republic of the
Philippines by armed violence
and force, have assumed the
magnitude of an actual state of
war against our people and the
Republic of the Philippines.
And may I also call the attention of the Gentleman to
General Order No. 3, also promulgated by Ferdinand
E. Marcos, in his capacity as Commander-in-Chief of
101
all the Armed Forces of the Philippines and pursuant
to Proclamation No. 1081 dated September 21, 1972
wherein he said, among other things:
Whereas, martial law having
been declared because of wanton
destruction of lives and
properties, widespread
lawlessness and anarchy and
chaos and disorder now
prevailing throughout the
country, which condition has
been brought about by groups of
men who are actively engaged in
a criminal conspiracy to seize
political and state power in the
Philippines in order to take over
the government by force and
violence, the extent of which has
now assumed the proportion of
an actual war against our people
and the legitimate government...
And he gave all reasons in order to suspend the
privilege of the writ of habeas corpus and declare
martial law in our country without justifiable reason.
Would the Gentleman still insist on the deletion of the
phrase "and, with the concurrence of at least a
majority of all the members of the Congress"?
MR. MONSOD. Yes, Madam President, in the case of
Mr. Marcos he is undoubtedly an aberration in our
history and national consciousness. But given the
possibility that there would be another Marcos, our
Constitution now has sufficient safeguards. As I said,
it is not really true, as the Gentleman has mentioned,
that there is an exclusive right to determine the factual
bases because the paragraph beginning on line 9
precisely tells us that the Supreme Court may review,
in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the
writ or the extension thereof and must promulgate its
decision on the same within 30 days from its filing.
I believe that there are enough safeguards. The
Constitution is supposed to balance the interests of the
country. And here we are trying to balance the public
interest in case of invasion or rebellion as against the
rights of citizens. And I am saying that there are
enough safeguards, unlike in 1972 when Mr. Marcos
was able to do all those things mentioned.
MR. SUAREZ. Will that prevent a future President
from doing what Mr. Marcos had done?
MR. MONSOD. There is nothing absolute in this
world, and there may be another Marcos. What we are
looking for are safeguards that are reasonable and, I
believe, adequate at this point. On the other hand, in
case of invasion or rebellion, even during the first 60
days when the intention here is to protect the country
in that situation, it would be unreasonable to ask that
there should be a concurrence on the part of the

Congress, which situation is automatically terminated
at the end of such 60 days.
xxxx
MR. SUAREZ. Would the Gentleman not feel more
comfortable if we provide for a legislative check on
this awesome power of the Chief Executive acting as
Commander-in-Chief?
MR. MONSOD. I would be less comfortable if we
have a presidency that cannot act under those
conditions.
MR. SUAREZ. But he can act with the concurrence of
the proper or appropriate authority.
MR. MONSOD. Yes. But when those situations arise,
it is very unlikely that the concurrence of Congress
would be available; and, secondly, the President will
be able to act quickly in order to deal with the
circumstances.
MR. SUAREZ. So, we would be subordinating actual
circumstances to expediency.
MR. MONSOD. I do not believe it is expediency
when one is trying to protect the country in the event
of an invasion or a rebellion.
MR. SUAREZ. No. But in both instances, we would
be seeking to protect not only the country but the
rights of simple citizens. We have to balance these
interests without sacrificing the security of the State.
MR. MONSOD. I agree with the Gentleman that is
why in the Article on the Bill of Rights, which was
approved on Third Reading, the safeguards and the
protection of the citizens have been strengthened. And
on line 21 of this paragraph, I endorsed the proposed
amendment of Commissioner Padilla. We are saying
that those who are arrested should be judicially
charged within five days; otherwise, they shall be
released. So, there are enough safeguards.
MR. SUAREZ. These are safeguards after the
declaration of martial law and after the suspension of
the writ of habeas corpus.
MR. MONSOD. That is true.76 (Emphases supplied.)
Ultimately, twenty-eight (28) Commissioners voted to remove the
requirement for prior concurrence by the Congress for the effectivity of the
President's proclamation of martial law and/or suspension of the privilege
of the writ of habeas corpus, against only twelve (12) Commissioners who
voted to retain it.
As the result of the foregoing, the 1987 Constitution does not provide at all
for the manner of determination and expression of concurrence (whether
prior or subsequent) by the Congress in the President's proclamation of
martial law and/or suspension of the privilege of the writ of habeas
corpus. In the instant cases, both Houses of the Congress separately passed
102
resolutions, in accordance with their respective rules of procedure,
expressing their support for President Duterte's Proclamation No. 216.
In contrast, being one of the constitutional safeguards against possible
abuse by the President of his power to proclaim martial law and/or suspend
the privilege of the writ of habeas corpus, the 1987 Constitution explicitly
provides for how the Congress may exercise its discretionary power to
revoke the President's proclamation and/or suspension, that is, "voting
jointly, by a vote of at least a majority of all its Members in regular or
special session."
The ConCom deliberations on this particular provision substantially
revolved around whether the two Houses will have to vote jointly or
separately to revoke the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus; but as the Court
reiterates, it is undisputedly for the express purpose of revoking the
President's proclamation and/or suspension.
Based on the ConCom deliberations, pertinent portions of which are
reproduced hereunder, the underlying reason for the requirement that the
two Houses of the Congress will vote jointly is to avoid the possibility of a
deadlock and to facilitate the process of revocation of the President's
proclamation of martial law and/or suspension of the privilege of the writ
of habeas corpus:
MR. MONSOD. Madam President, I want to ask the
Committee a clarifying question on line 4 of page 7 as
to whether the meaning here is that the majority of all
the Members of each House vote separately. Is that
the intent of this phrase?
xxxx
FR. BERNAS. We would like a little discussion on
that because yesterday we already removed the
necessity for concurrence of Congress for the initial
imposition of martial law. If we require the Senate and
the House of Representatives to vote separately for
purposes of revoking the imposition of martial law,
that will make it very difficult for Congress to revoke
the imposition of martial law and the suspension of
the privilege of the writ of habeas corpus. That is just
thinking aloud. To balance the fact that the President
acts unilaterally, then the Congress voting as one body
and not separately can revoke the declaration of
martial law or the suspension of the privilege of the
writ of habeas corpus.
MR. MONSOD. In other words, voting jointly.
FR. BERNAS. Jointly, yes.
xxxx
MR. RODRIGO. May I comment on the statement
made by Commissioner Bernas? I was a Member of
the Senate for 12 years. Whenever a bicameral
Congress votes, it is always separately.
For example, bills coming. from the Lower House are
voted upon by the Members of the House. Then they
go up to the Senate and voted upon separately. Even

on constitutional amendments, where Congress meets
in joint session, the two Houses vote separately.
Otherwise, the Senate will be useless; it will be sort of
absorbed by the House considering that the Members
of the Senate are completely outnumbered by the
Members of the House. So, I believe that whenever
Congress acts, it must be the two Houses voting
separately.
If the two Houses vote "jointly," it would mean
mixing the 24 Senators with 250 Congressmen. This
would result in the Senate being absorbed and
controlled by the House. This violates the purpose of
having a Senate.
FR. BERNAS. I quite realize that that is the practice
and, precisely, in proposing this, I am consciously
proposing this as an exception to this practice because
of the tremendous effect on the nation when the
privilege of the writ of habeas corpus is suspended
and then martial law is imposed. Since we have
allowed the President to impose martial law and
suspend the privilege of the writ of habeas
corpus unilaterally, we should make it a little more
easy for Congress to reverse such actions for the
sake of protecting the rights of the people.
MR. RODRIGO. Maybe the way it can be done is to
vest this function in just one of the Chambers - to the
House alone or to the Senate alone. But to say, "by
Congress," both House and Senate "voting" jointly is
practically a vote by the House.
FR. BERNAS. I would be willing to say just the vote
of the House.
MR. RODRIGO. That is less insulting to the Senate.
However, there are other safeguards. For example, if,
after 60 days the Congress does not act, the
effectiveness of the declaration of martial law or the
suspension of the privilege of the writ ceases.
Furthermore, there is recourse to the Supreme Court.
FR. BERNAS. I quite realize that there is this
recourse to the Supreme Court and there is a time
limit, but at the same time because of the
extraordinary character of this event when martial law
is imposed, I would like to make it easier for the
representatives of the people to review this very
significant action taken by the President.
MR. RODRIGO. Between the Senate being absorbed
and controlled by the House numerically and the
House voting alone, the lesser of two evils is the
latter.
xxxx
MR. GUINGONA. x x x
103
In connection with the inquiry of Commissioner
Monsod, and considering the statements made by
Commissioner Rodrigo, I would like to say, in reply
to Commissioner Bernas, that perhaps because of
necessity, we might really have to break tradition.
Perhaps it would be better to give this function of
revoking the proclamation of martial law or the
suspension of the writ or extending the same to the
House of Representatives, instead of to the Congress.
I feel that even the Senators would welcome this
because they would feel frustrated by the imbalance in
the number between the Senators and the Members of
the House of Representatives.
Anyway, Madam President, we have precedents or
similar cases. For example, under Section 24 of the
committee report on the Legislative, appropriation,
revenue or tariff bills, and bills authorizing increase of
public debt are supposed to originate exclusively in
the House of Representatives. Besides, we have
always been saying that it is the Members of the
House of Representatives who are mostly in touch
with the people since they represent the various
districts of our country.
xxxx
MR. MONSOD. I would prefer to have the vote of
both Houses because this is a very serious question
that must be fully discussed. By limiting it alone to
the House of Representatives, then we lose the benefit
of the advice and opinion of the Members of the
Senate. I would prefer that they would be in joint
session, but I would agree with Father Bernas that
they should not be voting separately as part of the
option. I think they should be voting jointly, so that, in
effect, the Senators will have only one vote. But at
least we have the benefit of their advice.
xxxx
MR. RODRIGO. I was the one who proposed that the
two Houses vote separately because if they vote
jointly, the Senators are absolutely outnumbered. It is
insulting to the intelligence of the Senators to join a
session where they know they are absolutely
outnumbered. Remember that the Senators are elected
at large by the whole country. The Senate is a separate
Chamber. The Senators have a longer term than the
Members of the House; they have a six-year term.
They are a continuing Senate. Out of 24, twelve are
elected every year. So, if they will participate at all,
the Senate must vote separately. That is the practice
everywhere where there are two chambers. But as I
said, between having a joint session of the Senate and
the House voting jointly where it is practically the
House that will decide alone, the lesser of two evils is
just to let the House decide alone instead of insulting
the Senators by making them participate in a charade.
MR. REGALADO. May the Committee seek this
clarification from Commissioner Rodrigo? This
vC1ting is supposed to revoke the proclamation of
martial Jaw. If the two Houses vote separately and a

majority is obtained in the House of Representatives
for the revocation of the proclamation of martial law
but that same majority cannot be obtained in the
Senate voting separately, what would be the situation?
MR. RODRIGO. Then the proclamation of martial
law or the suspension continues for almost two
months. After two months, it stops. Besides, there is
recourse to the Supreme Court.
MR. REGALADO. Therefore, that arrangement
would be very difficult for the legislative since they
are voting separately and, for lack of majority in one
of the Houses they are precluded from revoking that
proclamation. They will just, therefore, have to wait
until the lapse of 60 days.
MR. RODRIGO. It might be difficult, yes. But
remember, we speak of the Members of Congress who
are elected by the people. Let us not forget that the
President is also elected by the people. Are we
forgetting that the President is elected by the people?
We seem to distrust all future Presidents just because
one President destroyed our faith by his declaration of
martial law. I think we are overreacting. Let us not
judge all Presidents who would henceforth be elected
by the Filipino people on the basis of the abuses made
by that one President. Of course, we must be on guard;
but let us not overreact.
Let me make my position clear. I am against the
proposal to make the House and the Senate vote
jointly. That is an insult to the Senate.
xxxx
MR. RODRIGO. Will the Gentleman yield to a
question?
MR. MONSOD. Yes, Madam President.
MR. RODRIGO. So, in effect, if there is a joint
session composed of 250 Members of the House plus
24 Members of the Senate, the total would be 274.
The majority would be one-half plus one.
MR. MONSOD. So, 148 votes.
MR. RODRIGO. And the poor Senators would be
absolutely absorbed and outnumbered by the 250
Members of the House. Is that it?
MR. MONSOD. Yes, that is one of the implications of
the suggestion and the amendment is being made
nonetheless because there is a higher objective or
value which is to prevent a deadlock that would
enable the President to continue the full 60 days in
case one House revokes and the other House does not.
The proposal also allows the Senators to participate
fully in the discussions and whether we like it or not,
104
the Senators have very large persuasive powers
because of their prestige and their national vote.
MR. RODRIGO. So, the Senators will have the
"quality votes" but Members of the House will have
the "quantity votes." Is that it?
MR. MONSOD. The Gentleman is making an
assumption that they will vote against each other. I
believe that they will discuss, probably in joint session
and vote on it; then the consensus will be clear.
xxxx
MR. NOLLEDO. Madam President, the purpose of
the amendment is really to set forth a limitation
because we have to avoid a stalemate. For example,
the Lower House decides that the declaration of
martial law should be revoked, and that later on, the
Senate sitting separately decides that it should not be
revoked. It becomes inevitable that martial law shall
continue even if there should be no factual basis for it.
MR. OPLE. Madam President, if this amendment is
adopted, we will be held responsible for a glaring
inconsistency in the Constitution to a degree that it
distorts the bicameral system that we have agreed to
adopt. I reiterate: If there are deadlocks, it is the
responsibility of the presidential leadership, together
with the leaders of both Houses, to overcome
them.77 (Emphases supplied.)
When the matter was put to a vote, twenty-four (24) Commissioners voted
for the two Houses of the Congress "voting jointly" in the revocation of the
President's proclamation of martial law and/or suspension of the privilege
of the writ of habeas corpus, and thirteen (13) Commissioners opted for the
two Houses "voting separately."
Yet, there was another attempt to amend the provision by requiring just the
House of Representatives, not the entire Congress, to vote on the
revocation of the President's proclamation of martial law and/or suspension
of the privilege of the writ of habeas corpus:
MR. RODRIGO. Madam President, may I propose an
amendment?
xxxx
MR. RODRIGO. On Section 15, page 7, line 4, I
propose to change the word "Congress" to HOUSE
OF REPRESENTATIVES so that the sentence will
read: "The HOUSE OF REPRESENTATIVES, by a
vote of at least a majority of all its Members in regular
or special session, may revoke such proclamation or
suspension or extend the same if the invasion or
rebellion shall persist and public safety requires it."
FR. BERNAS. Madam President, the proposed
amendment is really a motion for reconsideration. We
have already decided that both Houses will vote
jointly. Therefore, the proposed amendment, in effect,

asks for a reconsideration of that vote in order to give
it to the House of Representatives.
MR. RODRIGO. Madam President, the opposite of
voting jointly is voting separately. If my amendment
were to vote separately, then, yes, it is a motion for
reconsideration. But this is another formula.
xxxx
MR. DE CASTRO. What is the rationale of the
amendment?
MR. RODRIGO. It is intended to avoid that very
extraordinary and awkward provision which would
make the 24 Senators meet jointly with 250 Members
of the House and make them vote jointly. What I
mean is, the 24 Senators, like a drop in the bucket, are
absorbed numerically by the 250 Members of the
House.
xxxx
MR. SARMIENTO. Madam President, we need the
wisdom of the Senators. What is at stake is the future
of our country - human rights and civil liberties. If we
separate the Senators, then we deprive the
Congressmen of the knowledge and experience of
these 24 men. I think we should forget the
classification of "Senators" or "Congressmen." We
should all work together to restore democracy in our
country. So we need the wisdom of 24 Senators.
MR. RODRIGO. Madam President, may I just answer.
This advice of the 24 Senators can be sought because
they are in the same building. Anyway, the provision,
with the amendment of Commissioner Monsod, does
not call for a joint session. It only says: "the Congress,
by a vote of at least a majority of all its Members in
regular or special session" - it does not say "joint
session." So, I believe that if the Members of the
House need the counsel of the Senators, they can
always call on them, they can invite
them.78 (Emphasis supplied.)
The proposed amendment was not adopted, however, as only five (5)
Commissioners voted in its favor and twenty-five (25) Commissioners
voted against it. Thus, the power to revoke the President's proclamation of
martial law and/or suspension of the privilege of the writ of habeas
corpus still lies with both Houses of the Congress, voting jointly, by a vote
of at least a majority of all its Members.
Significantly, the Commissioners only settled the manner of voting by the
Congress, i.e., "voting jointly, by a vote of at least a majority of all its
Members," in order to revoke the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas corpus, but they
did not directly take up and specify in Article VII, Section 18 of the 1987
Constitution that the voting shall be done during a joint session of both
Houses of the Congress. In fact, Commissioner Francisco A. Rodrigo
expressly observed that the provision does not call for a joint session. That
the Congress will vote on the revocation of the President's proclamation
and/or suspension in a joint session can only be inferred from the
arguments of the Commissioners who pushed for the "voting jointly"
105
amendment that the Members of the House of Representatives will benefit
from the advice, opinion, and/or wisdom of the Senators, which will be
presumably shared during a joint session of both Houses. Such inference is
far from a clear mandate for the Congress to automatically convene in
joint session, under all circumstances, when the President proclaims
martial law and/or suspends the privilege of the writ of habeas
corpus, even when Congress does not intend to revoke the President's
proclamation and/or suspension.
There was no obligation on the part of the Congress herein to convene in
joint session as the provision on revocation under Article VII, Section 18 of
the 1987 Constitution did not even come into operation in light of the
resolutions, separately adopted by the two Houses of the Congress in
accordance with their respective rules of procedure, expressing support for
President Duterte's Proclamation No. 216.
The provision in Article VII, Section 18 of the 1987 Constitution requiring
the Congress to vote jointly in a joint session is specifically for the purpose
of revocation of the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus. In the petitions at
bar, the Senate and House of Representatives already separately adopted
resolutions expressing support for President Duterte's Proclamation No.
216. Given the express support of both Houses of the Congress for
Proclamation No. 216, and their already evident lack of intent to revoke the
same, the provision in Article VII, Section 18 of the 1987 Constitution on
revocation did not even come into operation and, therefore, there is no
obligation on the part of the Congress to convene in joint session.
Practice and logic dictate that a collegial body will first hold a meeting
among its own members to get a sense of the opinions of its individual
members and, if possible and necessary, reach an official stance, before
convening with another collegial body. This is exactly what the two Houses
of the Congress did in these cases.
The two Houses of the Congress, the Senate and the House of
Representatives, immediately took separate actions on President Duterte's
proclamation of martial law and suspension of the privilege of the writ
of habeas corpus in Mindanao through Proclamation No. 216, in
accordance with their respective rules of procedure. The Consolidated
Comment (Ex Abudanti Cautela), filed by the Senate and Senate President
Pimentel, recounted in detail the steps undertaken by both Houses of the
Congress as regards Proclamation No. 216, to wit:
2. On the date of the President's declaration of martial
law and the suspension of the privilege of the writ
of habeas corpus, Congress was in session (from May
2, to June 2, 2017), in its First Regular Session of the
17th Congress, as evidenced by its Legislative
Calendar, otherwise known as Calendar of Session as
contained in Concurrent Resolution No. 3 of both the
Senate and the House of Representatives.x x x
3. During the plenary session of the Senate on the
following day, 24 May 2017, privilege speeches and
discussions had already been made about the
declaration of martial law and the suspension of the
privilege of the writ of habeas corpus. This prompted
Senator Franklin M. Drilon to move to invite the
Secretary of National Defense, the National Security
Adviser and the Chief of Staff of the Armed Forces of
the Philippines to brief the senators in closed session
on what transpired in Mindanao. Submitted to a vote
and there being no objection, the Senate approved the
motion. x x x
 106

4. On 25 May 2017, the President furnished the 9. Discussions were made on the two (2) proposed
Senate and the House of Representatives, through resolutions during the plenary deliberations of the
Senate President Aquilino "Koko" Pimentel III and Senate on 30 May 2017. The first resolution to be
Speaker Pantaleon D. Alvarez, respectively, with discussed was P.S.R. No. 388. During the
copies of his report (hereinafter, the "Report") deliberations, amendments were introduced to it and
detailing the factual and legal basis for his declaration after the amendments and the debates, P.S.R. No. 388
of martial law and the suspension of the privilege of was voted upon and it was adopted by a vote of
the writ of habeas corpus in Mindanao. seventeen (17) affirmative votes and five (5) negative
votes. The amended, substituted and approved version
5. On or about 25 May 2017, invitation letters were of P.S.R. No. 388, which was then renamed
issued and sent by the Senate Secretary, Atty. Resolution No. 49, states as follows:
Lutgardo B. Barbo to the following officials
requesting them to attend a briefing for the Senators RESOLUTION NO. 49
on 29 May 2017 at 3:00 p.m. at the Senators' Lounge
at the Senate in a closed door session to describe what RESOLUTION EXPRESSING
transpired in Mindanao which was the basis of the THE SENSE OF THE SENATE
declaration of martial law in Mindanao: (a) Secretary NOT TO REVOKE, AT THIS
Delfin N. Lorenzana, Secretary of National Defense TIME, PROCLAMATION NO.
(hereinafter, "Secretary Lorenzana"); (b) Secretary 216, SERIES OF 2017,
Hermogenes C. Esperon, Jr., National Security ENTITLED, "DECLARING A
Adviser and Director General of the National Security STATE OF MARTIAL LAW
Council (hereinafter, "Secretary Esperon"); and (c) AND SUSPENDING THE
General Eduardo M. Año, Chief of Staff of the Armed PRIVILEGE OF THE WRIT
Forces of the Philippines (hereinafter, "Gen. Año"). OF HABEAS CORPUS IN THE
The said letters stated that the Senators requested that WHOLE OF MINDANAO."
the President's Report be explained and that more
details be given about the same. Xxx
WHEREAS, the 1987 Philippine
Constitution, Article VII, Section
6. On 29 May 2017, about 3:30 p.m., a closed door 18, provides that:
briefing was conducted by Secretary Lorenzana,
Secretary Esperon and other security officials for the
Senators to brief them about the circumstances "... in case
surrounding the declaration of martial law and to of invasion
inform them about details about the President's Report. or rebellion,
The briefing lasted for about four (4) hours. After the when the
briefing, the Senators had a caucus to determine what public
could be publicly revealed. safety
requires it,
he
7. On the same day, 29 May 2017, the House of (President)
Representatives resolved to constitute itself as a may, for a
Committee of the Whole on 31 May 2017 to consider period not
the President's Report. exceeding
sixty days,
8. On 30 May 2017, two (2) resolutions were suspend the
introduced in the Senate about the proclamation of privilege of
martial law. The first one was P.S. Resolution No. 388 the writ of
(hereinafter, "P.S.R. No. 388") introduced by Senators habeas
Sotto, Pimentel, Recto, Angara, Binay, Ejercito, corpus or
Gatchalian, Gordon, Honasan, Lacson, Legarda, place the
Pacquiao, Villanueva, Villar and Zubiri which was Philippines
entitled, "Expressing the Sense of the Senate, or any part
Supporting the Proclamation No. 216 dated May 23, thereof
2017, entitled "Declaring a State of Martial Law and under
Suspending the Privilege of the Writ of Habeas martial
Corpus in the Whole of Mindanao" and Finding no law...";
Cause to revoke the Same." The second one was P.S.
Resolution No. 390 (hereinafter, "P.S.R. No. 390") WHEREAS, President Rodrigo
introduced by Senators Pangilinan, Drilon, Hontiveros, Roa Duterte issued Proclamation
Trillanes, Aquino and De Lima which was entitled, No. 216, series of 2017, entitled
"Resolution to Convene Congress in Joint Session and "Declaring a State of Martial
Deliberate on Proclamation No. 216 dated 23 May Law and Suspending the
2017 entitled, "Declaring a State of Martial Law and Privilege of the Writ of Habeas
Suspending the Privilege of the Writ of Habeas Corpus in the Whole of
Corpus in the Whole of Mindanao." x x x

Mindanao," on May 23, 2017
(the "Proclamation");
WHEREAS, pursuant to his duty
under the Constitution, on May
25, 2017, and within forth-eight
hours after the issua.11ce of the
Proclamation, President Duterte
submitted to the Senate his report
on the factual and legal basis of
the Proclamation;
WHEREAS, on May 29, 2017,
the Senators were briefed by the
Department of National Defense
(DND), the Armed Forces of the
Philippines (AFP), and by the
National Security Council (NSC)
on the factual circumstances
surrounding the Proclamation as
well as the updates on the
situation in Mindanao;
WHEREAS, on the basis of the
information received by the
Senators, the Senate is convinced
that President Duterte declared
martial law and suspended the
privilege of the writ of habeas
corpus in the whole of Mindanao
because actual rebellion exists
and that the public safety
requires it;
WHEREAS, the Senate, at this
time, agrees that there is no
compelling reason to revoke
Proclamation No. 216, series of
2017;
WHEREAS, the Proclamation
does not suspend the operation of
the Constitution, which among
others, guarantees respect for
human rights and guards against
any abuse or violation thereof:
Now, therefore, be it
Resolved, as it is hereby
resolved, To express the sense of
the Senate, that there is no
compelling reason to revoke
Proclamation No. 216, series of
2017 at this time.
Adopted. x x x"
xxxx
10. Immediately thereafter, P.S.R. No. 390 was also
deliberated upon. After a prolonged discussion, a vote
was taken on it and nine (9) senators were in favor
and twelve (12) were against. As such, P.S.R. No. 390
107
calling for a joint session of Congress was not adopted.
xxx
11. In the meantime, on 31 May 2017, the House of
Representatives acting as a Committee of the Whole
was briefed for about six (6) hours by officials of the
government led by Executive Secretary Salvador C.
Medialdea (hereinafter, "Executive Secretary
Medialdea"), Secretary Lorenzana and other security
officials on the factual circumstances surrounding the
President's declaration of martial law and on the
statements contained in the President's Report. During
the evening of the same day, a majority of the House
of Representatives passed Resolution No. 1050
entitled, "'Resolution Expressing the Full Support of
the House of Representatives to President Rodrigo
Roa Duterte As It Finds No Reason to Revoke
Proclamation No. 216 Entitled, 'Declaring A State of
Martial Law and Suspending the Privilege of the Writ
of Habeas Corpus in the Whole of Mindanao."' In the
same deliberations, it was likewise proposed that the
House of Representatives call for a joint session of
Congress to deliberate and vote on the President's
declaration of martial law and the suspension of the
privilege of the writ of habeas corpus. However, after
debates, the proposal was not carried. x x x.79
It cannot be disputed then that the Senate and House of Representatives
placed President Duterte's Proclamation No. 216 under serious review and
consideration, pursuant to their power to revoke such a proclamation vested
by the Constitution on the Congress. Each House timely took action by
accepting and assessing the President's Report, inviting over and
interpellating executive officials, and deliberating amongst their fellow
Senators or Representatives, before finally voting in favor of expressing
support for President Duterte's Proclamation No. 216 and against calling
for a joint session with the other House. The prompt actions separately
taken by the two Houses of the Congress on President Duterte's
Proclamation No. 216 belied all the purported difficulties and delays such
procedures would cause as raised in the Concurring and Dissenting
Opinion of Associate Justice Marvic M.V.F. Leonen (Justice Leonen). As
earlier pointed out, there is no constitutional provision governing
concurrence by the Congress in the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas corpus, and absent
a specific mandate for the Congress to hold a joint session in the event of
concurrence, then whether or not to hold a joint session under such
circumstances is completely within the discretion of the Congress.
The Senate and Senate President Pimentel explained in their Consolidated
Comment (Ex Abudanti Cautela), that, by practice, the two Houses of the
Congress must adopt a concurrent resolution to hold a joint session, and
only thereafter can the Houses adopt the rules to be observed for that
particular joint session:
It must be stated that the Senate and the House of
Representatives have their own respective
Rules, i.e., the Rules of the Senate and the Rules of
the House of Representatives. There is no general
body of Rules applicable to a joint session of
Congress. Based on parliamentary practice and
procedure, the Senate and House of Representatives
only adopt Rules for a joint session on an ad hoc basis
but only after both Houses have already agreed to
convene in a joint session through a Concurrent
Resolution. The Rules for a Joint Session for a
particular purpose become functus officio after the

purpose of the joint session has been achieved.
Examples of these Rules for a Joint Session are (1) the
Rules of the Joint Public Session of Congress on
Canvassing the Votes Cast for Presidential and
Vice-Presidential Candidates in the May 9, 2016
Election adopted on 24 May 2016; and (2) the Rules
of the Joint Session of Congress on Proclamation No.
1959 (Proclaiming a State of Martial Law and
Suspending the Privilege of the Writ of Habeas
Corpus in the Province of Maguindanao, Except for
Certain Areas) adopted on 09 December 2009. The
only time that the Senate and the House of
Representatives do not adopt Rules for a joint session
is when they convene on the fourth Monday of July
for its regular session to receive or listen to the State
of the Nation Address of the President and even then,
they adopt a Concurrent Resolution to do so.
The usual procedure for having a joint session is for
both Houses to first adopt a Concurrent Resolution to
hold a joint session. This is achieved by either of two
(2) ways: (1) both the Senate and the House of
Representatives simultaneously adopting the
Concurrent Resolution - an example would be when
the two (2) Houses inform the President that they are
ready to receive his State of the Nation Address or (2)
For one (1) House to pass its own resolution and to
send it to the other House for the latter's concurrence.
Once the joint session of both Houses is actually
convened, it is only then that the Senate and the
House of Representatives jointly adopt the Rules for
the joint session. x x x80 (Emphases supplied.)
With neither Senate nor the House of Representatives adopting a
concurrent resolution, no joint session by the two Houses of the Congress
can be had in the present cases.
The Court is bound to respect the rules of the Congress, a co-equal and
independent branch of government. Article VI, Section 16(3) of the 1987
Constitution states that "[e]ach House shall determine the rules of its
proceedings." The provision has been traditionally construed as a grant of
full discretionary authority to the Houses of Congress in the formulation,
adoption, and promulgation of its rules; and as such, the exercise of this
power is generally exempt from judicial supervision and
interference.81 Moreover, unless there is a clear showing by strong and
convincing reasons that they conflict with the Constitution, "all legislative
acts are clothed with an armor of constitutionality particularly resilient
where such acts follow a long-settled and well-established practice by the
Legislature."82Nothing in this Decision should be presumed to give
precedence to the rules of the Houses of the Congress over the provisions
of the Constitution. This Court simply holds that since the Constitution
does not regulate the manner by which the Congress may express its
concurrence to a Presidential proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus, the Houses of the
Congress have the discretion to adopt rules of procedure as they may deem
appropriate for that purpose.
The Court highlights the particular circumstance herein that both Houses
of Congress already separately expressed support for President
Duterte's Proclamation No. 216, so revocation was not even a
possibility and the provision on revocation under Article VII, Section 18 of
the 1987 Constitution requiring the Congress to vote jointly in a joint
session never came into operation. It will be a completely different
scenario if either of the Senate or the House of Representatives, or if
both Houses of the Congress, resolve/s to revoke the President's
108
proclamation of martial law and/or suspension of the privilege of the
writ of habeas corpus, in which case, Article VII, Section 18 of the 1987
Constitution shall apply and the Congress must convene in joint session to
vote jointly on the revocation of the proclamation and/or suspension. Given
the foregoing parameters in applying Article VII, Section 18 of the 1987
Constitution, Justice Leonen's concern, expressed in his Concurring and
Dissenting Opinion, that a deadlock may result in the future, is completely
groundless.
The legislative precedent referred to by petitioners actually supports the
position of the Court in the instant cases. On December 4, 2009, then
President Macapagal-Arroyo issued Proclamation No. 1959,
entitled "Proclaiming a State of Martial law and Suspending the Privilege
of the Writ of Habeas Corpus in the Province of Maguindanao, except for
Certain Areas." The Senate, on December 14, 2009, adopted Resolution No.
217, entitled "Resolution Expressing the Sense of the Senate that the
Proclamation of Martial Law in the Province of Maguindanao is Contrary
to the Provisions of the 1987 Constitution." Consequently, the Senate and
the House of Representatives adopted Concurrent Resolutions, i.e., Senate
Concurrent Resolution No. 14 and House Concurrent Resolution No. 33,
calling both Houses of the Congress to convene in joint session on
December 9, 2009 at 4:00 p.m. at the Session Hall of the House of
Representatives to deliberate on Proclamation No. 1959. It appears then
that the two Houses of the Congress in 2009 also initially took separate
actions on President Macapagal-Arroyo's Proclamation No. 1959, with the
Senate eventually adopting Resolution No. 217, expressing outright its
sense that the proclamation of ma11ial law was unconstitutional and
necessarily implying that such proclamation should be revoked. With one
of the Houses favoring revocation, and in observation of the established
practice of the Congress, the two Houses adopted concurrent resolutions to
convene in joint session to vote on the revocation of Proclamation No.
1959.
For the same reason, the Fortun case cannot be deemed a judicial precedent
for the present cases. The factual background of the Fortun case is not on
all fours with these cases. Once more, the Court points out that in
the Fortun case, the Senate expressed through Resolution No. 217 its
objection to President Macapagal-Arroyo's Proclamation No. 1959 for
being unconstitutional, and both the Senate and the House of
Representatives adopted concurrent resolutions to convene in joint session
for the purpose of revoking said proclamation; while in the cases at bar, the
Senate and the House of Representatives adopted Senate Resolution No. 49
and House Resolution No. 1050, respectively, which expressed support for
President Duterte's Proclamation No. 216, and both Houses of the Congress
voted against calling for a joint session. In addition, the fundamental issue
in the Fortun case was whether there was factual basis for Proclamation No.
1959 and not whether it was mandatory for the Congress to convene in
joint session; and even before the Congress could vote on the revocation of
Proclamation No. 1959 and the Court could resolve the Fortun case,
President Macapagal-Arroyo already issued Proclamation No. 1963 on
December 12, 2009, entitled "Proclaiming the Termination of the State of
Martial Law and the Restoration of the Privilege of the Writ of Habeas
Corpus in the Province of Maguindanao." Furthermore, the word
"automatic" in the Fortun case referred to the duty or power of the
Congress to review the proclamation of martial law and/or suspension of
the privilege of the writ of habeas corpus, rather than the joint session of
Congress.83
Petitioners invoke the following provision also in Article VII, Section 18 of
the 1987 Constitution: "The Congress, if not in session, shall, within
twenty-four hours following such proclamation or suspension convene in
accordance with its rules without call." Petitioners reason that if the
Congress is not in session, it is constitutionally mandated to convene within
twenty-four (24) hours from the President's proclamation of martial law

and/or suspension of the privilege of the writ of habeas corpus, then it is
with all the more reason required to convene immediately if in session.
The Court is not persuaded.
First, the provision specially addresses the situation when the President
proclaims martial law and/or suspends the privilege of the writ of habeas
corpus while the Congress is in recess. To ensure that the Congress will be
able to act swiftly on the proclamation and/or suspension, the 1987
Constitution provides that it should convene within twenty-four (24) hours
without need for call. It is a whole different situation when the Congress is
still in session as it can readily take up the proclamation and/or suspension
in the course of its regular sessions, as what happened in these
cases. Second, the provision only requires that the Congress convene
without call, but it does not explicitly state that the Congress shall already
convene in joint session. In fact, the provision actually states that the
Congress "convene in accordance with its rules," which can only mean the
respective rules of each House as there are no standing rules for joint
sessions. And third, it cannot be said herein that the Congress failed to
convene immediately to act on Proclamation No. 216. Both Houses of the
Congress promptly took action on Proclamation No. 216, with the Senate
already issuing invitations to executive officials even prior to receiving
President Duterte's Report, except that the two Houses of the Congress
acted separately. By initially undertaking separate actions on President
Duterte's Proclamation No. 216 and making their respective determination
of whether to support or revoke said Proclamation, the Senate and the
House of Representatives were only acting in accordance with their own
rules of procedure and were not in any way remiss in their constitutional
duty to guard against a baseless or unjustified proclamation of martial law
and/or suspension of the privilege of the writ of habeas corpus by the
President.
There is likewise no basis for petitioners' assertion that without a joint
session, the public cannot hold the Senators and Representatives
accountable for their respective positions on President Duterte's
Proclamation No. 216. Senate records completely chronicled the
deliberations and the voting by the Senators on Senate Resolution No. 49
(formerly P.S. Resolution No. 388) and P.S. Resolution No. 390. While it is
true that the House of Representatives voted on House Resolution No.
1050 viva voce, this is only in accordance with its rules. Per the Rules of
the House of Representatives:
RULE XV
Voting
Sec. 115. Manner of Voting. -The Speaker shall rise
and state the motion or question that is being put to a
vote in clear, precise and simple language. The
Speaker shall say "as many as are in favor, (as the
question may be) say 'aye'". After the affirmative vote
is counted, the Speaker shall say "as many as are
opposed, (as the question may be) say 'nay"'.
If the Speaker doubts the result of the voting or a
motion to divide the House is Carried, the House shall
divide. The Speaker shall ask those in favor to rise, to
be followed by those against. If still in doubt of the
outcome or a count by tellers is demanded, the
Speaker shall name one (1) Member from each side of
the question to count the Members in the affirmative
and those in the negative. After the count is reported,
the Speaker shall announce the result.
109
An abstention shall not be counted as a vote. Unless
otherwise provided by the Constitution or by these
rules, a majority of those voting, there being a quorum,
shall decide the issue.
Sec. 116. Nominal Voting. - Upon motion of a
Member, duly approved by one-fifth (1/5) of the
Members present, there being a quorum, nominal
voting on any question may be called. In case of
nominal voting, the Secretary General shall call, in
alphabetical order, the nan1es of the Members who
shall state their vote as their names are called.
Sec. 117. Second Call on Nominal Voting. - A second
call on nominal voting shall be made to allow
Members who did not vote during the first call to
vote.1avvphi1 Members who fail to vote during the
second call shall no longer be allowed to vote.
Since no one moved for nominal voting on House Resolution No. 1050,
then the votes of the individual Representatives cannot be determined. It
does not render though the proceedings unconstitutional or invalid.
The Congress did not violate the right of the
public to information when it did not
convene in joint session.
The Court is not swayed by petitioners' argument that by not convening in
joint session, the Congress violated the public's right to information
because as records show, the Congress still conducted deliberations on
President Duterte's Proclamation No. 216, albeit separately; and the
public's right to information on matters of national security is not absolute.
When such matters are being taken up in the Congress, whether in separate
or joint sessions, the Congress has discretion in the manner the proceedings
will be conducted.
Petitioners contend that the Constitution requires a public deliberation
process on the proclamation of martial law: one that is conducted via a joint
session and by a single body. They insist that the Congress must be
transparent, such that there is an "open and robust debate," where the
evaluation of the proclamation's factual bases and subsequent
implementation shall be openly discussed and where each member's
position on the issue is heard and made known to the public.
The petitioners' insistence on the conduct of a "joint session" contemplates
a mandatory joint Congressional session where public viewing is allowed.
However, based on their internal rules, each House has the discretion over
the manner by which Congressional proceedings are to be conducted.
Verily, sessions are generally open to the public, 84 but each House may
decide to hold an executive session due to the confidential nature of the
subject matter to be discussed and deliberated upon.
Rule XI of the Rules of the House of Representatives
provides:
Section 82. Sessions Open to the Public. - Sessions
shall be open to the public. However, when the
security of the State or the dignity of the House or any
of its Members are affected by any motion or petition
being considered, the House may hold executive
sessions.

Guests and visitors in the galleries are prohibited from
using their cameras and video recorders. Cellular
phones and other similar electronic devices shall be
put in silent mode.
Section 83. Executive Sessions. - When the House
decides to hold an executive session, the Speaker shall
direct the galleries and hallways to be cleared and the
doors closed. Only the Secretary General, the
Sergeant-at- Arms and other persons specifically
authorized by the House shall be admitted to the
executive session. They shall preserve the
confidentiality of everything read or discussed in the
session. (Emphasis supplied.)
Rule XLVII of the Rules of the Senate similarly sets forth the following:
SEC. 126. The executive sessions of the Senate shall
be held always behind closed doors. In such sessions,
only the Secretary, the Sergeant-at-Arms, and/or such
other persons as may be authorized by the Senate may
be admitted to the session hall.
SEC. 127. Executive sessions shall be held whenever
a Senator so requests it and his petition has been duly
seconded, or when the security of the State or public
interest so requires. Thereupon, the President shall
order that the public be excluded from the gallery and
the doors of the session hall be closed.
The Senator who presented the motion shall then
explain the reasons which he had for submitting the
same.
The minutes of the executive sessions shall be
recorded m a separate book. (Emphasis supplied)
From afore-quoted rules, it is clear that matters affecting the security of the
state are considered confidential and must be discussed and deliberated
upon in an executive session, excluding the public therefrom.
That these matters are considered confidential is in accordance with settled
jurisprudence that, in the exercise of their right to information, the
government may withhold certain types of information from the public
such as state secrets regarding military, diplomatic, and other national
security matters.85 The Court has also ruled that the Congress' deliberative
process, including information discussed and deliberated upon in an
executive session,86may be kept out of the public's reach.
The Congress not only recognizes the sensitivity of these matters but also
endeavors to preserve their confidentiality. In fact, Rule XL VII, Section
12887 of the Rules of the Senate expressly establishes a secrecy ban
prohibiting all its members, including Senate officials and employees, from
divulging any of the confidential matters taken up by the Senate. A Senator
found to have violated this ban faces the possibility of expulsion from his
office.88This is consistent with the Ethical Standards Act89 that prohibits
public officials and employees from using or divulging "confidential or
classified information officially known to them by reason of their office
and not made available to the public."90
Certainly, the factual basis of the declaration of martial law involves
intelligence information, military tactics, and other sensitive matters that
have an undeniable effect on national security. Thus, to demand Congress
110
to hold a public session during which the legislators shall openly discuss
these matters, all the while under public scrutiny, is to effectively compel
them to make sensitive information available to everyone, without
exception, and to breach the recognized policy of preserving these matters'
confidentiality, at the risk of being sanctioned, penalized, or expelled from
Congress altogether.
That these are the separate Rules of the two Houses of the Congress does
not take away from their persuasiveness and applicability in the event of a
joint session.1âwphi1 Since both Houses separately recognize the policy of
preserving the confidentiality of national security matters, then in all
likelihood, they will consistently observe the same in a joint session. The
nature of these matters as confidential is not affected by the composition of
the body that will deliberate upon it - whether it be the two Houses of the
Congress separately or in joint session.
Also, the petitioners' theory that a regular session must be preferred over a
mere briefing for purposes of ensuring that the executive and military
officials are placed under oath does not have merit. The Senate Rules of
Procedure Governing Inquiries In Aid of Legislation91 require that all
witnesses at executive sessions or public hearings who testify as to matters
of fact shall give such testimony under oath or affirmation. The proper
implementation of this rule is within the Senate's competence, which is
beyond the Court's reach.
Propriety of the issuance of a writ of
mandamus or certiorari
For mandamus to lie, there must be compliance with Rule 65, Section 3,
Rules of Court, to wit:
SECTION 3. Petition for mandamus. - When any
tribunal, corporation, board, officer or person
unlawfully neglects the perfom1ance of an act which
the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another
from the use and enjoyment of a right or office to
which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some
other time to be specified by the court, to do the act
required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the
respondent,
Jurisprudence has laid down the following requirements for a petition
for mandamus to prosper:
[T]hus, a petition for mandamus will prosper if it is
shown that the subject thereof is a ministerial act or
duty, and not purely discretionary on the part of the
board, officer or person, and that the petitioner has a
well-defined, clear and certain right to warrant the
grant thereof.
The difference between a ministerial and discretionary
act has long been established. A purely ministerial act
or duty is one which an officer or tribunal performs in
a given state of facts, in a prescribed manner, in
 111

obedience to the mandate of a legal authority, without TERESITA J. LEONARDO-DE CASTRO

regard to or the exercise of his own judgment upon the Associate Justice
propriety or impropriety of the act done. If the law
imposes a duty upon a public officer and gives him WE CONCUR:
the right to decide how or when the duty shall be
performed, such duty is discretionary and not
ministerial. The duty is ministerial only when the f) Presidential amnesties
discharge of the same requires neither the exercise of
g) Concur in treaties
official discretion or judgment.92 (Emphases added.)
h) Declaration of existence of war
It is essential to the issuance of a writ of mandamus that petitioner should
have a clear legal right to the thing demanded and it must be the imperative i) Delegation of emergency powers
duty of the respondent to perform the act required. Mandamus never issues j) Utilization of natural resources
in doubtful cases. While it may not be necessary that the ministerial duty be
absolutely expressed, it must however, be clear. The writ neither confers k) Amendment of Constitution
powers nor imposes duties. It is simply a command to exercise a power
already possessed and to perform a duty already imposed. 93 l) Power of Impeachment

Although there are jurisprudential examples of the Court issuing a writ

of mandamus to compel the fulfillment of legislative duty,94 we must
distinguish the present controversy with those previous cases. In this
particular instance, the Court has no authority to compel the Senate and the
House of Representatives to convene in joint session absent a clear
ministerial duty on its part to do so under the Constitution and in complete
disregard of the separate actions already undertaken by both Houses on
Proclamation No. 216, including their respective decisions to no longer
hold a joint session, considering their respective resolutions not to revoke
said Proclamation.

In the same vein, there is no cause for the Court to grant a writ
of certiorari.

As earlier discussed, under the Court's expanded jurisdiction, a petition

for certiorari is a proper remedy to question the act of any branch or
instrumentality of the government on the ground of grave abuse of
discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the government, even if the latter does not exercise
judicial, quasi-judicial or ministerial functions.95 Grave abuse of discretion
implies such capricious and whimsical exercise of judgment as to be
equivalent to lack or excess of jurisdiction; in other words, power is
exercised in an arbitrary or despotic manner by reason of passion, prejudice,
or personal hostility; and such exercise is so patent or so gross as to amount
to an evasion of a positive duty or to a virtual refusal either to perform the
duty enjoined or to act at all in contemplation of law.96 It bears to mention
that to pray in one petition for the issuance of both a writ of mandamus and
a writ of certiorari for the very same act - which, in the Tañada Petition,
the non-convening by the two Houses of the Congress in joint session - is
contradictory, as the former involves a mandatory duty which the
government branch or instrumentality must perform without discretion,
while the latter recognizes discretion on the part of the government branch
or instrumentality but which was exercised arbitrarily or despotically.
Nevertheless, if the Court is to adjudge the petition for certiorari alone, it
still finds the same to be without merit. To reiterate, the two Houses of the
Congress decided to no longer hold a joint session only after deliberations
among their Members and putting the same to vote, in accordance with
their respective rules of procedure. Premises considered, the Congress did
not gravely abuse its discretion when it did not jointly convene upon the
President's issuance of Proclamation No. 216 prior to expressing its
concurrence thereto.

WHEREFORE, the petitions are DISMISSED for lack of merit.

SO ORDERED.