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Republic of the Philippines EDUARDO R.

ERMITA, in his capacity as Executive Secretary, AVELINO

SUPREME COURT J. CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S.
Manila SENGA, in his capacity as AFP Chief of Staff, Respondents.

EN BANC x-------------------------x

G.R. No. 169777* April 20, 2006 G.R. No. 169667 April 20, 2006

DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in his vs.
capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in HON. EDUARDO R. ERMITA, in his capacity as Executive
his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his Secretary, Respondent.
capacity as Minority Leader, SENATORS RODOLFO G. BIAZON,
PDP- LABAN, Petitioner,
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-
ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead
and in behalf of the President of the Philippines,Respondents.
G.R. No. 171246 April 20, 2006
G.R. No. 169659 April 20, 2006
BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego DECISION
of President Gloria Macapagal-Arroyo, Respondent.
A transparent government is one of the hallmarks of a truly republican state.
G.R. No. 169660 April 20, 2006 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 Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco
proceedings of one man, in a much more eminent degree than the proceedings of V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col.
any greater number; and in proportion as the number is increased, these qualities Alexander F. Balutan, for them to attend as resource persons in a public hearing
will be diminished."1 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
History has been witness, however, to the fact that the power to withhold Provided Smoking Gun or has Opened a Can of Worms that Show Massive
information lends itself to abuse, hence, the necessity to guard it zealously. Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege Speech
of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The
The present consolidated petitions for certiorari and prohibition proffer that the Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of
President has abused such power by issuing Executive Order No. 464 (E.O. 464) Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and Present
last September 28, 2005. They thus pray for its declaration as null and void for Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo
being unconstitutional. 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
In resolving the controversy, this Court shall proceed with the recognition that
(5) Senate Resolution No. 295 filed by Senator Biazon – Resolution Directing
the issuance under review has come from a co-equal branch of government,
the Committee on National Defense and Security to Conduct an Inquiry, in Aid
which thus entitles it to a strong presumption of constitutionality. Once the
of Legislation, on the Wire-Tapping of the President of the Philippines.
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 Also invited to the above-said hearing scheduled on September 28 2005 was the
government that contravenes its mandates. 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
In the exercise of its legislative power, the Senate of the Philippines, through its
officers are currently attending to other urgent operational matters."
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 On September 28, 2005, Senate President Franklin M. Drilon received from
Government Owned and Controlled Corporations, the Armed Forces of the Executive Secretary Eduardo R. Ermita a letter4 dated September 27, 2005
Philippines (AFP), and the Philippine National Police (PNP). "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
On September 21 to 23, 2005, the Committee of the Senate as a whole issued
study and prepare for the various issues so that they may better enlighten the
invitations to various officials of the Executive Department for them to appear
Senate Committee on its investigation."
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 Senate President Drilon, however, wrote5 Executive Secretary Ermita that the
hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging Senators "are unable to accede to [his request]" as it "was sent belatedly" and
the Senate to investigate the alleged overpricing and other unlawful provisions of "[a]ll preparations and arrangements as well as notices to all resource persons
the contract covering the North Rail Project. were completed [the previous] week."

The Senate Committee on National Defense and Security likewise issued Senate President Drilon likewise received on September 28, 2005 a letter6 from
invitations2 dated September 22, 2005 to the following officials of the AFP: the the President of the North Luzon Railways Corporation Jose L. Cortes, Jr.
Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; requesting that the hearing on the NorthRail project be postponed or cancelled
Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of until a copy of the report of the UP Law Center on the contract agreements
Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the relative to the project had been secured.
Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission
the Principle of Separation of Powers, Adherence to the Rule on Executive on Good Government, G.R. No. 130716, 9 December 1998);
Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other Matters affecting national security and public order (Chavez v. Public Estates
Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The Authority, G.R. No. 133250, 9 July 2002).
salient provisions of the Order are as follows:
(b) Who are covered. – The following are covered by this executive order:
SECTION 1. Appearance by Heads of Departments Before Congress. – In
accordance with Article VI, Section 22 of the Constitution and to implement the Senior officials of executive departments who in the judgment of the department
Constitutional provisions on the separation of powers between co-equal branches heads are covered by the executive privilege;
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
Generals and flag officers of the Armed Forces of the Philippines and such other
either House of Congress.
officers who in the judgment of the Chief of Staff are covered by the executive
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.
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
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. – covered by the executive privilege;

(a) Nature and Scope. - The rule of confidentiality based on executive privilege Senior national security officials who in the judgment of the National Security
is fundamental to the operation of government and rooted in the separation of Adviser are covered by the executive privilege; and
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
Such other officers as may be determined by the President.
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 SECTION 3. Appearance of Other Public Officials Before Congress. – All
public to prejudice the public interest. public officials enumerated in Section 2 (b) hereof shall secure prior consent of
the President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on
Executive privilege covers all confidential or classified information between the
executive privilege and respect for the rights of public officials appearing in
President and the public officers covered by this executive order, including:
inquiries in aid of legislation. (Emphasis and underscoring supplied)
Conversations and correspondence between the President and the public official
Also on September 28, 2005, Senate President Drilon received from Executive
covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May
Secretary Ermita a copy of E.O. 464, and another letter8 informing him "that
1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
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
Military, diplomatic and other national security matters which in the interest of the President, pursuant to [E.O. 464]" and that "said officials have not secured
national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, the required consent from the President." On even date which was also the
23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a
No. 130716, 9 December 1998). letter9 to Senator Biazon, Chairperson of the Committee on National Defense
and Security, informing him "that per instruction of [President Arroyo], thru the
Information between inter-government agencies prior to the conclusion of Secretary of National Defense, no officer of the [AFP] is authorized to appear
treaties and executive agreements (Chavez v. Presidential Commission on Good before any Senate or Congressional hearings without seeking a written approval
Government, G.R. No. 130716, 9 December 1998); 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 alleges that E.O. 464 infringes on its right as a political party entitled to
National Defense and Security scheduled [on] 28 September 2005." 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
Despite the communications received from Executive Secretary Ermita and Gen. legislation and conduct oversight functions in the implementation of laws;
Senga, the investigation scheduled by the Committee on National Defense and Courage alleges that the tenure of its members in public office is predicated on,
Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among and threatened by, their submission to the requirements of E.O. 464 should they
all the AFP officials invited attending. 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
For defying President Arroyo’s order barring military personnel from testifying governance are threatened by the imposition of E.O. 464.
before legislative inquiries without her approval, Brig. Gen. Gudani and Col.
Balutan were relieved from their military posts and were made to face court In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his
martial proceedings. 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
As to the NorthRail project hearing scheduled on September 29, 2005, Executive and void for being unconstitutional.
Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the
invitations sent to the following government officials: Light Railway Transit In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging
Authority Administrator Melquiades Robles, Metro Rail Transit Authority that as a coalition of 17 legal resource non-governmental organizations engaged
Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State in developmental lawyering and work with the poor and marginalized sectors in
Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas different parts of the country, and as an organization of citizens of the
Gutierrez, Department of Transportation and Communication (DOTC) Philippines and a part of the general public, it has legal standing to institute the
Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza, petition to enforce its constitutional right to information on matters of public
Philippine National Railways General Manager Jose Serase II, Monetary Board concern, a right which was denied to the public by E.O. 464,13 prays, that said
Member Juanita Amatong, Bases Conversion Development Authority order be declared null and void for being unconstitutional and that respondent
Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.10 NorthRail Executive Secretary Ermita be ordered to cease from implementing it.
President Cortes sent personal regrets likewise citing E.O. 464.11
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and vital interest in the resolution of the issue of the validity of E.O. 464 for it stands
169667, for certiorari and prohibition, were filed before this Court challenging to suffer imminent and material injury, as it has already sustained the same with
the constitutionality of E.O. 464. 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
In G.R. No. 169659, petitioners party-list Bayan Muna, House of public interest and concern, filed its petition for certiorari and prohibition,
Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza docketed as G.R. No. 169777 and prays that E.O. 464 be declared
Maza, Joel Virador and Teodoro Casino, Courage, an organization of unconstitutional.
government employees, and Counsels for the Defense of Liberties (CODAL), a
group of lawyers dedicated to the promotion of justice, democracy and peace, all On October 14, 2005, PDP-Laban, a registered political party with members duly
claiming to have standing to file the suit because of the transcendental elected into the Philippine Senate and House of Representatives, filed a similar
importance of the issues they posed, pray, in their petition that E.O. 464 be petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that
declared null and void for being unconstitutional; that respondent Executive it is affected by the challenged E.O. 464 because it hampers its legislative
Secretary Ermita, in his capacity as Executive Secretary and alter-ego of agenda to be implemented through its members in Congress, particularly in the
President Arroyo, be prohibited from imposing, and threatening to impose conduct of inquiries in aid of legislation and transcendental issues need to be
sanctions on officials who appear before Congress due to congressional resolved to avert a constitutional crisis between the executive and legislative
summons. Additionally, petitioners claim that E.O. 464 infringes on their rights branches of the government.
and impedes them from fulfilling their respective obligations. Thus, Bayan Muna
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an
invitation to Gen. Senga for him and other military officers to attend the hearing actual case or controversy that calls for judicial review was not taken up; instead,
on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied, the parties were instructed to discuss it in their respective memoranda.
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 After the conclusion of the oral arguments, the parties were directed to submit
[them] to appear before the public hearing" and that "they will attend once [their] their respective memoranda, paying particular attention to the following
request is approved by the President." As none of those invited appeared, the propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming
hearing on February 10, 2006 was cancelled.16 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
In another investigation conducted jointly by the Senate Committee on activity of the ISAFP; and (d) the investigation on the Venable contract.22
Agriculture and Food and the Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda
Ani program of the Department of Agriculture (DA), several Cabinet officials on March 7, 2006, while those in G.R. No. 16966725 and G.R. No. 16983426 filed
were invited to the hearings scheduled on October 5 and 26, November 24 and theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not
December 12, 2005 but most of them failed to attend, DA Undersecretary file any memorandum.
Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and
Pesticide Authority Executive Director Norlito R. Gicana,17 and those from the Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for
Department of Budget and Management18 having invoked E.O. 464. extension to file memorandum27 was granted, subsequently filed a
manifestation28 dated March 14, 2006 that it would no longer file its
In the budget hearings set by the Senate on February 8 and 13, 2006, Press memorandum in the interest of having the issues resolved soonest, prompting
Secretary and Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary this Court to issue a Resolution reprimanding them.29
Raul M. Gonzalez20 and Department of Interior and Local Government
Undersecretary Marius P. Corpus21 communicated their inability to attend due to Petitioners submit that E.O. 464 violates the following constitutional provisions:
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
Art. VI, Sec. 2130
attend by Executive Secretary Ermita.
Art. VI, Sec. 2231
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 Art. VI, Sec. 132
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. Art. XI, Sec. 133
No. 171246, and pray that E.O. 464 be declared null and void.
Art. III, Sec. 734
All the petitions pray for the issuance of a Temporary Restraining Order
enjoining respondents from implementing, enforcing, and observing E.O. 464. Art. III, Sec. 435

In the oral arguments on the petitions conducted on February 21, 2006, the Art. XIII, Sec. 16 36
following substantive issues were ventilated: (1) whether respondents committed
grave abuse of discretion in implementing E.O. 464 prior to its publication in the Art. II, Sec. 2837
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.
Respondents Executive Secretary Ermita et al., on the other hand, pray in their Representatives Ocampo et al. have not shown any specific prerogative, power,
consolidated memorandum38 on March 13, 2006 for the dismissal of the petitions and privilege of the House of Representatives which had been effectively
for lack of merit. 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
The Court synthesizes the issues to be resolved as follows: implementation of E.O. 464.

1. Whether E.O. 464 contravenes the power of inquiry vested in As for Bayan Muna’s alleged interest as a party-list representing the
Congress; marginalized and underrepresented, and that of the other petitioner groups and
individuals who profess to have standing as advocates and defenders of the
2. Whether E.O. 464 violates the right of the people to information on Constitution, respondents contend that such interest falls short of that required to
matters of public concern; and confer standing on them as parties "injured-in-fact."40

3. Whether respondents have committed grave abuse of discretion when Respecting petitioner Chavez, respondents contend that Chavez may not claim
they implemented E.O. 464 prior to its publication in a newspaper of an interest as a taxpayer for the implementation of E.O. 464 does not involve the
general circulation. exercise of taxing or spending power.41

Essential requisites for judicial review 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
Before proceeding to resolve the issue of the constitutionality of E.O. 464,
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.
Invoking this Court’s ruling in National Economic Protectionism Association v.
Ongpin42 and Valmonte v. Philippine Charity Sweepstakes Office,43 respondents
Like almost all powers conferred by the Constitution, the power of judicial
assert that to be considered a proper party, one must have a personal and
review is subject to limitations, to wit: (1) there must be an actual case or
substantial interest in the case, such that he has sustained or will sustain direct
controversy calling for the exercise of judicial power; (2) the person challenging
injury due to the enforcement of E.O. 464.44
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; That the Senate of the Philippines has a fundamental right essential not only for
(3) the question of constitutionality must be raised at the earliest opportunity; intelligent public decision-making in a democratic system, but more especially
and (4) the issue of constitutionality must be the very lis mota of the case.39 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
Except with respect to the requisites of standing and existence of an actual case
and direct interest over the outcome of the controversy and is the proper party to
or controversy where the disagreement between the parties lies, discussion of the
assail the constitutionality of E.O. 464. Indeed, legislators have standing to
rest of the requisites shall be omitted.
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
Standing official action which they claim infringes their prerogatives as legislators.47

Respondents, through the Solicitor General, assert that the allegations in G.R. In the same vein, party-list representatives Satur Ocampo (Bayan Muna),
Nos. 169659, 169660 and 169667 make it clear that they, adverting to the non- Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran
appearance of several officials of the executive department in the investigations (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are
called by the different committees of the Senate, were brought to vindicate the allowed to sue to question the constitutionality of E.O. 464, the absence of any
constitutional duty of the Senate or its different committees to conduct inquiry in claim that an investigation called by the House of Representatives or any of its
aid of legislation or in the exercise of its oversight functions. They maintain that
committees was aborted due to the implementation of E.O. 464 notwithstanding, present as no public funds or assets are involved and petitioners in G.R. Nos.
it being sufficient that a claim is made that E.O. 464 infringes on their 169777 and 169659 have direct and specific interests in the resolution of the
constitutional rights and duties as members of Congress to conduct investigation controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its
in aid of legislation and conduct oversight functions in the implementation of allegation that E.O. 464 hampers its legislative agenda is vague and uncertain,
laws. 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
The national political party, Bayan Muna, likewise meets the standing indispensable element of a dispute which serves in part to cast it in a form
requirement as it obtained three seats in the House of Representatives in the traditionally capable of judicial resolution.55 In fine, PDP-Laban’s alleged
2004 elections and is, therefore, entitled to participate in the legislative process interest as a political party does not suffice to clothe it with legal standing.
consonant with the declared policy underlying the party list system of affording
citizens belonging to marginalized and underrepresented sectors, organizations Actual Case or Controversy
and parties who lack well-defined political constituencies to contribute to the
formulation and enactment of legislation that will benefit the nation.48 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.
As Bayan Muna and Representatives Ocampo et al. have the standing to file their 464, particularly those on the NorthRail project and the wiretapping controversy.
petitions, passing on the standing of their co-petitioners Courage and Codal is
rendered unnecessary.49 Respondents counter that there is no case or controversy, there being no showing
that President Arroyo has actually withheld her consent or prohibited the
In filing their respective petitions, Chavez, the ALG which claims to be an appearance of the invited officials.56 These officials, they claim, merely
organization of citizens, and the incumbent members of the IBP Board of communicated to the Senate that they have not yet secured the consent of the
Governors and the IBP in behalf of its lawyer members,50 invoke their President, not that the President prohibited their attendance.57 Specifically with
constitutional right to information on matters of public concern, asserting that the regard to the AFP officers who did not attend the hearing on September 28,
right to information, curtailed and violated by E.O. 464, is essential to the 2005, respondents claim that the instruction not to attend without the President’s
effective exercise of other constitutional rights51 and to the maintenance of the consent was based on its role as Commander-in-Chief of the Armed Forces, not
balance of power among the three branches of the government through the on E.O. 464.
principle of checks and balances.52
Respondents thus conclude that the petitions merely rest on an unfounded
It is well-settled that when suing as a citizen, the interest of the petitioner in apprehension that the President will abuse its power of preventing the
assailing the constitutionality of laws, presidential decrees, orders, and other appearance of officials before Congress, and that such apprehension is not
regulations, must be direct and personal. In Franciso v. House of sufficient for challenging the validity of E.O. 464.
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 The Court finds respondents’ assertion that the President has not withheld her
requirement of personal interest. 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
As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing concerned. For E.O. 464 does not require either a deliberate withholding of
in view of the transcendental issues raised in its petition which this Court needs consent or an express prohibition issuing from the President in order to bar
to resolve in order to avert a constitutional crisis. For it to be accorded standing officials from appearing before Congress.
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) As the implementation of the challenged order has already resulted in the
the presence of a clear case of disregard of a constitutional or statutory absence of officials invited to the hearings of petitioner Senate of the
prohibition by the public respondent agency or instrumentality of the Philippines, it would make no sense to wait for any further event before
government, and (3) the lack of any party with a more direct and specific interest considering the present case ripe for adjudication. Indeed, it would be sheer
in raising the questions being raised.54 The first and last determinants not being
abandonment of duty if this Court would now refrain from passing on the appropriate auxiliary to the legislative function. A legislative body cannot
constitutionality of E.O. 464. legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where the
Constitutionality of E.O. 464 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
E.O. 464, to the extent that it bars the appearance of executive officials before has shown that mere requests for such information are often unavailing, and also
Congress, deprives Congress of the information in the possession of these that information which is volunteered is not always accurate or complete; so
officials. To resolve the question of whether such withholding of information some means of compulsion is essential to obtain what is needed.59 . . . (Emphasis
violates the Constitution, consideration of the general power of Congress to and underscoring supplied)
obtain information, otherwise known as the power of inquiry, is in order.
That this power of inquiry is broad enough to cover officials of the executive
The power of inquiry 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
The Congress power of inquiry is expressly recognized in Section 21 of Article
of investigation are one. It follows that the operation of government, being a
VI of the Constitution which reads:
legitimate subject for legislation, is a proper subject for investigation.
SECTION 21. The Senate or the House of Representatives or any of its
Thus, the Court found that the Senate investigation of the government
respective committees may conduct inquiries in aid of legislation in accordance
transaction involved in Arnault was a proper exercise of the power of inquiry.
with its duly published rules of procedure. The rights of persons appearing in or
Besides being related to the expenditure of public funds of which Congress is the
affected by such inquiries shall be respected. (Underscoring supplied)
guardian, the transaction, the Court held, "also involved government agencies
created by Congress and officers whose positions it is within the power of
This provision is worded exactly as Section 8 of Article VIII of the 1973 Congress to regulate or even abolish."
Constitution except that, in the latter, it vests the power of inquiry in the
unicameral legislature established therein – the Batasang Pambansa – and its
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
The 1935 Constitution did not contain a similar provision. Nonetheless, in executive operations.
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.
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
Arnault involved a Senate investigation of the reportedly anomalous purchase of information possessed by executive officials on the operation of their offices is
the Buenavista and Tambobong Estates by the Rural Progress Administration. necessary for wise legislation on that subject, by parity of reasoning, Congress
Arnault, who was considered a leading witness in the controversy, was called to has the right to that information and the power to compel the disclosure thereof.
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,
As evidenced by the American experience during the so-called "McCarthy era,"
detained for contempt. Upholding the Senate’s power to punish Arnault for
however, the right of Congress to conduct inquiries in aid of legislation is, in
contempt, this Court held:
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
Although there is no provision in the Constitution expressly investing either Section 1, Article VIII of the Constitution.
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
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry
power is so far incidental to the legislative function as to be implied. In other
itself might not properly be in aid of legislation, and thus beyond the
words, the power of inquiry – with process to enforce it – is an essential and
constitutional power of Congress. Such inquiry could not usurp judicial officers to withhold information from Congress, the courts, and ultimately the
functions. Parenthetically, one possible way for Congress to avoid such a result public."65
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 Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has
prompted the need for the inquiry. Given such statement in its invitations, along encompassed claims of varying kinds.67 Tribe, in fact, comments that while it is
with the usual indication of the subject of inquiry and the questions relative to customary to employ the phrase "executive privilege," it may be more accurate
and in furtherance thereof, there would be less room for speculation on the part to speak of executive privileges "since presidential refusals to furnish
of the person invited on whether the inquiry is in aid of legislation. 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
Section 21, Article VI likewise establishes crucial safeguards that proscribe the context of either judicial or legislative investigations."
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, One variety of the privilege, Tribe explains, is the state secrets privilege invoked
necessarily implying the constitutional infirmity of an inquiry conducted without by U.S. Presidents, beginning with Washington, on the ground that the
duly published rules of procedure. Section 21 also mandates that the rights of information is of such nature that its disclosure would subvert crucial military or
persons appearing in or affected by such inquiries be respected, an imposition diplomatic objectives. Another variety is the informer’s privilege, or the
that obligates Congress to adhere to the guarantees in the Bill of Rights. 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
These abuses are, of course, remediable before the courts, upon the proper suit law. Finally, a generic privilege for internal deliberations has been said to attach
filed by the persons affected, even if they belong to the executive branch. to intragovernmental documents reflecting advisory opinions, recommendations
Nonetheless, there may be exceptional circumstances, none appearing to obtain and deliberations comprising part of a process by which governmental decisions
at present, wherein a clear pattern of abuse of the legislative power of inquiry and policies are formulated. 68
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, Tribe’s comment is supported by the ruling in In re Sealed Case, thus:
depending on the particulars of each case, attempts by the Executive Branch to
forestall these abuses may be accorded judicial sanction. Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information the confidentiality of which they
Even where the inquiry is in aid of legislation, there are still recognized felt was crucial to fulfillment of the unique role and responsibilities of the
exemptions to the power of inquiry, which exemptions fall under the rubric of executive branch of our government. Courts ruled early that the executive had a
"executive privilege." Since this term figures prominently in the challenged right to withhold documents that might reveal military or state secrets. The
order, it being mentioned in its provisions, its preambular clauses,62 and in its courts have also granted the executive a right to withhold the identity of
very title, a discussion of executive privilege is crucial for determining the government informers in some circumstances and a qualified right to withhold
constitutionality of E.O. 464. information related to pending investigations. x x x"69 (Emphasis and
underscoring supplied)
Executive privilege
The entry in Black’s Law Dictionary on "executive privilege" is similarly
The phrase "executive privilege" is not new in this jurisdiction. It has been used instructive regarding the scope of the doctrine.
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 This privilege, based on the constitutional doctrine of separation of powers,
legal literature of the United States. exempts the executive from disclosure requirements applicable to the ordinary
citizen or organization where such exemption is necessary to the discharge of
Schwartz defines executive privilege as "the power of the Government to highly important executive responsibilities involved in maintaining
withhold information from the public, the courts, and the Congress."64 Similarly, governmental operations, and extends not only to military and diplomatic secrets
Rozell defines it as "the right of the President and high-level executive branch but also to documents integral to an appropriate exercise of the executive’
domestic decisional and policy making functions, that is, those documents "The expectation of a President to the confidentiality of his conversations and
reflecting the frank expression necessary in intra-governmental advisory and correspondences, like the claim of confidentiality of judicial deliberations, for
deliberative communications.70 (Emphasis and underscoring supplied) 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
That a type of information is recognized as privileged does not, however, interest in candid, objective, and even blunt or harsh opinions in Presidential
necessarily mean that it would be considered privileged in all instances. For in decision-making. A President and those who assist him must be free to explore
determining the validity of a claim of privilege, the question that must be asked alternatives in the process of shaping policies and making decisions and to do so
is not only whether the requested information falls within one of the traditional in a way many would be unwilling to express except privately. These are the
privileges, but also whether that privilege should be honored in a given considerations justifying a presumptive privilege for Presidential
procedural setting.71 communications. The privilege is fundamental to the operation of government
and inextricably rooted in the separation of powers under the Constitution x x x "
The leading case on executive privilege in the United States is U.S. v. (Emphasis and underscoring supplied)
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 Almonte involved a subpoena duces tecum issued by the Ombudsman against
requiring the production of certain tapes and documents relating to the Watergate the therein petitioners. It did not involve, as expressly stated in the decision, the
investigations. The claim of privilege was based on the President’s general right of the people to information.78 Nonetheless, the Court recognized that there
interest in the confidentiality of his conversations and correspondence. The U.S. are certain types of information which the government may withhold from the
Court held that while there is no explicit reference to a privilege of public, thus acknowledging, in substance if not in name, that executive privilege
confidentiality in the U.S. Constitution, it is constitutionally based to the extent may be claimed against citizens’ demands for information.
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 In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the
must be balanced against the public interest in the fair administration of criminal common law holding that there is a "governmental privilege against public
justice. Notably, the Court was careful to clarify that it was not there addressing disclosure with respect to state secrets regarding military, diplomatic and other
the issue of claims of privilege in a civil litigation or against congressional national security matters."80 The same case held that closed-door Cabinet
demands for information. meetings are also a recognized limitation on the right to information.

Cases in the U.S. which involve claims of executive privilege against Congress Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right
are rare.73 Despite frequent assertion of the privilege to deny information to to information does not extend to matters recognized as "privileged information
Congress, beginning with President Washington’s refusal to turn over treaty under the separation of powers,"82 by which the Court meant Presidential
negotiation records to the House of Representatives, the U.S. Supreme Court has conversations, correspondences, and discussions in closed-door Cabinet
never adjudicated the issue.74 However, the U.S. Court of Appeals for the meetings. It also held that information on military and diplomatic secrets and
District of Columbia Circuit, in a case decided earlier in the same year as Nixon, those affecting national security, and information on investigations of crimes by
recognized the President’s privilege over his conversations against a law enforcement agencies before the prosecution of the accused were exempted
congressional subpoena.75 Anticipating the balancing approach adopted by the from the right to information.
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 From the above discussion on the meaning and scope of executive privilege,
disclosure to the Committee. Ruling that the balance favored the President, the both in the United States and in this jurisdiction, a clear principle emerges.
Court declined to enforce the subpoena. 76 Executive privilege, whether asserted against Congress, the courts, or the public,
is recognized only in relation to certain types of information of a sensitive
In this jurisdiction, the doctrine of executive privilege was recognized by this character. While executive privilege is a constitutional concept, a claim thereof
Court in Almonte v. Vasquez.77Almonte used the term in reference to the same may be valid or not depending on the ground invoked to justify it and the context
privilege subject of Nixon. It quoted the following portion of the Nixon decision in which it is made. Noticeably absent is any recognition that executive officials
which explains the basis for the privilege: 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 our experience in the Regular Batasang Pambansa – as the Gentleman himself
favor of disclosure. 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
Validity of Section 1 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
Section 1 is similar to Section 3 in that both require the officials covered by them investigation, we usually issue subpoenas.
to secure the consent of the President prior to appearing before Congress. There
are significant differences between the two provisions, however, which constrain I want to be clarified on a statement made by Commissioner Suarez when he said
this Court to discuss the validity of these provisions separately. 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
Section 1 specifically applies to department heads. It does not, unlike Section 3, that they need not come when they are invited or subpoenaed by the committee
require a prior determination by any official whether they are covered by E.O. of either House when it comes to inquiries in aid of legislation or congressional
464. The President herself has, through the challenged order, made the investigation. According to Commissioner Suarez, that is allowed and their
determination that they are. Further, unlike also Section 3, the coverage of presence can be had under Section 21. Does the gentleman confirm this, Madam
department heads under Section 1 is not made to depend on the department President?
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 MR. DAVIDE. We confirm that, Madam President, because Section 20 refers
reference to executive privilege at all. Rather, the required prior consent under only to what was originally the Question Hour, whereas, Section 21 would refer
Section 1 is grounded on Article VI, Section 22 of the Constitution on what has specifically to inquiries in aid of legislation, under which anybody for that
been referred to as the question hour. matter, may be summoned and if he refuses, he can be held in contempt of the
House.83 (Emphasis and underscoring supplied)
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 A distinction was thus made between inquiries in aid of legislation and the
House shall provide, appear before and be heard by such House on any matter question hour. While attendance was meant to be discretionary in the question
pertaining to their departments. Written questions shall be submitted to the hour, it was compulsory in inquiries in aid of legislation. The reference to
President of the Senate or the Speaker of the House of Representatives at least Commissioner Suarez bears noting, he being one of the proponents of the
three days before their scheduled appearance. Interpellations shall not be limited amendment to make the appearance of department heads discretionary in the
to written questions, but may cover matters related thereto. When the security of question hour.
the State or the public interest so requires and the President so states in writing,
the appearance shall be conducted in executive session. 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
Determining the validity of Section 1 thus requires an examination of the the provision on question hour from its original position as Section 20 in the
meaning of Section 22 of Article VI. Section 22 which provides for the question original draft down to Section 31, far from the provision on inquiries in aid of
hour must be interpreted vis-à-vis Section 21 which provides for the power of legislation. This gave rise to the following exchange during the deliberations:
either House of Congress to "conduct inquiries in aid of legislation." As the
following excerpt of the deliberations of the Constitutional Commission shows, MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on
the framers were aware that these two provisions involved distinct functions of Style] We now go, Mr. Presiding Officer, to the Article on Legislative and may I
Congress. request the chairperson of the Legislative Department, Commissioner Davide, to
give his reaction.
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 THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
compelled anymore to appear before the House of Representatives or before the recognized.|avvphi|.net
Senate. I have a particular problem in this regard, Madam President, because in
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the as Chairman of the Committee on the Legislative Department. His views may
Question Hour. I propose that instead of putting it as Section 31, it should follow thus be presumed as representing that of his Committee.
Legislative Inquiries.
In the context of a parliamentary system of government, the "question hour" has
THE PRESIDING OFFICER. What does the committee say? 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
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding operation of the government,85 corresponding to what is known in Britain as the
Officer. question period. There was a specific provision for a question hour in the 1973
Constitution86 which made the appearance of ministers mandatory. The same
MR. MAAMBONG. Actually, we considered that previously when we perfectly conformed to the parliamentary system established by that
sequenced this but we reasoned that in Section 21, which is Legislative Inquiry, Constitution, where the ministers are also members of the legislature and are
it is actually a power of Congress in terms of its own lawmaking; whereas, a directly accountable to it.
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 An essential feature of the parliamentary system of government is the immediate
Hour as Section 31. I hope Commissioner Davide will consider this. accountability of the Prime Minister and the Cabinet to the National Assembly.
They shall be responsible to the National Assembly for the program of
MR. DAVIDE. The Question Hour is closely related with the legislative power, government and shall determine the guidelines of national policy. Unlike in the
and it is precisely as a complement to or a supplement of the Legislative Inquiry. presidential system where the tenure of office of all elected officials cannot be
The appearance of the members of Cabinet would be very, very essential not terminated before their term expired, the Prime Minister and the Cabinet remain
only in the application of check and balance but also, in effect, in aid of in office only as long as they enjoy the confidence of the National Assembly.
legislation. The moment this confidence is lost the Prime Minister and the Cabinet may be
MR. MAAMBONG. After conferring with the committee, we find merit in the
suggestion of Commissioner Davide. In other words, we are accepting that and The framers of the 1987 Constitution removed the mandatory nature of such
so this Section 31 would now become Section 22. Would it be, Commissioner appearance during the question hour in the present Constitution so as to conform
Davide? 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
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
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,
Consistent with their statements earlier in the deliberations, Commissioners in light of the absence of a mandatory question period, the need to enforce
Davide and Maambong proceeded from the same assumption that these Congress’ right to executive information in the performance of its legislative
provisions pertained to two different functions of the legislature. Both function becomes more imperative. As Schwartz observes:
Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the question
Indeed, if the separation of powers has anything to tell us on the subject under
hour. Commissioner Davide’s only concern was that the two provisions on these
discussion, it is that the Congress has the right to obtain information from any
distinct powers be placed closely together, they being complementary to each
source – even from officials of departments and agencies in the executive
other. Neither Commissioner considered them as identical functions of Congress.
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
The foregoing opinion was not the two Commissioners’ alone. From the above- legislative and executive branches. It is this very separation that makes the
quoted exchange, Commissioner Maambong’s committee – the Committee on congressional right to obtain information from the executive so essential, if the
Style – shared the view that the two provisions reflected distinct functions of functions of the Congress as the elected representatives of the people are
Congress. Commissioner Davide, on the other hand, was speaking in his capacity 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 branch, and the due respect accorded to a co-equal branch of government which
such as the British question period have perforce made reliance by the Congress is sanctioned by a long-standing custom.
upon its right to obtain information from the executive essential, if it is
intelligently to perform its legislative tasks. Unless the Congress possesses the By the same token, members of the Supreme Court are also exempt from this
right to obtain executive information, its power of oversight of administration in power of inquiry. Unlike the Presidency, judicial power is vested in a collegial
a system such as ours becomes a power devoid of most of its practical content, body; hence, each member thereof is exempt on the basis not only of separation
since it depends for its effectiveness solely upon information parceled out ex of powers but also on the fiscal autonomy and the constitutional independence of
gratia by the executive.89 (Emphasis and underscoring supplied) 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
Sections 21 and 22, therefore, while closely related and complementary to each Chief Justice.
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 Having established the proper interpretation of Section 22, Article VI of the
aim of which is to elicit information that may be used for legislation, while the Constitution, the Court now proceeds to pass on the constitutionality of Section 1
other pertains to the power to conduct a question hour, the objective of which is of E.O. 464.
to obtain information in pursuit of Congress’ oversight function.
Section 1, in view of its specific reference to Section 22 of Article VI of the
When Congress merely seeks to be informed on how department heads are Constitution and the absence of any reference to inquiries in aid of legislation,
implementing the statutes which it has issued, its right to such information is not must be construed as limited in its application to appearances of department
as imperative as that of the President to whom, as Chief Executive, such heads in the question hour contemplated in the provision of said Section 22 of
department heads must give a report of their performance as a matter of duty. In Article VI. The reading is dictated by the basic rule of construction that
such instances, Section 22, in keeping with the separation of powers, states that issuances must be interpreted, as much as possible, in a way that will render it
Congress may only request their appearance. Nonetheless, when the inquiry in constitutional.
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 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
In fine, the oversight function of Congress may be facilitated by compulsory 22, Article VI of the Constitution, the appearance of department heads in the
process only to the extent that it is performed in pursuit of legislation. This is question hour is discretionary on their part.
consistent with the intent discerned from the deliberations of the Constitutional
Commission. 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
Ultimately, the power of Congress to compel the appearance of executive the refusal of the department head to appear in such inquiry, unless a valid claim
officials under Section 21 and the lack of it under Section 22 find their basis in of privilege is subsequently made, either by the President herself or by the
the principle of separation of powers. While the executive branch is a co-equal Executive Secretary.
branch of the legislature, it cannot frustrate the power of Congress to legislate by
refusing to comply with its demands for information. Validity of Sections 2 and 3

When Congress exercises its power of inquiry, the only way for department Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b)
heads to exempt themselves therefrom is by a valid claim of privilege. They are to secure the consent of the President prior to appearing before either house of
not exempt by the mere fact that they are department heads. Only one executive Congress. The enumeration is broad. It covers all senior officials of executive
official may be exempted from this power — the President on whom executive departments, all officers of the AFP and the PNP, and all senior national security
power is vested, hence, beyond the reach of Congress except through the power officials who, in the judgment of the heads of offices designated in the same
of impeachment. It is based on her being the highest official of the executive 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 The letter dated September 28, 2005 of respondent Executive Secretary Ermita to
President. Given the title of Section 2 — "Nature, Scope and Coverage of Senate President Drilon illustrates the implied nature of the claim of privilege
Executive Privilege" —, it is evident that under the rule of ejusdem generis, the authorized by E.O. 464. It reads:
determination by the President under this provision is intended to be based on a
similar finding of coverage under executive privilege. 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
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that September 2005 at 10:00 a.m., please be informed that officials of the Executive
executive privilege actually covers persons. Such is a misuse of the doctrine. Department invited to appear at the meeting will not be able to attend the same
Executive privilege, as discussed above, is properly invoked in relation to without the consent of the President, pursuant to Executive Order No. 464 (s.
specific categories of information and not to categories of persons. 2005), entitled "Ensuring Observance Of The Principle Of Separation Of
Powers, Adherence To The Rule On Executive Privilege And Respect For The
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of
coverage of executive privilege, the reference to persons being "covered by the Legislation Under The Constitution, And For Other Purposes". Said officials
executive privilege" may be read as an abbreviated way of saying that the person have not secured the required consent from the President. (Underscoring
is in possession of information which is, in the judgment of the head of office supplied)
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. 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
Upon a determination by the designated head of office or by the President that an recognized grounds of the privilege to justify their absence. Nor does it expressly
official is "covered by the executive privilege," such official is subjected to the state that in view of the lack of consent from the President under E.O. 464, they
requirement that he first secure the consent of the President prior to appearing cannot attend the hearing.
before Congress. This requirement effectively bars the appearance of the official
concerned unless the same is permitted by the President. The proviso allowing Significant premises in this letter, however, are left unstated, deliberately or not.
the President to give its consent means nothing more than that the President may The letter assumes that the invited officials are covered by E.O. 464. As
reverse a prohibition which already exists by virtue of E.O. 464. 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,
Thus, underlying this requirement of prior consent is the determination by a head that the invited official possesses information that is covered by executive
of office, authorized by the President under E.O. 464, or by the President herself, privilege. Thus, although it is not stated in the letter that such determination has
that such official is in possession of information that is covered by executive been made, the same must be deemed implied. Respecting the statement that the
privilege. This determination then becomes the basis for the official’s not invited officials have not secured the consent of the President, it only means that
showing up in the legislative investigation. the President has not reversed the standing prohibition against their appearance
before Congress.
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 Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the
President, or a head of office authorized by the President, has determined that the executive branch, either through the President or the heads of offices authorized
requested information is privileged, and that the President has not reversed such under E.O. 464, has made a determination that the information required by the
determination. Such declaration, however, even without mentioning the term Senate is privileged, and that, at the time of writing, there has been no contrary
"executive privilege," amounts to an implied claim that the information is being pronouncement from the President. In fine, an implied claim of privilege has
withheld by the executive branch, by authority of the President, on the basis of been made by the executive.
executive privilege. Verily, there is an implied claim of privilege.
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 A claim of privilege, being a claim of exemption from an obligation to disclose
claimed as privileged even against Congress. Thus, the case holds: information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:

There is no claim by PEA that the information demanded by petitioner is The privilege belongs to the government and must be asserted by it; it can
privileged information rooted in the separation of powers. The information does neither be claimed nor waived by a private party. It is not to be lightly invoked.
not cover Presidential conversations, correspondences, or discussions during There must be a formal claim of privilege, lodged by the head of the department
closed-door Cabinet meetings which, like internal-deliberations of the Supreme which has control over the matter, after actual personal consideration by that
Court and other collegiate courts, or executive sessions of either house of officer. The court itself must determine whether the circumstances are
Congress, are recognized as confidential. This kind of information cannot be appropriate for the claim of privilege, and yet do so without forcing a disclosure
pried open by a co-equal branch of government. A frank exchange of exploratory of the very thing the privilege is designed to protect.92 (Underscoring supplied)
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 Absent then a statement of the specific basis of a claim of executive privilege,
tasked to exercise Presidential, Legislative and Judicial power. This is not the there is no way of determining whether it falls under one of the traditional
situation in the instant case.91 (Emphasis and underscoring supplied) 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
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the privilege asserted against the Ombudsman in Almonte v. Vasquez94 and, more in
mere fact that it sanctions claims of executive privilege. This Court must look point, against a committee of the Senate in Senate Select Committee on
further and assess the claim of privilege authorized by the Order to determine Presidential Campaign Activities v. Nixon.95
whether it is valid.
A.O. Smith v. Federal Trade Commission is enlightening:
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 [T]he lack of specificity renders an assessment of the potential harm resulting
surrounding it, there is, in an implied claim of privilege, a defect that renders it from disclosure impossible, thereby preventing the Court from balancing such
invalid per se. By its very nature, and as demonstrated by the letter of respondent harm against plaintiffs’ needs to determine whether to override any claims of
Executive Secretary quoted above, the implied claim authorized by Section 3 of privilege.96 (Underscoring supplied)
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, And so is U.S. v. Article of Drug:97
closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the types of
information that are covered by the privilege under the challenged order,
On the present state of the record, this Court is not called upon to perform this
Congress is left to speculate as to which among them is being referred to by the
balancing operation. In stating its objection to claimant’s interrogatories,
executive. The enumeration is not even intended to be comprehensive, but a
government asserts, and nothing more, that the disclosures sought by claimant
mere statement of what is included in the phrase "confidential or classified
would inhibit the free expression of opinion that non-disclosure is designed to
information between the President and the public officers covered by this
protect. The government has not shown – nor even alleged – that those who
executive order."
evaluated claimant’s product were involved in internal policymaking, generally,
or in this particular instance. Privilege cannot be set up by an unsupported claim.
Certainly, Congress has the right to know why the executive considers the The facts upon which the privilege is based must be established. To find these
requested information privileged. It does not suffice to merely declare that the interrogatories objectionable, this Court would have to assume that the
President, or an authorized head of office, has determined that it is so, and that evaluation and classification of claimant’s products was a matter of internal
the President has not overturned that determination. Such declaration leaves policy formulation, an assumption in which this Court is unwilling to indulge sua
Congress in the dark on how the requested information could be classified as sponte.98 (Emphasis and underscoring supplied)
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.
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency determining the requisite degree of particularity would be the privilege against
must provide ‘precise and certain’ reasons for preserving the confidentiality of self-incrimination. Thus, Hoffman v. U.S.104 declares:
requested information."
The witness is not exonerated from answering merely because he declares that in
Black v. Sheraton Corp. of America100 amplifies, thus: 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,
A formal and proper claim of executive privilege requires a specific designation and to require him to answer if ‘it clearly appears to the court that he is
and description of the documents within its scope as well as precise and certain mistaken.’ However, if the witness, upon interposing his claim, were required to
reasons for preserving their confidentiality. Without this specificity, it is prove the hazard in the sense in which a claim is usually required to be
impossible for a court to analyze the claim short of disclosure of the very thing established in court, he would be compelled to surrender the very protection
sought to be protected. As the affidavit now stands, the Court has little more than which the privilege is designed to guarantee. To sustain the privilege, it need
its sua sponte speculation with which to weigh the applicability of the claim. An only be evident from the implications of the question, in the setting in which it is
improperly asserted claim of privilege is no claim of privilege. Therefore, asked, that a responsive answer to the question or an explanation of why it
despite the fact that a claim was made by the proper executive as Reynolds cannot be answered might be dangerous because injurious disclosure could
requires, the Court can not recognize the claim in the instant case because it is result." x x x (Emphasis and underscoring supplied)
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 claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is
the Defendant has given no precise or compelling reasons to shield these thus invalid per se. It is not asserted. It is merely implied. Instead of providing
documents from outside scrutiny, would make a farce of the whole precise and certain reasons for the claim, it merely invokes E.O. 464, coupled
procedure.101 (Emphasis and underscoring supplied) 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
Due respect for a co-equal branch of government, moreover, demands no less justified under the circumstances of each case. It severely frustrates the power of
than a claim of privilege clearly stating the grounds therefor. Apropos is the inquiry of Congress.
following ruling in McPhaul v. U.S:102
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
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, No infirmity, however, can be imputed to Section 2(a) as it merely provides
that ‘if (petitioner) had legitimate reasons for failing to produce the records of guidelines, binding only on the heads of office mentioned in Section 2(b), on
the association, a decent respect for the House of Representatives, by whose what is covered by executive privilege. It does not purport to be conclusive on
authority the subpoenas issued, would have required that (he) state (his) reasons the other branches of government. It may thus be construed as a mere expression
for noncompliance upon the return of the writ. Such a statement would have of opinion by the President regarding the nature and scope of executive
given the Subcommittee an opportunity to avoid the blocking of its inquiry by privilege.
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 Petitioners, however, assert as another ground for invalidating the challenged
authority and an obstruction of its processes. His failure to make any such order the alleged unlawful delegation of authority to the heads of offices in
statement was "a patent evasion of the duty of one summoned to produce papers Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of
before a congressional committee[, and] cannot be condoned." (Emphasis and the United States where, so it claims, only the President can assert executive
underscoring supplied; citations omitted) privilege to withhold information from Congress.

Upon the other hand, Congress must not require the executive to state the Section 2(b) in relation to Section 3 virtually provides that, once the head of
reasons for the claim with such particularity as to compel disclosure of the office determines that a certain information is privileged, such determination is
information which the privilege is meant to protect.103 A useful analogy in 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 from Article VI Section 21 of the Constitution mandating that "[t]he rights of
official. These provisions thus allow the President to authorize claims of persons appearing in or affected by such inquiries shall be respected."
privilege by mere silence.
In light of the above discussion of Section 3, it is clear that it is essentially an
Such presumptive authorization, however, is contrary to the exceptional nature authorization for implied claims of executive privilege, for which reason it must
of the privilege. Executive privilege, as already discussed, is recognized with be invalidated. That such authorization is partly motivated by the need to ensure
respect to information the confidential nature of which is crucial to the respect for such officials does not change the infirm nature of the authorization
fulfillment of the unique role and responsibilities of the executive branch,105 or itself.
in those instances where exemption from disclosure is necessary to the discharge
of highly important executive responsibilities.106 The doctrine of executive Right to Information
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 E.O 464 is concerned only with the demands of Congress for the appearance of
being, by definition, an exemption from the obligation to disclose information, in executive officials in the hearings conducted by it, and not with the demands of
this case to Congress, the necessity must be of such high degree as to outweigh citizens for information pursuant to their right to information on matters of
the public interest in enforcing that obligation in a particular case. public concern. Petitioners are not amiss in claiming, however, that what is
involved in the present controversy is not merely the legislative power of
In light of this highly exceptional nature of the privilege, the Court finds it inquiry, but the right of the people to information.
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 There are, it bears noting, clear distinctions between the right of Congress to
which case the Executive Secretary must state that the authority is "By order of information which underlies the power of inquiry and the right of the people to
the President," which means that he personally consulted with her. The privilege information on matters of public concern. For one, the demand of a citizen for
being an extraordinary power, it must be wielded only by the highest official in the production of documents pursuant to his right to information does not have
the executive hierarchy. In other words, the President may not authorize her the same obligatory force as a subpoena duces tecum issued by Congress.
subordinates to exercise such power. There is even less reason to uphold such Neither does the right to information grant a citizen the power to exact testimony
authorization in the instant case where the authorization is not explicit but by from government officials. These powers belong only to Congress and not to an
mere silence. Section 3, in relation to Section 2(b), is further invalid on this individual citizen.
Thus, while Congress is composed of representatives elected by the people, it
It follows, therefore, that when an official is being summoned by Congress on a does not follow, except in a highly qualified sense, that in every exercise of its
matter which, in his own judgment, might be covered by executive privilege, he power of inquiry, the people are exercising their right to information.
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
To the extent that investigations in aid of legislation are generally conducted in
order to provide the President or the Executive Secretary with fair opportunity to
public, however, any executive issuance tending to unduly limit disclosures of
consider whether the matter indeed calls for a claim of executive privilege. If,
information in such investigations necessarily deprives the people of information
after the lapse of that reasonable time, neither the President nor the Executive
which, being presumed to be in aid of legislation, is presumed to be a matter of
Secretary invokes the privilege, Congress is no longer bound to respect the
public concern. The citizens are thereby denied access to information which they
failure of the official to appear before Congress and may then opt to avail of the
can use in formulating their own opinions on the matter before Congress —
necessary legal means to compel his appearance.
opinions which they can then communicate to their representatives and other
government officials through the various legal means allowed by their freedom
The Court notes that one of the expressed purposes for requiring officials to of expression. Thus holds Valmonte v. Belmonte:
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
It is in the interest of the State that the channels for free political discussion be
legislation." That such rights must indeed be respected by Congress is an echo
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 The infirm provisions of E.O. 464, however, allow the executive branch to evade
citizenry is informed and thus able to formulate its will intelligently. Only when congressional requests for information without need of clearly asserting a right
the participants in the discussion are aware of the issues and have access to to do so and/or proffering its reasons therefor. By the mere expedient of invoking
information relating thereto can such bear fruit.107(Emphasis and underscoring said provisions, the power of Congress to conduct inquiries in aid of legislation
supplied) is frustrated. That is impermissible. For [w]hat republican theory did
accomplish…was to reverse the old presumption in favor of secrecy, based on
The impairment of the right of the people to information as a consequence of the divine right of kings and nobles, and replace it with a presumption in favor of
E.O. 464 is, therefore, in the sense explained above, just as direct as its violation publicity, based on the doctrine of popular sovereignty. (Underscoring
of the legislature’s power of inquiry. supplied)109

Implementation of E.O. 464 prior to its publication Resort to any means then by which officials of the executive branch could refuse
to divulge information cannot be presumed valid. Otherwise, we shall not have
While E.O. 464 applies only to officials of the executive branch, it does not merely nullified the power of our legislature to inquire into the operations of
follow that the same is exempt from the need for publication. On the need for government, but we shall have given up something of much greater value – our
publishing even those statutes that do not directly apply to people in general, right as a people to take part in government.
Tañada v. Tuvera states:
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of
The term "laws" should refer to all laws and not only to those of general Executive Order No. 464 (series of 2005), "Ensuring Observance of the Principle
application, for strictly speaking all laws relate to the people in general albeit of Separation of Powers, Adherence to the Rule on Executive
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 Privilege and Respect for the Rights of Public Officials Appearing in Legislative
decreed instant naturalization. It surely cannot be said that such a law does not Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,"
affect the public although it unquestionably does not apply directly to all the are declared VOID. Sections 1 and 2(a) are, however, VALID.
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, SO ORDERED.
even in courts of justice.108 (Emphasis and underscoring supplied)
Although the above statement was made in reference to statutes, logic dictates Associate Justice
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.


Congress undoubtedly has a right to information from the executive branch

whenever it is sought in aid of legislation. If the executive branch withholds such
information on the ground that it is privileged, it must so assert it and state the
reason therefor and why it must be respected.
Manila vs.
R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, x-------------------------------------x
vs. G.R. No. 171483 May 3, 2006
x-------------------------------------x vs.
INC., Petitioners, LOMIBAO, Respondents.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE x-------------------------------------x
G.R. No. 171400 May 3, 2006
G.R. No. 171485 May 3, 2006 vs.
vs. Once again, the Court is faced with an age-old but persistently modern
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL problem. How does the Constitution of a free people combine the degree
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, of liberty, without which, law becomes tyranny, with the degree of law, without
AS PNP CHIEF,Respondents.
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa
x-------------------------------------x People Power I, President Arroyo issued PP 1017 declaring a state of national
emergency, thus:
G.R. No. 171424 May 3, 2006
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic
LOREN B. LEGARDA, Petitioner, of the Philippines and Commander-in-Chief of the Armed Forces of the
vs. Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS the Philippine Constitution which states that: "The President. . . whenever it
PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE .rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby
NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY command the Armed Forces of the Philippines, to maintain law and order
AS CHIEF OF STAFF OF THE ARMED FORCES OF THE throughout the Philippines, prevent or suppress all forms of lawless violence
PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS as well as any act of insurrection or rebellion and to enforce obedience to all
EXECUTIVE SECRETARY, Respondents. the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article 12 of
DECISION the Constitution do hereby declare a State of National Emergency.

SANDOVAL-GUTIERREZ, J.: She cited the following facts as bases:

All powers need some restraint; practical adjustments rather than rigid formula WHEREAS, over these past months, elements in the political opposition have
are necessary.1 Superior strength – the use of force – cannot make wrongs into conspired with authoritarians of the extreme Left represented by the NDF-
rights. In this regard, the courts should be vigilant in safeguarding the CPP-NPA and the extreme Right, represented by military adventurists – the
constitutional rights of the citizens, specifically their liberty. historical enemies of the democratic Philippine State – who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly constituted Government elected in May
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most
relevant. He said: "In cases involving liberty, the scales of justice should
weigh heavily against government and in favor of the poor, the oppressed,
the marginalized, the dispossessed and the weak." Laws and actions that WHEREAS, these conspirators have repeatedly tried to bring down the
restrict fundamental rights come to the courts "with a heavy presumption against President;
their constitutional validity."2
WHEREAS, the claims of these elements have been recklessly magnified by
These seven (7) consolidated petitions for certiorari and prohibition allege that certain segments of the national media;
in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No.
5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of WHEREAS, this series of actions is hurting the Philippine State – by
discretion. Petitioners contend that respondent officials of the Government, in obstructing governance including hindering the growth of the economy and
their professed efforts to defend and preserve democratic institutions, are sabotaging the people’s confidence in government and their faith in the
actually trampling upon the very freedom guaranteed and protected by the future of this country;
Constitution. Hence, such issuances are void for being unconstitutional.
WHEREAS, these actions are adversely affecting the economy; WHEREAS, Article 2, Section 4 of our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
WHEREAS, these activities give totalitarian forces of both the extreme Left Government;
and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State; WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute a clear and present danger to the safety and the
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and integrity of the Philippine State and of the Filipino people;
preservation of the democratic institutions and the State the primary duty of
Government; WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute aclear and present danger to the safety and the NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of
integrity of the Philippine State and of the Filipino people; the powers vested in me under the Constitution as President of the Republic of
the Philippines, and Commander-in-Chief of the Republic of the Philippines, and
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus: pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon
the Armed Forces of the Philippines (AFP) and the Philippine National Police
WHEREAS, over these past months, elements in the political opposition have (PNP), to prevent and suppress acts of terrorism and lawless violence in the
conspired with authoritarians of the extreme Left, represented by the NDF-CPP- country;
NPA and the extreme Right, represented by military adventurists - the historical
enemies of the democratic Philippine State – and who are now in a tactical I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as
alliance and engaged in a concerted and systematic conspiracy, over a broad the officers and men of the AFP and PNP, to immediately carry out the
front, to bring down the duly-constituted Government elected in May 2004; necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence.
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government; On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP
WHEREAS, the claims of these elements have been recklessly magnified by 1017. She issued Proclamation No. 1021 which reads:
certain segments of the national media;
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of
WHEREAS, these series of actions is hurting the Philippine State by obstructing the Constitution, Proclamation No. 1017 dated February 24, 2006, was issued
governance, including hindering the growth of the economy and sabotaging the declaring a state of national emergency;
people’s confidence in the government and their faith in the future of this
country; WHEREAS, by virtue of General Order No.5 and No.6 dated February 24,
2006, which were issued on the basis of Proclamation No. 1017, the Armed
WHEREAS, these actions are adversely affecting the economy; Forces of the Philippines (AFP) and the Philippine National Police (PNP), were
directed to maintain law and order throughout the Philippines, prevent and
suppress all form of lawless violence as well as any act of rebellion and to
WHEREAS, these activities give totalitarian forces; of both the extreme Left
undertake such action as may be necessary;
and extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and
quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of diskettes, and copies of subversive documents.7 Prior to his arrest, Lt. San Juan
the Republic of the Philippines, by virtue of the powers vested in me by law, announced through DZRH that the "Magdalo’s D-Day would be on February 24,
hereby declare that the state of national emergency has ceased to exist. 2006, the 20th Anniversary of Edsa I."

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
stated that the proximate cause behind the executive issuances was the members of the PNP- Special Action Force were planning to defect. Thus, he
conspiracy among some military officers, leftist insurgents of the New People’s immediately ordered SAF Commanding General Marcelino Franco, Jr.
Army (NPA), and some members of the political opposition in a plot to unseat or to "disavow" any defection. The latter promptly obeyed and issued a public
assassinate President Arroyo.4 They considered the aim to oust or assassinate the statement: "All SAF units are under the effective control of responsible and
President and take-over the reigns of government as a clear and present danger. trustworthy officers with proven integrity and unquestionable loyalty."

During the oral arguments held on March 7, 2006, the Solicitor General specified On the same day, at the house of former Congressman Peping Cojuangco,
the facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there President Cory Aquino’s brother, businessmen and mid-level government
was no refutation from petitioners’ counsels. officials plotted moves to bring down the Arroyo administration. Nelly Sindayen
of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a
The Solicitor General argued that the intent of the Constitution is to give U.S. government official about his group’s plans if President Arroyo is ousted.
full discretionary powers to the President in determining the necessity of Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen.
calling out the armed forces. He emphasized that none of the petitioners has Danilo Lim, Commander of the Army’s elite Scout Ranger. Lim said "it was all
shown that PP 1017 was without factual bases. While he explained that it is not systems go for the planned movement against Arroyo."8
respondents’ task to state the facts behind the questioned Proclamation, however,
they are presenting the same, narrated hereunder, for the elucidation of the B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
issues. Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
(AFP), that a huge number of soldiers would join the rallies to provide a critical
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny mass and armed component to the Anti-Arroyo protests to be held on February
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo 24, 2005. According to these two (2) officers, there was no way they could
Group indicted in the Oakwood mutiny, escaped their detention cell in Fort possibly stop the soldiers because they too, were breaking the chain of command
Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to join the forces foist to unseat the President. However, Gen. Senga has
to elude arrest at all costs. They called upon the people to "show and proclaim remained faithful to his Commander-in-Chief and to the chain of command. He
our displeasure at the sham regime. Let us demonstrate our disgust, not only by immediately took custody of B/Gen. Lim and directed Col. Querubin to return to
going to the streets in protest, but also by wearing red bands on our left arms." 5 the Philippine Marines Headquarters in Fort Bonifacio.

On February 17, 2006, the authorities got hold of a document entitled "Oplan Earlier, the CPP-NPA called for intensification of political and revolutionary
Hackle I " which detailed plans for bombings and attacks during the Philippine work within the military and the police establishments in order to forge alliances
Military Academy Alumni Homecoming in Baguio City. The plot was to with its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal
assassinate selected targets including some cabinet members and President declared: "The Communist Party and revolutionary movement and the entire
Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to people look forward to the possibility in the coming year of accomplishing its
attend the Alumni Homecoming. The next day, at the height of the celebration, a immediate task of bringing down the Arroyo regime; of rendering it to weaken
bomb was found and detonated at the PMA parade ground. and unable to rule that it will not take much longer to end it."9

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in On the other hand, Cesar Renerio, spokesman for the National Democratic Front
Batangas province. Found in his possession were two (2) flash disks containing (NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo groups
minutes of the meetings between members of the Magdalo Group and the within the military and police are growing rapidly, hastened by the economic
National People’s Army (NPA), a tape recorder, audio cassette cartridges, difficulties suffered by the families of AFP officers and enlisted personnel who
undertake counter-insurgency operations in the field." He claimed that with the riot policemen broke up an EDSA celebration rally held along Ayala Avenue and
forces of the national democratic movement, the anti-Arroyo conservative Paseo de Roxas Street in Makati City.12
political parties, coalitions, plus the groups that have been reinforcing since June
2005, it is probable that the President’s ouster is nearing its concluding stage in According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
the first half of 2006. ground for the dispersal of their assemblies.

Respondents further claimed that the bombing of telecommunication towers and During the dispersal of the rallyists along EDSA, police arrested (without
cell sites in Bulacan and Bataan was also considered as additional factual basis warrant) petitioner Randolf S. David, a professor at the University of the
for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Philippines and newspaper columnist. Also arrested was his companion, Ronald
Benguet resulting in the death of three (3) soldiers. And also the directive of the Llamas, president of party-list Akbayan.
Communist Party of the Philippines ordering its front organizations to join 5,000
Metro Manila radicals and 25,000 more from the provinces in mass protests.10 At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of
By midnight of February 23, 2006, the President convened her security advisers PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding
and several cabinet members to assess the gravity of the fermenting peace and team confiscated news stories by reporters, documents, pictures, and mock-ups
order situation. She directed both the AFP and the PNP to account for all their of the Saturday issue. Policemen from Camp Crame in Quezon City were
men and ensure that the chain of command remains solid and undivided. To stationed inside the editorial and business offices of the newspaper; while
protect the young students from any possible trouble that might break loose on policemen from the Manila Police District were stationed outside the building.13
the streets, the President suspended classes in all levels in the entire National
Capital Region. A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and its
For their part, petitioners cited the events that followed after the issuance of sister publication, the tabloid Abante.
PP 1017 and G.O. No. 5.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to
Immediately, the Office of the President announced the cancellation of all show a ‘strong presence,’ to tell media outlets not to connive or do anything that
programs and activities related to the 20th anniversary celebration of Edsa would help the rebels in bringing down this government." The PNP warned that
People Power I; and revoked the permits to hold rallies issued earlier by the it would take over any media organization that would not follow "standards set
local governments. Justice Secretary Raul Gonzales stated that political rallies, by the government during the state of national emergency." Director General
which to the President’s mind were organized for purposes of destabilization, are Lomibao stated that "if they do not follow the standards – and the standards are
cancelled.Presidential Chief of Staff Michael Defensor announced that - if they would contribute to instability in the government, or if they do not
"warrantless arrests and take-over of facilities, including media, can already be subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will
implemented."11 recommend a ‘takeover.’" National Telecommunications’ Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the government
Undeterred by the announcements that rallies and public assemblies would not for the duration of the state of national emergency. He asked for "balanced
be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and reporting" from broadcasters when covering the events surrounding the coup
National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), attempt foiled by the government. He warned that his agency will not hesitate to
marched from various parts of Metro Manila with the intention of converging at recommend the closure of any broadcast outfit that violates rules set out for
the EDSA shrine. Those who were already near the EDSA site were violently media coverage when the national security is threatened.14
dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
up the marching groups, and scatter the massed participants. The same police representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU),
action was used against the protesters marching forward to Cubao, Quezon City while leaving his farmhouse in Bulacan. The police showed a warrant for his
and to the corner of Santolan Street and EDSA. That same evening, hundreds of arrest dated 1985. Beltran’s lawyer explained that the warrant, which stemmed
from a case of inciting to rebellion filed during the Marcos regime, had long "emergency" refers only to tsunami, typhoon, hurricane and similar occurrences,
been quashed. Beltran, however, is not a party in any of these petitions. hence, there is "absolutely no emergency" that warrants the issuance of PP 1017.

When members of petitioner KMU went to Camp Crame to visit Beltran, they In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
were told they could not be admitted because of PP 1017 and G.O. No. 5. Two Escudero, and twenty one (21) other members of the House of Representatives,
members were arrested and detained, while the rest were dispersed by the police. including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza
Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute
Bayan Muna Representative Satur Ocampo eluded arrest when the police went "usurpation of legislative powers"; "violation of freedom of expression" and "a
after him during a public forum at the Sulo Hotel in Quezon City. But his two declaration of martial law." They alleged that President Arroyo "gravely abused
drivers, identified as Roel and Art, were taken into custody. her discretion in calling out the armed forces without clear and verifiable factual
basis of the possibility of lawless violence and a showing that there is necessity
Retired Major General Ramon Montaño, former head of the Philippine to do so."
Constabulary, was arrested while with his wife and golfmates at the Orchard
Golf and Country Club in Dasmariñas, Cavite. In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they
Attempts were made to arrest Anakpawis Representative Satur Ocampo, arrogate unto President Arroyo the power to enact laws and decrees; (2) their
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casiño issuance was without factual basis; and (3) they violate freedom of expression
and Gabriela Representative Liza Maza. Bayan Muna Representative Josel and the right of the people to peaceably assemble to redress their grievances.
Virador was arrested at the PAL Ticket Office in Davao City. Later, he was
turned over to the custody of the House of Representatives where the "Batasan In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
5" decided to stay indefinitely. that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article
Let it be stressed at this point that the alleged violations of the rights of III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the
Representatives Beltran, Satur Ocampo,et al., are not being raised in these Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of 1017 is an "arbitrary and unlawful exercise by the President of her Martial Law
national emergency has ceased to exist. powers." And assuming that PP 1017 is not really a declaration of Martial Law,
petitioners argued that "it amounts to an exercise by the President of emergency
powers without congressional approval." In addition, petitioners asserted that PP
In the interim, these seven (7) petitions challenging the constitutionality of PP
1017 "goes beyond the nature and function of a proclamation as defined under
1017 and G.O. No. 5 were filed with this Court against the above-named
the Revised Administrative Code."
respondents. Three (3) of these petitions impleaded President Arroyo as
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP
1017 and G.O. No. 5 are "unconstitutional for being violative of the freedom of
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the
expression, including its cognate rights such as freedom of the press and the
grounds that (1) it encroaches on the emergency powers of Congress; (2) itis a
right to access to information on matters of public concern, all guaranteed under
subterfuge to avoid the constitutional requirements for the imposition of martial
Article III, Section 4 of the 1987 Constitution." In this regard, she stated that
law; and (3) it violates the constitutional guarantees of freedom of the press, of
these issuances prevented her from fully prosecuting her election protest pending
speech and of assembly.
before the Presidential Electoral Tribunal.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing
In respondents’ Consolidated Comment, the Solicitor General countered
Co., Inc. challenged the CIDG’s act of raiding the Daily Tribune offices as a
that: first, the petitions should be dismissed for being moot; second,petitioners in
clear case of "censorship" or "prior restraint." They also claimed that the term
G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 government. x x x If the government consciously or unconsciously oversteps
(Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not these limitations there must be some authority competent to hold it in
necessary for petitioners to implead President Arroyo as respondent; fourth, PP control, to thwart its unconstitutional attempt, and thus to vindicate and
1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the preserve inviolate the will of the people as expressed in the Constitution.
people’s right to free expression and redress of grievances. This power the courts exercise. This is the beginning and the end of the
theory of judicial review.22
On March 7, 2006, the Court conducted oral arguments and heard the parties on
the above interlocking issues which may be summarized as follows: But the power of judicial review does not repose upon the courts a "self-starting
capacity."23 Courts may exercise such power only when the following requisites
A. PROCEDURAL: are present: first, there must be an actual case or controversy;second, petitioners
have to raise a question of constitutionality; third, the constitutional question
1) Whether the issuance of PP 1021 renders the petitions moot and must be raised at the earliest opportunity; and fourth, the decision of the
academic. constitutional question must be necessary to the determination of the case
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.), Respondents maintain that the first and second requisites are absent, hence, we
and 171424 (Legarda) have legal standing. shall limit our discussion thereon.

B. SUBSTANTIVE: An actual case or controversy involves a conflict of legal right, an opposite legal
claims susceptible of judicial resolution. It is "definite and concrete, touching the
legal relations of parties having adverse legal interest;" a real and substantial
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
controversy admitting of specific relief.25 The Solicitor General refutes the
existence of such actual case or controversy, contending that the present petitions
2) Whether PP 1017 and G.O. No. 5 are unconstitutional. were rendered "moot and academic" by President Arroyo’s issuance of PP 1021.

a. Facial Challenge Such contention lacks merit.

b. Constitutional Basis A moot and academic case is one that ceases to present a justiciable controversy
by virtue of supervening events,26 so that a declaration thereon would be of no
c. As Applied Challenge practical use or value.27 Generally, courts decline jurisdiction over such case28 or
dismiss it on ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not render the
First, we must resolve the procedural roadblocks. present petitions moot and academic. During the eight (8) days that PP 1017 was
operative, the police officers, according to petitioners, committed illegal acts in
I- Moot and Academic Principle implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they
justify these alleged illegal acts? These are the vital issues that must be
One of the greatest contributions of the American system to this country is the resolved in the present petitions. It must be stressed that "an unconstitutional
concept of judicial review enunciated in Marbury v. Madison.21 This concept act is not a law, it confers no rights, it imposes no duties, it affords no
rests on the extraordinary simple foundation -- protection; it is in legal contemplation, inoperative."30

The Constitution is the supreme law. It was ordained by the people, the ultimate The "moot and academic" principle is not a magical formula that can
source of all political authority. It confers limited powers on the national 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 action, does so as a representative of the general public. He may be a person who
Constitution;31 second, the exceptional character of the situation and the is affected no differently from any other person. He could be suing as a
paramount public interest is involved;32third, when constitutional issue raised "stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he has
requires formulation of controlling principles to guide the bench, the bar, and the to adequately show that he is entitled to seek judicial protection. In other words,
public;33 and fourth, the case is capable of repetition yet evading review.34 he has to make out a sufficient interest in the vindication of the public order and
the securing of relief as a "citizen" or "taxpayer.
All the foregoing exceptions are present here and justify this Court’s assumption
of jurisdiction over the instant petitions. Petitioners alleged that the issuance of Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing
PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the in public actions. The distinction was first laid down in Beauchamp v.
issues being raised affect the public’s interest, involving as they do the people’s Silk,39 where it was held that the plaintiff in a taxpayer’s suit is in a different
basic rights to freedom of expression, of assembly and of the press. Moreover, category from the plaintiff in a citizen’s suit. In the former, the plaintiff is
the Court has the duty to formulate guiding and controlling constitutional affected by the expenditure of public funds, while in the latter, he is but the
precepts, doctrines or rules. It has the symbolic function of educating the bench mere instrument of the public concern. As held by the New York Supreme
and the bar, and in the present petitions, the military and the police, on the Court in People ex rel Case v. Collins:40 "In matter of mere public right,
extent of the protection given by constitutional guarantees.35 And lastly, however…the people are the real parties…It is at least the right, if not the
respondents’ contested actions are capable of repetition. Certainly, the petitions duty, of every citizen to interfere and see that a public offence be properly
are subject to judicial review. pursued and punished, and that a public grievance be remedied." With
respect to taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and
In their attempt to prove the alleged mootness of this case, respondents cited a taxpayer to maintain an action in courts to restrain the unlawful use of
Chief Justice Artemio V. Panganiban’s Separate Opinion in Sanlakas v. public funds to his injury cannot be denied."
Executive Secretary.36 However, they failed to take into account the Chief
Justice’s very statement that an otherwise "moot" case may still be decided However, to prevent just about any person from seeking judicial interference in
"provided the party raising it in a proper case has been and/or continues to be any official policy or act with which he disagreed with, and thus hinders the
prejudiced or damaged as a direct result of its issuance." The present case falls activities of governmental agencies engaged in public service, the United State
right within this exception to the mootness rule pointed out by the Chief Justice. Supreme Court laid down the more stringent "direct injury" test in Ex Parte
Levitt,42 later reaffirmed inTileston v. Ullman.43 The same Court ruled that for a
II- Legal Standing private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct
In view of the number of petitioners suing in various personalities, the Court injury as a result of that action, and it is not sufficient that he has a general
deems it imperative to have a more than passing discussion on legal standing interest common to all members of the public.
or locus standi.
This Court adopted the "direct injury" test in our jurisdiction. In People v.
Locus standi is defined as "a right of appearance in a court of justice on a given Vera,44 it held that the person who impugns the validity of a statute must have "a
question."37 In private suits, standing is governed by the "real-parties-in interest" personal and substantial interest in the case such that he has sustained, or
rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as will sustain direct injury as a result." The Vera doctrine was upheld in a litany
amended. It provides that "every action must be prosecuted or defended in the of cases, such as, Custodio v. President of the Senate,45 Manila Race Horse
name of the real party in interest." Accordingly, the "real-party-in interest" is Trainers’ Association v. De la Fuente,46Pascual v. Secretary of Public
"the party who stands to be benefited or injured by the judgment in the suit Works47 and Anti-Chinese League of the Philippines v. Felix.48
or the party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s
standing is based on his own right to the relief sought. However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This was
The difficulty of determining locus standi arises in public suits. Here, the done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where the
plaintiff who asserts a "public right" in assailing an allegedly illegal official "transcendental importance" of the cases prompted the Court to act liberally.
Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this
Court resolved to pass upon the issues raised due to the "far-reaching (4) for concerned citizens, there must be a showing that the issues
implications" of the petition notwithstanding its categorical statement that raised are of transcendental importance which must be settled early; and
petitioner therein had no personality to file the suit. Indeed, there is a chain of
cases where this liberal policy has been observed, allowing ordinary citizens, (5) for legislators, there must be a claim that the official action
members of Congress, and civic organizations to prosecute actions involving the complained of infringes upon their prerogatives as legislators.
constitutionality or validity of laws, regulations and rulings.51
Significantly, recent decisions show a certain toughening in the Court’s attitude
Thus, the Court has adopted a rule that even where the petitioners have failed to toward legal standing.
show direct injury, they have been allowed to sue under the principle of
"transcendental importance." Pertinent are the following cases: In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a
people’s organization does not give it the requisite personality to question the
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the validity of the on-line lottery contract, more so where it does not raise any issue
enforcement of the constitutional right to information and the of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation
equitable diffusion of natural resources are matters of that public funds are being misused. Nor can it sue as a concerned citizen as it
transcendental importance which clothe the petitioner with locus does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held Comelec,57 the Court reiterated the "direct injury" test with respect to concerned
that "given the transcendental importance of the issues involved, the citizens’ cases involving constitutional issues. It held that "there must be a
Court may relax the standing requirements and allow the suit to showing that the citizen personally suffered some actual or threatened injury
prosper despite the lack of direct injury to the parties seeking arising from the alleged illegal official act."
judicial review" of the Visiting Forces Agreement;
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng
(3) Lim v. Executive Secretary,54 while the Court noted that the Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
petitioners may not file suit in their capacity as taxpayers absent a demonstrated any injury to itself or to its leaders, members or supporters.
showing that "Balikatan 02-01" involves the exercise of Congress’
taxing or spending powers, it reiterated its ruling in Bagong Alyansang In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners
Makabayan v. Zamora,55that in cases of transcendental importance, who are members of Congress have standing to sue, as they claim that the
the cases must be settled promptly and definitely and standing President’s declaration of a state of rebellion is a usurpation of the emergency
requirements may be relaxed. powers of Congress, thus impairing their legislative powers. As to
petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court
By way of summary, the following rules may be culled from the cases decided declared them to be devoid of standing, equating them with the LDP in Lacson.
by this Court. Taxpayers, voters, concerned citizens, and legislators may be
accorded standing to sue, provided that the following requirements are met: Now, the application of the above principles to the present petitions.

(1) the cases involve constitutional issues; The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
(2) for taxpayers, there must be a claim of illegal disbursement of 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged "direct
public funds or that the tax measure is unconstitutional; injury" resulting from "illegal arrest" and "unlawful search" committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General does not
(3) for voters, there must be a showing of obvious interest in the question their legal standing.
validity of the election law in question;
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation once more the transcendental importance of the issue involved, this Court may
of legislative powers. They also raised the issue of whether or not the relax the standing rules.
concurrence of Congress is necessary whenever the alarming powers incident to
Martial Law are used. Moreover, it is in the interest of justice that those affected It must always be borne in mind that the question of locus standi is but corollary
by PP 1017 can be represented by their Congressmen in bringing to the attention to the bigger question of proper exercise of judicial power. This is the underlying
of the Court the alleged violations of their basic rights. legal tenet of the "liberality doctrine" on legal standing. It cannot be doubted that
the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa paramount importance to the Filipino people. To paraphrase Justice Laurel, the
v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. whole of Philippine society now waits with bated breath the ruling of this Court
v. Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of on this very critical matter. The petitions thus call for the application of the
Agrarian Reform,62 Basco v. Philippine Amusement and Gaming "transcendental importance" doctrine, a relaxation of the standing
Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a public requirements for the petitioners in the "PP 1017 cases."
right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws. This Court holds that all the petitioners herein have locus standi.

In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its Incidentally, it is not proper to implead President Arroyo as respondent. Settled
right to peaceful assembly may be deemed sufficient to give it legal is the doctrine that the President, during his tenure of office or actual
standing. Organizations may be granted standing to assert the rights of their incumbency,67 may not be sued in any civil or criminal case, and there is no need
members.65 We take judicial notice of the announcement by the Office of the to provide for it in the Constitution or law. It will degrade the dignity of the high
President banning all rallies and canceling all permits for public assemblies office of the President, the Head of State, if he can be dragged into court
following the issuance of PP 1017 and G.O. No. 5. litigations while serving as such. Furthermore, it is important that he be freed
from any form of harassment, hindrance or distraction to enable him to fully
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the attend to the performance of his official duties and functions. Unlike the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to legislative and judicial branch, only one constitutes the executive branch and
allege any direct or potential injury which the IBP as an institution or its anything which impairs his usefulness in the discharge of the many great and
members may suffer as a consequence of the issuance of PP No. 1017 and G.O. important duties imposed upon him by the Constitution necessarily impairs the
No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the operation of the Government. However, this does not mean that the President is
mere invocation by the IBP of its duty to preserve the rule of law and nothing not accountable to anyone. Like any other official, he remains accountable to the
more, while undoubtedly true, is not sufficient to clothe it with standing in this people68 but he may be removed from office only in the mode provided by law
case. This is too general an interest which is shared by other groups and the and that is by impeachment.69
whole citizenry. However, in view of the transcendental importance of the issue,
this Court declares that petitioner have locus standi. B. SUBSTANTIVE

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the I. Review of Factual Bases
instant petition as there are no allegations of illegal disbursement of public
funds. The fact that she is a former Senator is of no consequence. She can no Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
longer sue as a legislator on the allegation that her prerogatives as a lawmaker "necessary" for President Arroyo to issue such Proclamation.
have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the
The issue of whether the Court may review the factual bases of the President’s
enforcement of these issuances prevented her from pursuing her occupation. Her
exercise of his Commander-in-Chief power has reached its distilled point - from
submission that she has pending electoral protest before the Presidential
the indulgent days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown
volatile era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v.
that PP 1017 will affect the proceedings or result of her case. But considering
Enrile.74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary satisfy the Court not that the President’s decision is correct," but that "the
authority has been delegated to the legislative or executive branch of the President did not act arbitrarily." Thus, the standard laid down is not
government."75Barcelon and Montenegro were in unison in declaring that correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court
the authority to decide whether an exigency has arisen belongs to the further ruled that "it is incumbent upon the petitioner to show that the
President and his decision is final and conclusive on the courts. Lansang took President’s decision is totally bereft of factual basis" and that if he fails, by
the opposite view. There, the members of the Court were unanimous in the way of proof, to support his assertion, then "this Court cannot undertake an
conviction that the Court has the authority to inquire into the existence of factual independent investigation beyond the pleadings."
bases in order to determine their constitutional sufficiency. From the principle
of separation of powers, it shifted the focus to the system of checks and Petitioners failed to show that President Arroyo’s exercise of the calling-out
balances, "under which the President is supreme, x x x only if and when he power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
acts within the sphere allotted to him by the Basic Law, and the authority to Solicitor General’s Consolidated Comment and Memorandum shows a detailed
determine whether or not he has so acted is vested in the Judicial narration of the events leading to the issuance of PP 1017, with supporting
Department, which in this respect, is, in turn, constitutionally supreme."76 In reports forming part of the records. Mentioned are the escape of the Magdalo
1973, the unanimous Court ofLansang was divided in Aquino v. Enrile.77 There, Group, their audacious threat of the Magdalo D-Day, the defections in the
the Court was almost evenly divided on the issue of whether the validity of the military, particularly in the Philippine Marines, and the reproving statements
imposition of Martial Law is a political or justiciable question.78 Then from the communist leaders. There was also the Minutes of the Intelligence
came Garcia-Padilla v. Enrilewhich greatly diluted Lansang. It declared that Report and Security Group of the Philippine Army showing the growing alliance
there is a need to re-examine the latter case, ratiocinating that "in times of war between the NPA and the military. Petitioners presented nothing to refute such
or national emergency, the President must be given absolute control for the events. Thus, absent any contrary allegations, the Court is convinced that the
very life of the nation and the government is in great peril. The President, it President was justified in issuing PP 1017 calling for military aid.
intoned, is answerable only to his conscience, the People, and God."79
Indeed, judging the seriousness of the incidents, President Arroyo was not
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent expected to simply fold her arms and do nothing to prevent or suppress what she
to these cases at bar -- echoed a principle similar to Lansang. While the Court believed was lawless violence, invasion or rebellion. However, the exercise of
considered the President’s "calling-out" power as a discretionary power solely such power or duty must not stifle liberty.
vested in his wisdom, it stressed that "this does not prevent an examination of
whether such power was exercised within permissible constitutional limits II. Constitutionality of PP 1017 and G.O. No. 5
or whether it was exercised in a manner constituting grave abuse of Doctrines of Several Political Theorists
discretion."This ruling is mainly a result of the Court’s reliance on Section 1, on the Power of the President in Times of Emergency
Article VIII of 1987 Constitution which fortifies the authority of the courts to
determine in an appropriate action the validity of the acts of the political
This case brings to fore a contentious subject -- the power of the President in
departments. Under the new definition of judicial power, the courts are
times of emergency. A glimpse at the various political theories relating to this
authorized not only "to settle actual controversies involving rights which are
subject provides an adequate backdrop for our ensuing discussion.
legally demandable and enforceable," but also "to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the John Locke, describing the architecture of civil government, called upon the
government." The latter part of the authority represents a broadening of judicial English doctrine of prerogative to cope with the problem of emergency. In times
power to enable the courts of justice to review what was before a forbidden of danger to the nation, positive law enacted by the legislature might be
territory, to wit, the discretion of the political departments of the inadequate or even a fatal obstacle to the promptness of action necessary to avert
government.81 It speaks of judicial prerogative not only in terms of power but catastrophe. In these situations, the Crown retained a prerogative "power to act
also of duty.82 according to discretion for the public good, without the proscription of the
law and sometimes even against it."84 But Locke recognized that this moral
restraint might not suffice to avoid abuse of prerogative powers. Who shall
As to how the Court may inquire into the President’s exercise of
judge the need for resorting to the prerogative and how may its abuse be
power, Lansang adopted the test that "judicial inquiry can go no further than to
avoided? Here, Locke readily admitted defeat, suggesting that"the people have Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into
no other remedy in this, as in all other cases where they have no judge on the constitution a regularized system of standby emergency powers to be
earth, but to appeal to Heaven."85 invoked with suitable checks and controls in time of national danger. He
attempted forthrightly to meet the problem of combining a capacious reserve of
Jean-Jacques Rousseau also assumed the need for temporary suspension of power and speed and vigor in its application in time of emergency, with effective
democratic processes of government in time of emergency. According to him: constitutional restraints.90

The inflexibility of the laws, which prevents them from adopting themselves to Contemporary political theorists, addressing themselves to the problem of
circumstances, may, in certain cases, render them disastrous and make them response to emergency by constitutional democracies, have employed the
bring about, at a time of crisis, the ruin of the State… doctrine of constitutional dictatorship.91 Frederick M. Watkins saw "no reason
why absolutism should not be used as a means for the defense of liberal
It is wrong therefore to wish to make political institutions as strong as to render institutions," provided it "serves to protect established institutions from the
it impossible to suspend their operation. Even Sparta allowed its law to lapse... danger of permanent injury in a period of temporary emergency and is
followed by a prompt return to the previous forms of political life."92 He
recognized the two (2) key elements of the problem of emergency governance, as
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to
well as all constitutional governance: increasing administrative powers of the
their preservation, the method is to nominate a supreme lawyer, who shall
executive, while at the same time "imposing limitation upon that
silence all the laws and suspend for a moment the sovereign authority. In such a
power."93 Watkins placed his real faith in a scheme of constitutional
case, there is no doubt about the general will, and it clear that the people’s first
dictatorship. These are the conditions of success of such a dictatorship: "The
intention is that the State shall not perish.86
period of dictatorship must be relatively short…Dictatorship should always
be strictly legitimate in character…Final authority to determine the need
Rosseau did not fear the abuse of the emergency dictatorship or "supreme for dictatorship in any given case must never rest with the dictator
magistracy" as he termed it. For him, it would more likely be cheapened by himself…"94 and the objective of such an emergency dictatorship should be
"indiscreet use." He was unwilling to rely upon an "appeal to heaven." Instead, "strict political conservatism."
he relied upon a tenure of office of prescribed duration to avoid perpetuation of
the dictatorship.87
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a
problem of concentrating power – in a government where power has consciously
John Stuart Mill concluded his ardent defense of representative government: "I been divided – to cope with… situations of unprecedented magnitude and
am far from condemning, in cases of extreme necessity, the assumption of gravity. There must be a broad grant of powers, subject to equally strong
absolute power in the form of a temporary dictatorship."88 limitations as to who shall exercise such powers, when, for how long, and to
what end."96 Friedrich, too, offered criteria for judging the adequacy of any of
Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of emergency powers, to wit: "The emergency executive must be
scheme of limited government, furnished an ironic contrast to the Lockean appointed by constitutional means – i.e., he must be legitimate; he should
theory of prerogative. He recognized and attempted to bridge this chasm in not enjoy power to determine the existence of an emergency; emergency
democratic political theory, thus: powers should be exercised under a strict time limitation; and last, the
objective of emergency action must be the defense of the constitutional
Now, in a well-ordered society, it should never be necessary to resort to extra – order."97
constitutional measures; for although they may for a time be beneficial, yet the
precedent is pernicious, for if the practice is once established for good objects, Clinton L. Rossiter, after surveying the history of the employment of emergency
they will in a little while be disregarded under that pretext but for evil purposes. powers in Great Britain, France, Weimar, Germany and the United States,
Thus, no republic will ever be perfect if she has not by law provided for reverted to a description of a scheme of "constitutional dictatorship" as solution
everything, having a remedy for every emergency and fixed rules for applying to the vexing problems presented by emergency.98 Like Watkins and Friedrich,
it.89 he stated a priori the conditions of success of the "constitutional dictatorship,"
1) No general regime or particular institution of constitutional responsibility for declaring the existence or termination of an emergency, and he
dictatorship should be initiated unless it is necessary or even places great faith in the effectiveness of congressional investigating
indispensable to the preservation of the State and its constitutional committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recent
2) …the decision to institute a constitutional dictatorship should never experience, were one in saying that, "the suggestion that democracies
be in the hands of the man or men who will constitute the dictator… surrender the control of government to an authoritarian ruler in time of
grave danger to the nation is not based upon sound constitutional theory."
3) No government should initiate a constitutional dictatorship without To appraise emergency power in terms of constitutional dictatorship serves
making specific provisions for its termination… merely to distort the problem and hinder realistic analysis. It matters not whether
the term "dictator" is used in its normal sense (as applied to authoritarian rulers)
4) …all uses of emergency powers and all readjustments in the or is employed to embrace all chief executives administering emergency powers.
organization of the government should be effected in pursuit of However used, "constitutional dictatorship" cannot be divorced from the
constitutional or legal requirements… implication of suspension of the processes of constitutionalism. Thus, they
favored instead the "concept of constitutionalism" articulated by Charles H.
5) … no dictatorial institution should be adopted, no right invaded, no
regular procedure altered any more than is absolutely necessary for the
conquest of the particular crisis . . . A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings of this
study, is that formulated by Charles H. McIlwain. While it does not by any
6) The measures adopted in the prosecution of the a constitutional
means necessarily exclude some indeterminate limitations upon the substantive
dictatorship should never be permanent in character or effect…
powers of government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to repose
7) The dictatorship should be carried on by persons representative of adequate power in government. And in discussing the meaning of
every part of the citizenry interested in the defense of the existing constitutionalism, he insisted that the historical and proper test of
constitutional order. . . constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the
8) Ultimate responsibility should be maintained for every action taken enfeebling of government by an exaggerated emphasis upon separation of
under a constitutional dictatorship. . . powers and substantive limitations on governmental power. He found that the
really effective checks on despotism have consisted not in the weakening of
9) The decision to terminate a constitutional dictatorship, like the government but, but rather in the limiting of it; between which there is a great
decision to institute one should never be in the hands of the man or men and very significant difference. In associating constitutionalism with
who constitute the dictator. . . "limited" as distinguished from "weak" government, McIlwain meant
government limited to the orderly procedure of law as opposed to the
10) No constitutional dictatorship should extend beyond the termination processes of force. The two fundamental correlative elements of
of the crisis for which it was instituted… constitutionalism for which all lovers of liberty must yet fight are the legal
limits to arbitrary power and a complete political responsibility of
11) …the termination of the crisis must be followed by a complete government to the governed.101
return as possible to the political and governmental conditions existing
prior to the initiation of the constitutional dictatorship…99 In the final analysis, the various approaches to emergency of the above political
theorists –- from Lock’s "theory of prerogative," to Watkins’ doctrine of
Rossiter accorded to legislature a far greater role in the oversight exercise of "constitutional dictatorship" and, eventually, to McIlwain’s "principle of
emergency powers than did Watkins. He would secure to Congress final constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to
the Chief Executive, while insuring that such powers will be exercised with a It remains a ‘matter of no little difficulty’ to determine when a law may properly
sense of political responsibility and under effective limitations and checks. be held void on its face and when ‘such summary action’ is inappropriate. But
the plain import of our cases is, at the very least, that facial overbreadth
Our Constitution has fairly coped with this problem. Fresh from the fetters of a adjudication is an exception to our traditional rules of practice and that its
repressive regime, the 1986 Constitutional Commission, in drafting the 1987 function, a limited one at the outset, attenuates as the otherwise unprotected
Constitution, endeavored to create a government in the concept of Justice behavior that it forbids the State to sanction moves from ‘pure speech’
Jackson’s "balanced power structure."102 Executive, legislative, and judicial toward conduct and that conduct –even if expressive – falls within the scope
powers are dispersed to the President, the Congress, and the Supreme Court, of otherwise valid criminal laws that reflect legitimate state interests in
respectively. Each is supreme within its own sphere. But none has the maintaining comprehensive controls over harmful, constitutionally
monopoly of power in times of emergency. Each branch is given a role to unprotected conduct.
serve as limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other Thus, claims of facial overbreadth are entertained in cases involving statutes
words, in times of emergency, our Constitution reasonably demands that we which, by their terms, seek to regulate only "spoken words" and again, that
repose a certain amount of faith in the basic integrity and wisdom of the Chief "overbreadth claims, if entertained at all, have been curtailed when invoked
Executive but, at the same time, it obliges him to operate within carefully against ordinary criminal laws that are sought to be applied to protected
prescribed procedural limitations. conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state
a. "Facial Challenge" regulation.

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." Second, facial invalidation of laws is considered as "manifestly strong
They claim that its enforcement encroached on both unprotected and protected medicine," to be used "sparingly and only as a last resort," and is "generally
rights under Section 4, Article III of the Constitution and sent a "chilling effect" disfavored;"107 The reason for this is obvious. Embedded in the traditional rules
to the citizens. governing constitutional adjudication is the principle that a person to whom a
law may be applied will not be heard to challenge a law on the ground that it
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for. may conceivably be applied unconstitutionally to others, i.e., in other situations
not before the Court.108 A writer and scholar in Constitutional Law explains
First and foremost, the overbreadth doctrine is an analytical tool developed for
testing "on their faces" statutes infree speech cases, also known under the
American Law as First Amendment cases.103 The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him
A plain reading of PP 1017 shows that it is not primarily directed to speech or
or her; if the litigant prevails, the courts carve away the unconstitutional
even speech-related conduct. It is actually a call upon the AFP to prevent or
aspects of the law by invalidating its improper applications on a case to case
suppress all forms of lawless violence. In United States v. Salerno,104the US
basis. Moreover, challengers to a law are not permitted to raise the rights of
Supreme Court held that "we have not recognized an ‘overbreadth’ doctrine
third parties and can only assert their own interests. In overbreadth
outside the limited context of the First Amendment" (freedom of speech).
analysis, those rules give way; challenges are permitted to raise the rights of
third parties; and the court invalidates the entire statute "on its face," not merely
Moreover, the overbreadth doctrine is not intended for testing the validity of a "as applied for" so that the overbroad law becomes unenforceable until a
law that "reflects legitimate state interest in maintaining comprehensive control properly authorized court construes it more narrowly. The factor that motivates
over harmful, constitutionally unprotected conduct." Undoubtedly, lawless courts to depart from the normal adjudicatory rules is the concern with the
violence, insurrection and rebellion are considered "harmful" and "chilling;" deterrent effect of the overbroad statute on third parties not
"constitutionally unprotected conduct." InBroadrick v. Oklahoma,105 it was held: courageous enough to bring suit. The Court assumes that an overbroad law’s
"very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is The operative portion of PP 1017 may be divided into three important
designed to remove that deterrent effect on the speech of those third parties. provisions, thus:

In other words, a facial challenge using the overbreadth doctrine will require the First provision:
Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of
its actual operation to petitioners, but on the assumption or prediction that its "by virtue of the power vested upon me by Section 18, Artilce VII … do hereby
very existence may cause others not before the Court to refrain from command the Armed Forces of the Philippines, to maintain law and order
constitutionally protected speech or expression. In Younger v. Harris,109 it was throughout the Philippines, prevent or suppress all forms of lawless violence as
held that: well any act of insurrection or rebellion"

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and Second provision:
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of "and to enforce obedience to all the laws and to all decrees, orders and
the relative remoteness of the controversy, the impact on the legislative regulations promulgated by me personally or upon my direction;"
process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily
Third provision:
results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
"as provided in Section 17, Article XII of the Constitution do hereby declare a
State of National Emergency."
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there
can be no instance when the assailed law may be valid. Here, petitioners did First Provision: Calling-out Power
not even attempt to show whether this situation exists.
The first provision pertains to the President’s calling-out power. In Sanlakas v.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that
This, too, is unwarranted. Section 18, Article VII of the Constitution reproduced as follows:

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which Sec. 18. The President shall be the Commander-in-Chief of all armed forces of
holds that "a law is facially invalid if men of common intelligence must the Philippines and whenever it becomes necessary, he may call out such
necessarily guess at its meaning and differ as to its application."110 It is armed forces to prevent or suppress lawless violence, invasion or rebellion.
subject to the same principles governing overbreadth doctrine. For one, it is also In case of invasion or rebellion, when the public safety requires it, he may, for a
an analytical tool for testing "on their faces" statutes in free speech cases. And period not exceeding sixty days, suspend the privilege of the writ of habeas
like overbreadth, it is said that a litigant may challenge a statute on its face only corpus or place the Philippines or any part thereof under martial law. Within
if it is vague in all its possible applications. Again, petitioners did not even forty-eight hours from the proclamation of martial law or the suspension of the
attempt to show that PP 1017 is vague in all its application. They also failed privilege of the writ of habeas corpus, the President shall submit a report in
to establish that men of common intelligence cannot understand the meaning and person or in writing to the Congress. The Congress, voting jointly, by a vote of at
application of PP 1017. 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
b. Constitutional Basis of PP 1017
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
Now on the constitutional foundation of PP 1017. requires it.
The Congress, if not in session, shall within twenty-four hours following such It is pertinent to state, however, that there is a distinction between the President’s
proclamation or suspension, convene in accordance with its rules without need of authority to declare a "state of rebellion" (in Sanlakas) and the authority to
a call. proclaim a state of national emergency. While President Arroyo’s authority to
declare a "state of rebellion" emanates from her powers as Chief Executive, the
The Supreme Court may review, in an appropriate proceeding filed by any statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the
citizen, the sufficiency of the factual bases of the proclamation of martial law or Revised Administrative Code of 1987, which provides:
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing. SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of which the
A state of martial law does not suspend the operation of the Constitution, nor operation of a specific law or regulation is made to depend, shall be promulgated
supplant the functioning of the civil courts or legislative assemblies, nor in proclamations which shall have the force of an executive order.
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the President Arroyo’s declaration of a "state of rebellion" was merely an act
privilege of the writ. declaring a status or condition of public moment or interest, a declaration
allowed under Section 4 cited above. Such declaration, in the words ofSanlakas,
The suspension of the privilege of the writ shall apply only to persons judicially is harmless, without legal significance, and deemed not written. In these cases,
charged for rebellion or offenses inherent in or directly connected with invasion. PP 1017 is more than that. In declaring a state of national emergency, President
Arroyo did not only rely on Section 18, Article VII of the Constitution, a
During the suspension of the privilege of the writ, any person thus arrested or provision calling on the AFP to prevent or suppress lawless violence, invasion or
detained shall be judicially charged within three days, otherwise he shall be rebellion. She also relied on Section 17, Article XII, a provision on the State’s
released. extraordinary power to take over privately-owned public utility and business
affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless,
grants the President, as Commander-in-Chief, a "sequence" of graduated powers.
without legal significance, or not written, as in the case of Sanlakas.
From the most to the least benign, these are: the calling-out power, the power to
suspend the privilege of the writ of habeas corpus, and the power to declare
Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the Court Some of the petitioners vehemently maintain that PP 1017 is actually a
ruled that the only criterion for the exercise of the calling-out power is that declaration of Martial Law. It is no so. What defines the character of PP 1017 are
"whenever it becomes necessary," the President may call the armed forces "to its wordings. It is plain therein that what the President invoked was her calling-
prevent or suppress lawless violence, invasion or rebellion." Are these out power.
conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue PP The declaration of Martial Law is a "warn[ing] to citizens that the military power
1017. Owing to her Office’s vast intelligence network, she is in the best position has been called upon by the executive to assist in the maintenance of law and
to determine the actual condition of the country. order, and that, while the emergency lasts, they must, upon pain of arrest and
punishment, not commit any acts which will in any way render more difficult the
Under the calling-out power, the President may summon the armed forces to aid restoration of order and the enforcement of law."113
him in suppressing lawless violence, invasion and rebellion. This involves
ordinary police action. But every act that goes beyond the President’s calling-out In his "Statement before the Senate Committee on Justice" on March 13, 2006,
power is considered illegal or ultra vires. For this reason, a President must be Mr. Justice Vicente V. Mendoza,114an authority in constitutional law, said that of
careful in the exercise of his powers. He cannot invoke a greater power when he the three powers of the President as Commander-in-Chief, the power to declare
wishes to act under a lesser power. There lies the wisdom of our Constitution, Martial Law poses the most severe threat to civil liberties. It is a strong medicine
the greater the power, the greater are the limitations. which should not be resorted to lightly. It cannot be used to stifle or persecute
critics of the government. It is placed in the keeping of the President for the
purpose of enabling him to secure the people from harm and to restore order so
that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, Commander-in-Chief of all the armed forces of the country,117 including the
provides: Philippine National Police118 under the Department of Interior and Local
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 Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
authorize the conferment of jurisdiction on military courts and agencies over Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue
civilians where civil courts are able to function, nor automatically suspend the that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power
privilege of the writ. to enact laws and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress. They assail the
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It clause "to enforce obedience to all the laws and to all decrees, orders and
is no more than a call by the President to the armed forces to prevent or suppress regulations promulgated by me personally or upon my direction."
lawless violence. As such, it cannot be used to justify acts that only under a valid
declaration of Martial Law can be done. Its use for any other purpose is a \
perversion of its nature and scope, and any act done contrary to its command
is ultra vires. Petitioners’ contention is understandable. A reading of PP 1017 operative clause
shows that it was lifted120 from Former President Marcos’ Proclamation No.
Justice Mendoza further stated that specifically, (a) arrests and seizures without 1081, which partly reads:
judicial warrants; (b) ban on public assemblies; (c) take-over of news media and
agencies and press censorship; and (d) issuance of Presidential Decrees, are NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
powers which can be exercised by the President as Commander-in- Philippines by virtue of the powers vested upon me by Article VII, Section 10,
Chief only where there is a valid declaration of Martial Law or suspension of the Paragraph (2) of the Constitution, do hereby place the entire Philippines as
writ of habeas corpus. defined in Article 1, Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command the Armed Forces
Based on the above disquisition, it is clear that PP 1017 is not a declaration of of the Philippines, to maintain law and order throughout the Philippines,
Martial Law. It is merely an exercise of President Arroyo’s calling-out prevent or suppress all forms of lawless violence as well as any act of
power for the armed forces to assist her in preventing or suppressing lawless insurrection or rebellion and to enforce obedience to all the laws and
violence. decrees, orders and regulations promulgated by me personally or upon my
Second Provision: "Take Care" Power
We all know that it was PP 1081 which granted President Marcos legislative
The second provision pertains to the power of the President to ensure that the power. Its enabling clause states: "to enforce obedience to all the laws and
laws be faithfully executed. This is based on Section 17, Article VII which reads: decrees, orders and regulations promulgated by me personally or upon my
direction." Upon the other hand, the enabling clause of PP 1017 issued by
SEC. 17. The President shall have control of all the executive departments, President Arroyo is: to enforce obedience to all the laws and to all decrees,
bureaus, and offices. He shall ensure that the laws be faithfully executed. orders and regulations promulgated by me personally or upon my
As the Executive in whom the executive power is vested,115 the primary function
of the President is to enforce the laws as well as to formulate policies to be Is it within the domain of President Arroyo to promulgate "decrees"?
embodied in existing laws. He sees to it that all laws are enforced by the officials
and employees of his department. Before assuming office, he is required to take PP 1017 states in part: "to enforce obedience to all the laws and decrees x x
an oath or affirmation to the effect that as President of the Philippines, he will, x promulgated by me personally or upon my direction."
among others, "execute its laws."116 In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the
The President is granted an Ordinance Power under Chapter 2, Book III of Representatives." To be sure, neither Martial Law nor a state of rebellion nor a
Executive Order No. 292 (Administrative Code of 1987). She may issue any of state of emergency can justify President Arroyo’s exercise of legislative power
the following: by issuing decrees.

Sec. 2. Executive Orders. — Acts of the President providing for rules of a Can President Arroyo enforce obedience to all decrees and laws through the
general or permanent character in implementation or execution of constitutional military?
or statutory powers shall be promulgated in executive orders.
As this Court stated earlier, President Arroyo has no authority to enact decrees. It
Sec. 3. Administrative Orders. — Acts of the President which relate to particular follows that these decrees are void and, therefore, cannot be enforced. With
aspect of governmental operations in pursuance of his duties as administrative respect to "laws," she cannot call the military to enforce or implement certain
head shall be promulgated in administrative orders. laws, such as customs laws, laws governing family and property relations, laws
on obligations and contracts and the like. She can only order the military, under
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.
or condition of public moment or interest, upon the existence of which the
operation of a specific law or regulation is made to depend, shall be promulgated Third Provision: Power to Take Over
in proclamations which shall have the force of an executive order.
The pertinent provision of PP 1017 states:
Sec. 5. Memorandum Orders. — Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only concern x x x and to enforce obedience to all the laws and to all decrees, orders, and
a particular officer or office of the Government shall be embodied in regulations promulgated by me personally or upon my direction; and as
memorandum orders. provided in Section 17, Article XII of the Constitution do hereby declare a
state of national emergency.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to
internal administration, which the President desires to bring to the attention of all The import of this provision is that President Arroyo, during the state of national
or some of the departments, agencies, bureaus or offices of the Government, for emergency under PP 1017, can call the military not only to enforce obedience "to
information or compliance, shall be embodied in memorandum circulars. all the laws and to all decrees x x x" but also to act pursuant to the provision of
Section 17, Article XII which reads:
Sec. 7. General or Special Orders. — Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be Sec. 17. In times of national emergency, when the public interest so requires, the
issued as general or special orders. State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately-owned public
President Arroyo’s ordinance power is limited to the foregoing issuances. She utility or business affected with public interest.
cannot issue decrees similar to those issued by Former President Marcos under
PP 1081. Presidential Decrees are laws which are of the same category and What could be the reason of President Arroyo in invoking the above provision
binding force as statutes because they were issued by the President in the when she issued PP 1017?
exercise of his legislative power during the period of Martial Law under the
1973 Constitution.121 The answer is simple. During the existence of the state of national emergency,
PP 1017 purports to grant the President, without any authority or delegation from
This Court rules that the assailed PP 1017 is unconstitutional insofar as it Congress, to take over or direct the operation of any privately-owned public
grants President Arroyo the authority to promulgate "decrees." Legislative utility or business affected with public interest.
power is peculiarly within the province of the Legislature. Section 1, Article VI
categorically states that "[t]he legislative power shall be vested in the This provision was first introduced in the 1973 Constitution, as a product of the
Congress of the Philippines which shall consist of a Senate and a House of "martial law" thinking of the 1971 Constitutional Convention.122 In effect at the
time of its approval was President Marcos’ Letter of Instruction No. 2 dated But the exercise of emergency powers, such as the taking over of privately
September 22, 1972 instructing the Secretary of National Defense to take over owned public utility or business affected with public interest, is a different
"the management, control and operation of the Manila Electric Company, the matter. This requires a delegation from Congress.
Philippine Long Distance Telephone Company, the National Waterworks and
Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Courts have often said that constitutional provisions in pari materia are to be
Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by construed together. Otherwise stated, different clauses, sections, and provisions
the Government of its effort to contain, solve and end the present national of a constitution which relate to the same subject matter will be construed
emergency." together and considered in the light of each other.123 Considering that Section 17
of Article XII and Section 23 of Article VI, previously quoted, relate to national
Petitioners, particularly the members of the House of Representatives, claim that emergencies, they must be read together to determine the limitation of the
President Arroyo’s inclusion of Section 17, Article XII in PP 1017 is an exercise of emergency powers.
encroachment on the legislature’s emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in
This is an area that needs delineation. the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to
the President. Certainly, a body cannot delegate a power not reposed upon
A distinction must be drawn between the President’s authority to declare "a state it. However, knowing that during grave emergencies, it may not be possible or
of national emergency" and toexercise emergency powers. To the first, as practicable for Congress to meet and exercise its powers, the Framers of our
elucidated by the Court, Section 18, Article VII grants the President such power, Constitution deemed it wise to allow Congress to grant emergency powers to the
hence, no legitimate constitutional objection can be raised. But to the second, President, subject to certain conditions, thus:
manifold constitutional issues arise.
(1) There must be a war or other emergency.
Section 23, Article VI of the Constitution reads:
(2) The delegation must be for a limited period only.
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to declare the (3) The delegation must be subject to such restrictions as the
existence of a state of war. Congress may prescribe.

(2) In times of war or other national emergency, the Congress may, by law, (4) The emergency powers must be exercised to carry out a national
authorize the President, for a limited period and subject to such restrictions as it policy declared by Congress.124
may prescribe, to exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the Congress, such Section 17, Article XII must be understood as an aspect of the emergency
powers shall cease upon the next adjournment thereof. powers clause. The taking over of private business affected with public interest
is just another facet of the emergency powers generally reposed upon Congress.
It may be pointed out that the second paragraph of the above provision refers not Thus, when Section 17 states that the "the State may, during the emergency
only to war but also to "other national emergency." If the intention of the and under reasonable terms prescribed by it, temporarily take over or
Framers of our Constitution was to withhold from the President the authority to direct the operation of any privately owned public utility or business
declare a "state of national emergency" pursuant to Section 18, Article VII affected with public interest," it refers to Congress, not the President. Now,
(calling-out power) and grant it to Congress (like the declaration of the existence whether or not the President may exercise such power is dependent on whether
of a state of war), then the Framers could have provided so. Clearly, they did not Congress may delegate it to him pursuant to a law prescribing the reasonable
intend that Congress should first authorize the President before he can declare a terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125held:
"state of national emergency." The logical conclusion then is that President
Arroyo could validly declare the existence of a state of national emergency even It is clear that if the President had authority to issue the order he did, it must be
in the absence of a Congressional enactment. found in some provision of the Constitution. And it is not claimed that express
constitutional language grants this power to the President. The contention is that other similar catastrophe of nationwide proportions or effect.131This is evident in
presidential power should be implied from the aggregate of his powers under the the Records of the Constitutional Commission, thus:
Constitution. Particular reliance is placed on provisions in Article II which say
that "The executive Power shall be vested in a President . . . .;" that "he shall take MR. GASCON. Yes. What is the Committee’s definition of "national
Care that the Laws be faithfully executed;" and that he "shall be Commander-in- emergency" which appears in Section 13, page 5? It reads:
Chief of the Army and Navy of the United States.
When the common good so requires, the State may temporarily take over or
The order cannot properly be sustained as an exercise of the President’s military direct the operation of any privately owned public utility or business affected
power as Commander-in-Chief of the Armed Forces. The Government attempts with public interest.
to do so by citing a number of cases upholding broad powers in military
commanders engaged in day-to-day fighting in a theater of war. Such cases need MR. VILLEGAS. What I mean is threat from external aggression, for
not concern us here.Even though "theater of war" be an expanding concept, example, calamities or natural disasters.
we cannot with faithfulness to our constitutional system hold that the
Commander-in-Chief of the Armed Forces has the ultimate power as such
MR. GASCON. There is a question by Commissioner de los Reyes. What about
to take possession of private property in order to keep labor disputes from
strikes and riots?
stopping production. This is a job for the nation’s lawmakers, not for its
military authorities.
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of
our Constitution, the President’s power to see that the laws are faithfully MR. BENGZON. Unless they are of such proportions such that they would
executed refutes the idea that he is to be a lawmaker. The Constitution paralyze government service.132
limits his functions in the lawmaking process to the recommending of laws
he thinks wise and the vetoing of laws he thinks bad. And the Constitution is xxxxxx
neither silent nor equivocal about who shall make laws which the President
is to execute. The first section of the first article says that "All legislative MR. TINGSON. May I ask the committee if "national emergency" refers
Powers herein granted shall be vested in a Congress of the United States. . to military national emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under
Section 17, Article XII refers to "tsunami," "typhoon," "hurricane"and"similar MR. TINGSON. Thank you very much.133
occurrences." This is a limited view of "emergency."
It may be argued that when there is national emergency, Congress may not be
Emergency, as a generic term, connotes the existence of conditions suddenly able to convene and, therefore, unable to delegate to the President the power to
intensifying the degree of existing danger to life or well-being beyond that which take over privately-owned public utility or business affected with public interest.
is accepted as normal. Implicit in this definitions are the elements of intensity,
variety, and perception.127 Emergencies, as perceived by legislature or executive In Araneta v. Dinglasan,134 this Court emphasized that legislative power,
in the United Sates since 1933, have been occasioned by a wide range of through which extraordinary measures are exercised, remains in Congress even
situations, classifiable under three (3) principal heads: a)economic,128 b) natural in times of crisis.
disaster,129 and c) national security.130
"x x x
"Emergency," as contemplated in our Constitution, is of the same breadth. It may
include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or
After all the criticisms that have been made against the efficiency of the system speech, of expression, of the press, and of assembly under the Bill of Rights
of the separation of powers, the fact remains that the Constitution has set up this suffered the greatest blow.
form of government, with all its defects and shortcomings, in preference to the
commingling of powers in one man or group of men. The Filipino people by Of the seven (7) petitions, three (3) indicate "direct injury."
adopting parliamentary government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its faults, as the ideal. In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24,
The point is, under this framework of government, legislation is preserved for 2006, they were arrested without warrants on their way to EDSA to celebrate the
Congress all the time, not excepting periods of crisis no matter how serious. 20th Anniversary of People Power I. The arresting officers cited PP 1017 as
Never in the history of the United States, the basic features of whose basis of the arrest.
Constitution have been copied in ours, have specific functions of the legislative
branch of enacting laws been surrendered to another department – unless we
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co.,
regard as legislating the carrying out of a legislative policy according to
Inc. claimed that on February 25, 2006, the CIDG operatives "raided and
prescribed standards; no, not even when that Republic was fighting a total war,
ransacked without warrant" their office. Three policemen were assigned to guard
or when it was engaged in a life-and-death struggle to preserve the Union. The
their office as a possible "source of destabilization." Again, the basis was PP
truth is that under our concept of constitutional government, in times of extreme
perils more than in normal circumstances ‘the various branches, executive,
legislative, and judicial,’ given the ability to act, are called upon ‘to perform the
duties and discharge the responsibilities committed to them respectively." And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that
their members were "turned away and dispersed" when they went to EDSA and
later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
Following our interpretation of Section 17, Article XII, invoked by President
Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
authorize her during the emergency to temporarily take over or direct the A perusal of the "direct injuries" allegedly suffered by the said petitioners shows
operation of any privately owned public utility or business affected with public that they resulted from theimplementation, pursuant to G.O. No. 5, of PP 1017.
interest without authority from Congress.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis
Let it be emphasized that while the President alone can declare a state of national of these illegal acts? In general,does the illegal implementation of a law render it
emergency, however, without legislation, he has no power to take over privately- unconstitutional?
owned public utility or business affected with public interest. The President
cannot decide whether exceptional circumstances exist warranting the take over Settled is the rule that courts are not at liberty to declare statutes
of privately-owned public utility or business affected with public interest. Nor invalid although they may be abused and misabused135 and may afford an
can he determine when such exceptional circumstances have ceased. opportunity for abuse in the manner of application.136 The validity of a
Likewise, without legislation, the President has no power to point out the types statute or ordinance is to be determined from its general purpose and its
of businesses affected with public interest that should be taken over. In short, the efficiency to accomplish the end desired,not from its effects in a particular
President has no absolute authority to exercise all the powers of the State under case.137 PP 1017 is merely an invocation of the President’s calling-out power. Its
Section 17, Article VII in the absence of an emergency powers act passed by general purpose is to command the AFP to suppress all forms of lawless
Congress. violence, invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017
c. "AS APPLIED CHALLENGE" allowing the police, expressly or impliedly, to conduct illegal arrest, search or
violate the citizens’ constitutional rights.
One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the individual are Now, may this Court adjudge a law or ordinance unconstitutional on the ground
often not compatible. Our history reveals that in the crucible of conflict, many that its implementor committed illegal acts? The answer is no. The criterion by
rights are curtailed and trampled upon. Here, the right against unreasonable which the validity of the statute or ordinance is to be measured is the essential
search and seizure; the right against warrantless arrest; and the freedom of basis for the exercise of power, and not a mere incidental result arising from
its exertion.138This is logical. Just imagine the absurdity of situations when laws Remarkable confusion persists in regard to the legal categorization of acts of
maybe declared unconstitutional just because the officers implementing them violence either by states, by armed groups such as liberation movements, or by
have acted arbitrarily. If this were so, judging from the blunders committed by individuals.
policemen in the cases passed upon by the Court, majority of the provisions of
the Revised Penal Code would have been declared unconstitutional a long time The dilemma can by summarized in the saying "One country’s terrorist is
ago. another country’s freedom fighter." The apparent contradiction or lack of
consistency in the use of the term "terrorism" may further be demonstrated by
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP the historical fact that leaders of national liberation movements such as Nelson
1017. General orders are "acts and commands of the President in his capacity as Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in
Commander-in-Chief of the Armed Forces of the Philippines." They are internal Algeria, to mention only a few, were originally labeled as terrorists by those who
rules issued by the executive officer to his subordinates precisely for controlled the territory at the time, but later became internationally respected
the proper and efficientadministration of law. Such rules and regulations statesmen.
create no relation except between the official who issues them and the official
who receives them.139 They are based on and are the product of, a relationship in What, then, is the defining criterion for terrorist acts – the differentia
which power is their source, and obedience, their object.140 For these reasons, specifica distinguishing those acts from eventually legitimate acts of national
one requirement for these rules to be valid is that they must be reasonable, not resistance or self-defense?
arbitrary or capricious.
Since the times of the Cold War the United Nations Organization has been trying
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the in vain to reach a consensus on the basic issue of definition. The organization
"necessary and appropriate actions and measures to suppress and prevent has intensified its efforts recently, but has been unable to bridge the gap between
acts of terrorism and lawless violence." those who associate "terrorism" with any violent act by non-state groups against
civilians, state functionaries or infrastructure or military installations, and those
Unlike the term "lawless violence" which is unarguably extant in our statutes and who believe in the concept of the legitimate use of force when resistance against
the Constitution, and which is invariably associated with "invasion, insurrection foreign occupation or against systematic oppression of ethnic and/or religious
or rebellion," the phrase "acts of terrorism" is still an amorphous and vague groups within a state is concerned.
concept. Congress has yet to enact a law defining and punishing acts of
terrorism. The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and movements
In fact, this "definitional predicament" or the "absence of an agreed definition of such as Palestine Liberation Organization (PLO) – which is a terrorist group for
terrorism" confronts not only our country, but the international community as Israel and a liberation movement for Arabs and Muslims – the Kashmiri
well. The following observations are quite apropos: resistance groups – who are terrorists in the perception of India, liberation
fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters
In the actual unipolar context of international relations, the "fight against for the United States, terrorists for the Socialist camp – or, most drastically, the
terrorism" has become one of the basic slogans when it comes to the justification Afghani Mujahedeen (later to become the Taliban movement): during the Cold
of the use of force against certain states and against groups operating War period they were a group of freedom fighters for the West, nurtured by the
internationally. Lists of states "sponsoring terrorism" and of terrorist United States, and a terrorist gang for the Soviet Union. One could go on and on
organizations are set up and constantly being updated according to criteria that in enumerating examples of conflicting categorizations that cannot be reconciled
are not always known to the public, but are clearly determined by strategic in any way – because of opposing political interests that are at the roots of those
interests. perceptions.

The basic problem underlying all these military actions – or threats of the use of How, then, can those contradicting definitions and conflicting perceptions and
force as the most recent by the United States against Iraq – consists in the evaluations of one and the same group and its actions be explained? In our
absence of an agreed definition of terrorism. analysis, the basic reason for these striking inconsistencies lies in the divergent
interest of states. Depending on whether a state is in the position of an occupying who has the discretion to determine what acts constitute terrorism. Her judgment
power or in that of a rival, or adversary, of an occupying power in a given on this aspect is absolute, without restrictions. Consequently, there can be
territory, the definition of terrorism will "fluctuate" accordingly. A state may indiscriminate arrest without warrants, breaking into offices and residences,
eventually see itself as protector of the rights of a certain ethnic group outside its taking over the media enterprises, prohibition and dispersal of all assemblies and
territory and will therefore speak of a "liberation struggle," not of "terrorism" gatherings unfriendly to the administration. All these can be effected in the name
when acts of violence by this group are concerned, and vice-versa. of G.O. No. 5. These acts go far beyond the calling-out power of the President.
Certainly, they violate the due process clause of the Constitution. Thus, this
The United Nations Organization has been unable to reach a decision on the Court declares that the "acts of terrorism" portion of G.O. No. 5 is
definition of terrorism exactly because of these conflicting interests of sovereign unconstitutional.
states that determine in each and every instance how a particular armed
movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom Significantly, there is nothing in G.O. No. 5 authorizing the military or police to
fighter dichotomy. A "policy of double standards" on this vital issue of commit acts beyond what arenecessary and appropriate to suppress and
international affairs has been the unavoidable consequence. prevent lawless violence, the limitation of their authority in pursuing the Order.
Otherwise, such acts are considered illegal.
This "definitional predicament" of an organization consisting of sovereign states
– and not of peoples, in spite of the emphasis in the Preamble to the United We first examine G.R. No. 171396 (David et al.)
Nations Charter! – has become even more serious in the present global power
constellation: one superpower exercises the decisive role in the Security Council, The Constitution provides that "the right of the people to be secured in their
former great powers of the Cold War era as well as medium powers are persons, houses, papers and effects against unreasonable search and seizure of
increasingly being marginalized; and the problem has become even more acute whatever nature and for any purpose shall be inviolable, and no search warrant
since the terrorist attacks of 11 September 2001 I the United States.141 or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
The absence of a law defining "acts of terrorism" may result in abuse and complainant and the witnesses he may produce, and particularly describing the
oppression on the part of the police or military. An illustration is when a group place to be searched and the persons or things to be seized."142 The plain import
of persons are merely engaged in a drinking spree. Yet the military or the police of the language of the Constitution is that searches, seizures and arrests
may consider the act as an act of terrorism and immediately arrest them pursuant are normally unreasonable unless authorized by a validly issued search warrant
to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be or warrant of arrest. Thus, the fundamental protection given by this provision is
remembered that an act can only be considered a crime if there is a law defining that between person and police must stand the protective authority of a
the same as such and imposing the corresponding penalty thereon. magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.143
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D.
No. 1835 dated January 16, 1981 enacted by President Marcos during the Martial In the Brief Account144 submitted by petitioner David, certain facts are
Law regime. This decree is entitled "Codifying The Various Laws on Anti- established: first, he was arrested without warrant; second, the PNP operatives
Subversion and Increasing The Penalties for Membership in Subversive arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Organizations." The word "terrorism" is mentioned in the following provision: Quezon City where he was fingerprinted, photographed and booked like a
"That one who conspires with any other person for the purpose of overthrowing criminal suspect; fourth,he was treated brusquely by policemen who "held his
the Government of the Philippines x x x by force, violence, terrorism, x x x head and tried to push him" inside an unmarked car; fifth, he was charged with
shall be punished byreclusion temporal x x x." Violation of Batas Pambansa Bilang No. 880145 and Inciting to
Sedition; sixth, he was detained for seven (7) hours; and seventh,he was
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist eventually released for insufficiency of evidence.
Party of the Philippines) enacted by President Corazon Aquino on May 5, 1985.
These two (2) laws, however, do not define "acts of terrorism." Since there is no Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
law defining "acts of terrorism," it is President Arroyo alone, under G.O. No. 5,
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private authorization from the government authorities except, of course, if the assembly
person may, without a warrant, arrest a person: is intended to be held in a public place, a permit for the use of such place, and
not for the assembly itself, may be validly required.
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense. The ringing truth here is that petitioner David, et al. were arrested while they
were exercising their right to peaceful assembly. They were not committing any
(b) When an offense has just been committed and he has probable cause crime, neither was there a showing of a clear and present danger that warranted
to believe based on personal knowledge of facts or circumstances that the limitation of that right. As can be gleaned from circumstances, the charges
the person to be arrested has committed it; and of inciting to seditionand violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the arresting
x x x. officers’ conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly
cannot be made a crime, thus:
Neither of the two (2) exceptions mentioned above justifies petitioner David’s
warrantless arrest. During the inquest for the charges of inciting to Peaceable assembly for lawful discussion cannot be made a crime. The holding
sedition and violation of BP 880, all that the arresting officers could invoke was of meetings for peaceable political action cannot be proscribed. Those who assist
their observation that some rallyists were wearing t-shirts with the in the conduct of such meetings cannot be branded as criminals on that score.
invective "Oust Gloria Now" and their erroneous assumption that petitioner The question, if the rights of free speech and peaceful assembly are not to be
David was the leader of the rally.146 Consequently, the Inquest Prosecutor preserved, is not as to the auspices under which the meeting was held but as to
ordered his immediate release on the ground of insufficiency of evidence. He its purpose; not as to the relations of the speakers, but whether their utterances
noted that petitioner David was not wearing the subject t-shirt and even if he was transcend the bounds of the freedom of speech which the Constitution protects.
wearing it, such fact is insufficient to charge him with inciting to sedition. If the persons assembling have committed crimes elsewhere, if they have formed
Further, he also stated that there is insufficient evidence for the charge or are engaged in a conspiracy against the public peace and order, they may be
of violation of BP 880 as it was not even known whether petitioner David was prosecuted for their conspiracy or other violations of valid laws.But it is a
the leader of the rally.147 different matter when the State, instead of prosecuting them for such
offenses, seizes upon mere participation in a peaceable assembly and a
lawful public discussion as the basis for a criminal charge.
But what made it doubly worse for petitioners David et al. is that not only was
their right against warrantless arrest violated, but also their right to peaceably
assemble. On the basis of the above principles, the Court likewise considers the dispersal
and arrest of the members of KMUet al. (G.R. No. 171483) unwarranted.
Apparently, their dispersal was done merely on the basis of Malacañang’s
Section 4 of Article III guarantees:
directive canceling all permits previously issued by local government units. This
is arbitrary. The wholesale cancellation of all permits to rally is a blatant
No law shall be passed abridging the freedom of speech, of expression, or of the disregard of the principle that "freedom of assembly is not to be limited, much
press, or the right of the people peaceably to assemble and petition the less denied, except on a showing of a clear and present danger of a
government for redress of grievances. substantive evil that the State has a right to prevent."149 Tolerance is the rule
and limitation is the exception. Only upon a showing that an assembly presents a
"Assembly" means a right on the part of the citizens to meet peaceably for clear and present danger that the State may deny the citizens’ right to exercise it.
consultation in respect to public affairs. It is a necessary consequence of our Indeed, respondents failed to show or convince the Court that the rallyists
republican institution and complements the right of speech. As in the case of committed acts amounting to lawless violence, invasion or rebellion. With the
freedom of expression, this right is not to be limited, much less denied, except on blanket revocation of permits, the distinction between protected and unprotected
a showing of a clear and present danger of a substantive evil that Congress has assemblies was eliminated.
a right to prevent. In other words, like other rights embraced in the freedom of
expression, the right to assemble is not subject to previous restraint or Moreover, under BP 880, the authority to regulate assemblies and rallies is
censorship. It may not be conditioned upon the prior issuance of a permit or lodged with the local government units. They have the power to issue permits
and to revoke such permits after due notice and hearing on the determination that it be served at any time of the day or night. All these rules were violated by
of the presence of clear and present danger. Here, petitioners were not even the CIDG operatives.
notified and heard on the revocation of their permits.150 The first time they
learned of it was at the time of the dispersal. Such absence of notice is a fatal Not only that, the search violated petitioners’ freedom of the press. The best
defect. When a person’s right is restricted by government action, it behooves a gauge of a free and democratic society rests in the degree of freedom enjoyed by
democratic government to see to it that the restriction is fair, reasonable, and its media. In the Burgos v. Chief of Staff152 this Court held that --
according to procedure.
As heretofore stated, the premises searched were the business and printing
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a
speech i.e., the freedom of the press. Petitioners’ narration of facts, which the consequence of the search and seizure, these premises were padlocked and
Solicitor General failed to refute, established the following: first, theDaily sealed, with the further result that the printing and publication of said
Tribune’s offices were searched without warrant;second, the police operatives newspapers were discontinued.
seized several materials for publication; third, the search was conducted at about
1:00 o’ clock in the morning of February 25, 2006; fourth,the search was Such closure is in the nature of previous restraint or censorship abhorrent
conducted in the absence of any official of the Daily Tribune except the security to the freedom of the press guaranteed under the fundamental law, and
guard of the building; and fifth, policemen stationed themselves at the vicinity of constitutes a virtual denial of petitioners' freedom to express themselves in
the Daily Tribune offices. print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political
Thereafter, a wave of warning came from government officials. Presidential enlightenment and growth of the citizenry.
Chief of Staff Michael Defensor was quoted as saying that such raid
was "meant to show a ‘strong presence,’ to tell media outlets not to connive While admittedly, the Daily Tribune was not padlocked and sealed like the
or do anything that would help the rebels in bringing down this "Metropolitan Mail" and "We Forum" newspapers in the above case, yet it
government." Director General Lomibao further stated that "if they do not cannot be denied that the CIDG operatives exceeded their enforcement duties.
follow the standards –and the standards are if they would contribute to The search and seizure of materials for publication, the stationing of policemen
instability in the government, or if they do not subscribe to what is in in the vicinity of the The Daily Tribune offices, and the arrogant warning of
General Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’" government officials to media, are plain censorship. It is that officious
National Telecommunications Commissioner Ronald Solis urged television and functionary of the repressive government who tells the citizen that he may speak
radio networks to "cooperate" with the government for the duration of the state only if allowed to do so, and no more and no less than what he is permitted to
of national emergency. He warned that his agency will not hesitate to say on pain of punishment should he be so rash as to disobey.153 Undoubtedly,
recommend the closure of any broadcast outfit that violates rules set out for the The Daily Tribune was subjected to these arbitrary intrusions because of its
media coverage during times when the national security is threatened.151 anti-government sentiments. This Court cannot tolerate the blatant disregard of a
constitutional right even if it involves the most defiant of our citizens. Freedom
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays to comment on public affairs is essential to the vitality of a representative
down the steps in the conduct of search and seizure. Section 4 requires that democracy. It is the duty of the courts to be watchful for the constitutional rights
a search warrant be issued upon probable cause in connection with one specific of the citizen, and against any stealthy encroachments thereon. The motto should
offence to be determined personally by the judge after examination under oath or always be obsta principiis.154
affirmation of the complainant and the witnesses he may produce. Section
8 mandates that the search of a house, room, or any other premise be made in the Incidentally, during the oral arguments, the Solicitor General admitted that the
presence of the lawful occupant thereof or any member of his family or in the search of the Tribune’s offices and the seizure of its materials for publication and
absence of the latter, in the presence of two (2) witnesses of sufficient age and other papers are illegal; and that the same are inadmissible "for any purpose,"
discretion residing in the same locality. And Section 9 states that the warrant thus:
must direct that it be served in the daytime, unless the property is on the person
or in the place ordered to be searched, in which case a direction may be inserted
You made quite a mouthful of admission when you said that the policemen, SR. ASSO. JUSTICE PUNO:
when inspected the Tribune for the purpose of gathering evidence and you
admitted that the policemen were able to get the clippings. Is that not in So, it has no basis, no legal basis whatsoever?
admission of the admissibility of these clippings that were taken from the

SOLICITOR GENERAL BENIPAYO: Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is
premature to say this, we do not condone this. If the people who have been
Under the law they would seem to be, if they were illegally seized, I think and I injured by this would want to sue them, they can sue and there are remedies
know, Your Honor, and these are inadmissible for any purpose.155 for this.156

xxxxxxxxx Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
These have been published in the past issues of the Daily Tribune; all you have
to do is to get those past issues. So why do you have to go there at 1 o’clock in There seems to be some confusions if not contradiction in your theory.
the morning and without any search warrant? Did they become suddenly part of
the evidence of rebellion or inciting to sedition or what? SOLICITOR GENERAL BENIPAYO:

SOLGEN BENIPAYO: I don’t know whether this will clarify. The acts, the supposed illegal or unlawful
acts committed on the occasion of 1017, as I said, it cannot be condoned. You
Well, it was the police that did that, Your Honor. Not upon my instructions. cannot blame the President for, as you said, a misapplication of the law. These
are acts of the police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in
Are you saying that the act of the policeman is illegal, it is not based on any law, every aspect and "should result in no constitutional or statutory breaches if
and it is not based on Proclamation 1017. applied according to their letter."

SOLGEN BENIPAYO: The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to reiterate
It is not based on Proclamation 1017, Your Honor, because there is nothing in that PP 1017 is limited to the calling out by the President of the military to
1017 which says that the police could go and inspect and gather clippings from prevent or suppress lawless violence, invasion or rebellion. When in
Daily Tribune or any other newspaper. implementing its provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizens’ rights under the Constitution, this
SR. ASSO. JUSTICE PUNO: Court has to declare such acts unconstitutional and illegal.

Is it based on any law? In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion,
attached hereto, is considered an integral part of this ponencia.

As far as I know, no, Your Honor, from the facts, no.

SUMMATION are not authorized by the Constitution, the law and jurisprudence. Not even by
the valid provisions of PP 1017 and G.O. No. 5.
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening
event – would have normally rendered this case moot and academic. However, Other than this declaration of invalidity, this Court cannot impose any civil,
while PP 1017 was still operative, illegal acts were committed allegedly in criminal or administrative sanctions on the individual police officers concerned.
pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to They have not been individually identified and given their day in court. The civil
it, may not again be issued. Already, there have been media reports on April 30, complaints or causes of action and/or relevant criminal Informations have not
2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies" become been presented before this Court. Elementary due process bars this Court from
"unruly and violent." Consequently, the transcendental issues raised by the making any specific pronouncement of civil, criminal or administrative
parties should not be "evaded;" they must now be resolved to prevent future liabilities.
constitutional aberration.
It is well to remember that military power is a means to an end and
The Court finds and so holds that PP 1017 is constitutional insofar as it substantive civil rights are ends in themselves. How to give the military the
constitutes a call by the President for the AFP to prevent or suppress lawless power it needs to protect the Republic without unnecessarily trampling
violence. The proclamation is sustained by Section 18, Article VII of the individual rights is one of the eternal balancing tasks of a democratic
Constitution and the relevant jurisprudence discussed earlier. However, PP state.During emergency, governmental action may vary in breadth and intensity
1017’s extraneous provisions giving the President express or implied power (1) from normal times, yet they should not be arbitrary as to unduly restrain our
to issue decrees; (2) to direct the AFP to enforce obedience to all lawseven those people’s liberty.
not related to lawless violence as well as decrees promulgated by the President;
and (3) to impose standards on media or any form of prior restraint on the press, Perhaps, the vital lesson that we must learn from the theorists who studied the
are ultra vires and unconstitutional. The Court also rules that under Section 17, various competing political philosophies is that, it is possible to grant
Article XII of the Constitution, the President, in the absence of a legislation, government the authority to cope with crises without surrendering the two vital
cannot take over privately-owned public utility and private business affected principles of constitutionalism: the maintenance of legal limits to arbitrary
with public interest. power, and political responsibility of the government to the governed.158

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
President – acting as Commander-in-Chief – addressed to subalterns in the AFP is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
to carry out the provisions of PP 1017. Significantly, it also provides a valid Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
standard – that the military and the police should take only the "necessary and However, the provisions of PP 1017 commanding the AFP to enforce laws not
appropriate actions and measures to suppress and prevent acts of lawless related to lawless violence, as well as decrees promulgated by the President, are
violence."But the words "acts of terrorism" found in G.O. No. 5 have not been declared UNCONSTITUTIONAL. In addition, the provision in PP 1017
legally defined and made punishable by Congress and should thus be deemed declaring national emergency under Section 17, Article VII of the Constitution
deleted from the said G.O. While "terrorism" has been denounced generally in is CONSTITUTIONAL, but such declaration does not authorize the President
media, no law has been enacted to guide the military, and eventually the courts, to take over privately-owned public utility or business affected with public
to determine the limits of the AFP’s authority in carrying out this portion of G.O. interest without prior legislation.
No. 5.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the
On the basis of the relevant and uncontested facts narrated earlier, it is also AFP and the PNP should implement PP 1017, i.e. whatever is "necessary and
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and appropriate actions and measures to suppress and prevent acts of lawless
Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU violence." Considering that "acts of terrorism" have not yet been defined and
and NAFLU-KMU members; (3) the imposition of standards on media or any made punishable by the Legislature, such portion of G.O. No. 5 is
prior restraint on the press; and (4) the warrantless search of the Tribune offices declared UNCONSTITUTIONAL.
and the whimsical seizures of some articles for publication and other materials,
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies,
in the absence of proof that these petitioners were committing acts constituting
lawless violence, invasion or rebellion and violating BP 880; the imposition of
standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles for
publication and other materials, are declared UNCONSTITUTIONAL.

No costs.


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

Sec. 1. Even if allowed by law or by the ordinary functions of

his position, a member of the Cabinet, undersecretary or
G.R. No. 83896 February 22, 1991 assistant secretary or other appointive officials of the Executive
Department may, in addition to his primary position, hold not
more than two positions in the government and government
corporations and receive the corresponding compensation
therefor; Provided, that this limitation shall not apply to ad hoc
bodies or committees, or to boards, councils or bodies of which
the President is the Chairman.
G.R. No. 83815 February 22, 1991
Sec. 2. If a member of the cabinet, undersecretary or assistant
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. secretary or other appointive official of the Executive
REYES, petitioners, Department holds more positions than what is allowed in
vs. Section 1 hereof, they (sic) must relinquish the excess position
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS in favor of the subordinate official who is next in rank, but in
DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as no case shall any official hold more than two positions other
Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, than his primary position.
JR., as Secretary of Environment and Natural Resources; VICENTE V.
JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of
Sec. 3. In order to fully protect the interest of the government in
Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment;
government-owned or controlled corporations, at least one-third
LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as
(1/3) of the members of the boards of such corporation should
Secretary of National Defense; TEODORO F. BENIGNO, as Press
either be a secretary, or undersecretary, or assistant secretary.
Secretary; JUANITO FERRER, as Secretary of Public Works and
Highways; ANTONIO ARRIZABAL, as Secretary of Science and
Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; Petitioners maintain that this Executive Order which, in effect, allows members
JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. of the Cabinet, their undersecretaries and assistant secretaries to hold other
BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of government offices or positions in addition to their primary positions, albeit
Transportation and Communication; GUILLERMO CARAGUE, as subject to the limitation therein imposed, runs counter to Section 13, Article VII
Commissioner of the Budget; and SOLITA MONSOD, as Head of the of the 1987 Constitution, 2 which provides as follows:
National Economic Development Authority, respondents.
Sec. 13. The President, Vice-President, the Members of the
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for Cabinet, and their deputies or assistants shall not, unless
petitioners in 83896. otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said
tenure, directly or indirectly practice any other profession,
Antonio P. Coronel for petitioners in 83815.
participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted
FERNAN, C.J.:p by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or are the leaders of government expected to lead by example." 7 Article IX-B,
controlled corporations or their subsidiaries. They shall strictly Section 7, par. (2) 8 provides:
avoid conflict of interest in the conduct of their office.
Sec. 7. . . . . .
It is alleged that the above-quoted Section 13, Article VII prohibits public
respondents, as members of the Cabinet, along with the other public officials Unless otherwise allowed by law or by the primary functions of
enumerated in the list attached to the petitions as Annex "C" in G.R. No. his position, no appointive official shall hold any other office or
83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment in the government or any subdivision, agency or
employment during their tenure. In addition to seeking a declaration of the instrumentality thereof, including government-owned or
unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of controlled corporations or their subsidiaries.
the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary
writs of prohibition andmandamus, as well as a temporary restraining order The Solicitor General counters that Department of Justice DOJ Opinion No. 73,
directing public respondents therein to cease and desist from holding, in addition series of 1987, as further elucidated and clarified by DOJ Opinion No. 129,
to their primary positions, dual or multiple positions other than those authorized series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10being the first
by the 1987 Constitution and from receiving any salaries, allowances, per diems official construction and interpretation by the Secretary of Justice of Section 13,
and other forms of privileges and the like appurtenant to their questioned Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving
positions, and compelling public respondents to return, reimburse or refund any the same subject of appointments or designations of an appointive executive
and all amounts or benefits that they may have received from such positions. official to positions other than his primary position, is "reasonably valid and
constitutionally firm," and that Executive Order No. 284, promulgated pursuant
Specifically, petitioner Anti-Graft League of the Philippines charges that to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth
notwithstanding the aforequoted "absolute and self-executing" provision of the noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155,
1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing Section series of 1988 construed the limitation imposed by E.O. No. 284 as not applying
13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July to ex-officio positions or to positions which, although not so designated as ex-
23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet members, their officio are allowed by the primary functions of the public official, but only to the
deputies (undersecretaries) and assistant secretaries may hold other public office, holding of multiple positions which are not related to or necessarily included in
including membership in the boards of government corporations: (a) when the position of the public official concerned (disparate positions).
directly provided for in the Constitution as in the case of the Secretary of Justice
who is made an ex-officio member of the Judicial and Bar Council under Section In sum, the constitutionality of Executive Order No. 284 is being challenged by
8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the petitioners on the principal submission that it adds exceptions to Section 13,
primary functions of their respective positions; and that on the basis of this Article VII other than those provided in the Constitution. According to
Opinion, the President of the Philippines, on July 25, 1987 or two (2) days petitioners, by virtue of the phrase "unless otherwise provided in this
before Congress convened on July 27, 1987: promulgated Executive Order No. Constitution," the only exceptions against holding any other office or
284. 6 employment in Government are those provided in the Constitution, namely: (1)
The Vice-President may be appointed as a Member of the Cabinet under Section
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-
73 and Executive Order No. 284 as they allegedly "lumped together" Section 13, officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article
Article VII and the general provision in another article, Section 7, par. (2), VIII.
Article I-XB. This "strained linkage" between the two provisions, each addressed
to a distinct and separate group of public officers –– one, the President and her Petitioners further argue that the exception to the prohibition in Section 7, par.
official family, and the other, public servants in general –– allegedly "abolished (2), Article I-XB on the Civil Service Commission applies to officers and
the clearly separate, higher, exclusive, and mandatory constitutional rank employees of the Civil Service in general and that said exceptions do not apply
assigned to the prohibition against multiple jobs for the President, the Vice- and cannot be extended to Section 13, Article VII which applies specifically to
President, the members of the Cabinet, and their deputies and subalterns, who
the President, Vice-President, Members of the Cabinet and their deputies or and instrumentalities, including government-owned and controlled corporations,
assistants. became prevalent during the time legislative powers in this country were
exercised by former President Ferdinand E. Marcos pursuant to his martial law
There is no dispute that the prohibition against the President, Vice-President, the authority. There was a proliferation of newly-created agencies, instrumentalities
members of the Cabinet and their deputies or assistants from holding dual or and government-owned and controlled corporations created by presidential
multiple positions in the Government admits of certain exceptions. The decrees and other modes of presidential issuances where Cabinet members, their
disagreement between petitioners and public respondents lies on the deputies or assistants were designated to head or sit as members of the board
constitutional basis of the exception. Petitioners insist that because of the phrase with the corresponding salaries, emoluments, per diems, allowances and other
"unless otherwise provided in this Constitution" used in Section 13 of Article perquisites of office. Most of these instrumentalities have remained up to the
VII, the exception must be expressly provided in the Constitution, as in the case present time.
of the Vice-President being allowed to become a Member of the Cabinet under
the second paragraph of Section 3, Article VII or the Secretary of Justice being This practice of holding multiple offices or positions in the government soon led
designated an ex-officio member of the Judicial and Bar Council under Article to abuses by unscrupulous public officials who took advantage of this scheme for
VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase purposes of self-enrichment. In fact, the holding of multiple offices in
"unless otherwise provided in the Constitution" in Section 13, Article VII makes government was strongly denounced on the floor of the Batasang
reference to Section 7, par. (2), Article I-XB insofar as the appointive officials Pambansa. 12 This condemnation came in reaction to the published report of the
mentioned therein are concerned. Commission on Audit, entitled "1983 Summary Annual Audit Report on:
Government-Owned and Controlled Corporations, Self-Governing Boards and
The threshold question therefore is: does the prohibition in Section 13, Article Commissions" which carried as its Figure No. 4 a "Roaster of Membership in
VII of the 1987 Constitution insofar as Cabinet members, their deputies or Governing Boards of Government-Owned and Controlled Corporations as of
assistants are concerned admit of the broad exceptions made for appointive December 31, 1983."
officials in general under Section 7, par. (2), Article I-XB which, for easy
reference is quoted anew, thus: "Unless otherwise allowed by law or by the Particularly odious and revolting to the people's sense of propriety and morality
primary functions of his position, no appointive official shall hold any other in government service were the data contained therein that Roberto V. Ongpin
office or employment in the Government or any subdivision, agency or was a member of the governing boards of twenty-nine (29) governmental
instrumentality thereof, including government-owned or controlled corporation agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three
or their subsidiaries." (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15);
Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C.
We rule in the negative. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve (12)
each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven
A foolproof yardstick in constitutional construction is the intention underlying (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13
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 The blatant betrayal of public trust evolved into one of the serious causes of
accomplished by its adoption, and the evils, if any, sought to be prevented or discontent with the Marcos regime. It was therefore quite inevitable and in
remedied. A doubtful provision will be examined in the light of the history of the consonance with the overwhelming sentiment of the people that the 1986
times, and the condition and circumstances under which the Constitution was Constitutional Commission, convened as it was after the people successfully
framed. The object is to ascertain the reason which induced the framers of the unseated former President Marcos, should draft into its proposed Constitution
Constitution to enact the particular provision and the purpose sought to be the provisions under consideration which are envisioned to remedy, if not
accomplished thereby, in order to construe the whole as to make the words correct, the evils that flow from the holding of multiple governmental offices and
consonant to that reason and calculated to effect that purpose. 11 employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during
the deliberations in these cases, one of the strongest selling points of the 1987
The practice of designating members of the Cabinet, their deputies and assistants Constitution during the campaign for its ratification was the assurance given by
as members of the governing bodies or boards of various government agencies its proponents that the scandalous practice of Cabinet members holding multiple
positions in the government and collecting unconscionably excessive Going further into Section 13, Article VII, the second sentence provides: "They
compensation therefrom would be discontinued. shall not, during said tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract with, or in
But what is indeed significant is the fact that although Section 7, Article I-XB any franchise, or special privilege granted by the Government or any
already contains a blanket prohibition against the holding of multiple offices or subdivision, agency or instrumentality thereof, including government-owned or
employment in the government subsuming both elective and appointive public controlled corporations or their subsidiaries." These sweeping, all-embracing
officials, the Constitutional Commission should see it fit to formulate another prohibitions imposed on the President and his official family, which prohibitions
provision, Sec. 13, Article VII, specifically prohibiting the President, Vice- are not similarly imposed on other public officials or employees such as the
President, members of the Cabinet, their deputies and assistants from holding Members of Congress, members of the civil service in general and members of
any other office or employment during their tenure, unless otherwise provided in the armed forces, are proof of the intent of the 1987 Constitution to treat the
the Constitution itself. President and his official family as a class by itself and to impose upon said class
stricter prohibitions.
Evidently, from this move as well as in the different phraseologies of the
constitutional provisions in question, the intent of the framers of the Constitution Such intent of the 1986 Constitutional Commission to be stricter with the
was to impose a stricter prohibition on the President and his official family in so President and his official family was also succinctly articulated by
far as holding other offices or employment in the government or elsewhere is Commissioner Vicente Foz after Commissioner Regalado Maambong noted
concerned. during the floor deliberations and debate that there was no symmetry between
the Civil Service prohibitions, originally found in the General Provisions and the
Moreover, such intent is underscored by a comparison of Section 13, Article VII anticipated report on the Executive Department. Commissioner Foz Commented,
with other provisions of the Constitution on the disqualifications of certain "We actually have to be stricter with the President and the members of the
public officials or employees from holding other offices or employment. Under Cabinet because they exercise more powers and, therefore, more cheeks and
Section 13, Article VI, "(N)o Senator or Member of the House of restraints on them are called for because there is more possibility of abuse in
Representatives may hold any other office or employment in the Government . . their case." 14
.". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the
active service shall, at any time, be appointed in any capacity to a civilian Thus, while all other appointive officials in the civil service are allowed to hold
position in the Government,including government-owned or controlled other office or employment in the government during their tenure when such is
corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, allowed by law or by the primary functions of their positions, members of the
relied upon by respondents provides "(U)nless otherwise allowed by law or by Cabinet, their deputies and assistants may do so only when expressly authorized
the primary functions of his position, no appointive official shall hold any other by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay
office or employment in the Government." down the general rule applicable to all elective and appointive public officials
and employees, while Section 13, Article VII is meant to be the exception
It is quite notable that in all these provisions on disqualifications to hold other applicable only to the President, the Vice- President, Members of the Cabinet,
office or employment, the prohibition pertains to an office or employment in the their deputies and assistants.
government and government-owned or controlled corporations or their
subsidiaries. In striking contrast is the wording of Section 13, Article VII which This being the case, the qualifying phrase "unless otherwise provided in this
states that "(T)he President, Vice-President, the Members of the Cabinet, and Constitution" in Section 13, Article VII cannot possibly refer to the broad
their deputies or assistants shall not, unless otherwise provided in this exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To
Constitution, hold any other office or employment during their tenure." In the construe said qualifying phrase as respondents would have us do, would render
latter provision, the disqualification is absolute, not being qualified by the phrase nugatory and meaningless the manifest intent and purpose of the framers of the
"in the Government." The prohibition imposed on the President and his official Constitution to impose a stricter prohibition on the President, Vice-President,
family is therefore all-embracing and covers both public and private office or Members of the Cabinet, their deputies and assistants with respect to holding
employment. other offices or employment in the government during their tenure. Respondents'
interpretation that Section 13 of Article VII admits of the exceptions found in
Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully
set by the framers of the Constitution as to when the high-ranking officials of the government offices or employment. Verily, wherever the language used in the
Executive Branch from the President to Assistant Secretary, on the one hand, and constitution is prohibitory, it is to be understood as intended to be a positive and
the generality of civil servants from the rank immediately below Assistant unequivocal negation. 21 The phrase "unless otherwise provided in this
Secretary downwards, on the other, may hold any other office or position in the Constitution" must be given a literal interpretation to refer only to those
government during their tenure. particular instances cited in the Constitution itself, to wit: the Vice-President
being appointed as a member of the Cabinet under Section 3, par. (2), Article
Moreover, respondents' reading of the provisions in question would render VII; or acting as President in those instances provided under Section 7, pars. (2)
certain parts of the Constitution inoperative. This observation applies particularly and (3), Article VII; and, the Secretary of Justice being ex-officio member of the
to the Vice-President who, under Section 13 of Article VII is allowed to hold Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
other office or employment when so authorized by the Constitution, but who as
an elective public official under Sec. 7, par. (1) of Article I-XB is absolutely The prohibition against holding dual or multiple offices or employment under
ineligible "for appointment or designation in any capacity to any public office or Section 13, Article VII of the Constitution must not, however, be construed as
position during his tenure." Surely, to say that the phrase "unless otherwise applying to posts occupied by the Executive officials specified therein without
provided in this Constitution" found in Section 13, Article VII has reference to additional compensation in an ex-officio capacity as provided by law and
Section 7, par. (1) of Article I-XB would render meaningless the specific as required 22 by the primary functions of said officials' office. The reason is that
provisions of the Constitution authorizing the Vice-President to become a these posts do no comprise "any other office" within the contemplation of the
member of the Cabinet, 15 and to act as President without relinquishing the Vice- constitutional prohibition but are properly an imposition of additional duties and
Presidency where the President shall not nave been chosen or fails to functions on said officials. 23 To characterize these posts otherwise would lead to
qualify. 16 Such absurd consequence can be avoided only by interpreting the two absurd consequences, among which are: The President of the Philippines cannot
provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB chair the National Security Council reorganized under Executive Order No. 115
providing the general rule and the other, i.e., Section 13, Article VII as (December 24, 1986). Neither can the Vice-President, the Executive Secretary,
constituting the exception thereto. In the same manner must Section 7, par. (2) of and the Secretaries of National Defense, Justice, Labor and Employment and
Article I-XB be construed vis-a-vis Section 13, Article VII. Local Government sit in this Council, which would then have no reason to exist
for lack of a chairperson and members. The respective undersecretaries and
It is a well-established rule in Constitutional construction that no one provision assistant secretaries, would also be prohibited.
of the Constitution is to be separated from all the others, to be considered alone,
but that all the provisions bearing upon a particular subject are to be brought into The Secretary of Labor and Employment cannot chair the Board of Trustees of
view and to be so interpreted as to effectuate the great purposes of the the National Manpower and Youth Council (NMYC) or the Philippine Overseas
instrument. 17Sections bearing on a particular subject should be considered and Employment Administration (POEA), both of which are attached to his
interpreted together as to effectuate the whole purpose of the Constitution 18 and department for policy coordination and guidance. Neither can his
one section is not to be allowed to defeat another, if by any reasonable Undersecretaries and Assistant Secretaries chair these agencies.
construction, the two can be made to stand together. 19
The Secretaries of Finance and Budget cannot sit in the Monetary
In other words, the court must harmonize them, if practicable, and must lean in Board. 24 Neither can their respective undersecretaries and assistant secretaries.
favor of a construction which will render every word operative, rather than one The Central Bank Governor would then be assisted by lower ranking employees
which may make the words idle and nugatory. 20 in providing policy direction in the areas of money, banking and credit. 25

Since the evident purpose of the framers of the 1987 Constitution is to impose a Indeed, the framers of our Constitution could not have intended such absurd
stricter prohibition on the President, Vice-President, members of the Cabinet, consequences. A Constitution, viewed as a continuously operative charter of
their deputies and assistants with respect to holding multiple offices or government, is not to be interpreted as demanding the impossible or the
employment in the government during their tenure, the exception to this impracticable; and unreasonable or absurd consequences, if possible, should be
prohibition must be read with equal severity. On its face, the language of Section avoided. 26
13, Article VII is prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding multiple
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted on the cabinet official management functions and/or monetary compensation,
as covering positions held without additional compensation in ex- such as but not limited to chairmanships or directorships in government-owned
officio capacities as provided by law and as required by the primary functions of or controlled corporations and their subsidiaries.
the concerned official's office. The term ex-officio means "from office; by virtue
of office." It refers to an "authority derived from official character merely, not Mandating additional duties and functions to the President, Vice-President,
expressly conferred upon the individual character, but rather annexed to the Cabinet Members, their deputies or assistants which are not inconsistent with
official position." Ex-officio likewise denotes an "act done in an official those already prescribed by their offices or appointments by virtue of their
character, or as a consequence of office, and without any other appointment or special knowledge, expertise and skill in their respective executive offices is a
authority than that conferred by the office." 27 An ex-officio member of a board is practice long-recognized in many jurisdictions. It is a practice justified by the
one who is a member by virtue of his title to a certain office, and without further demands of efficiency, policy direction, continuity and coordination among the
warrant or appointment.28 To illustrate, by express provision of law, the different offices in the Executive Branch in the discharge of its multifarious tasks
Secretary of Transportation and Communications is the ex-officioChairman of of executing and implementing laws affecting national interest and general
the Board of the Philippine Ports Authority, 29 and the Light Rail Transit welfare and delivering basic services to the people. It is consistent with the
Authority. 30 power vested on the President and his alter egos, the Cabinet members, to have
control of all the executive departments, bureaus and offices and to ensure that
The Court had occasion to explain the meaning of an ex-officio position the laws are faithfully executed. 35 Without these additional duties and functions
in Rafael vs. Embroidery and Apparel Control and Inspection Board, 31 thus: being assigned to the President and his official family to sit in the governing
"An examination of section 2 of the questioned statute (R.A. 3137) reveals that bodies or boards of governmental agencies or instrumentalities in an ex-
for the chairman and members of the Board to qualify they need only be officio capacity as provided by law and as required by their primary functions,
designated by the respective department heads. With the exception of the they would be supervision, thereby deprived of the means for control and
representative from the private sector, they sit ex-officio. In order to be resulting in an unwieldy and confused bureaucracy.
designated they must already be holding positions in the offices mentioned in the
law. Thus, for instance, one who does not hold a previous appointment in the It bears repeating though that in order that such additional duties or functions
Bureau of Customs, cannot, under the act, be designated a representative from may not transgress the prohibition embodied in Section 13, Article VII of the
that office. The same is true with respect to the representatives from the other 1987 Constitution, such additional duties or functions must be required by the
offices. No new appointments are necessary. This is as it should be, because the primary functions of the official concerned, who is to perform the same in an ex-
representatives so designated merely perform duties in the Board in addition to officio capacity as provided by law, without receiving any additional
those already performed under their original appointments." 32 compensation therefor.

The term "primary" used to describe "functions" refers to the order of importance The ex-officio position being actually and in legal contemplation part of the
and thus means chief or principal function. The term is not restricted to the principal office, it follows that the official concerned has no right to receive
singular but may refer to the plural. 33 The additional duties must not only be additional compensation for his services in the said position. The reason is that
closely related to, but must be required by the official's primary functions. these services are already paid for and covered by the compensation attached to
Examples of designations to positions by virtue of one's primary functions are his principal office. It should be obvious that if, say, the Secretary of Finance
the Secretaries of Finance and Budget sitting as members of the Monetary attends a meeting of the Monetary Board as an ex-officio member thereof, he is
Board, and the Secretary of Transportation and Communications acting as actually and in legal contemplation performing the primary function of his
Chairman of the Maritime Industry Authority 34 and the Civil Aeronautics Board. principal office in defining policy in monetary and banking matters, which come
under the jurisdiction of his department. For such attendance, therefore, he is not
If the functions required to be performed are merely incidental, remotely related, entitled to collect any extra compensation, whether it be in the form of a per
inconsistent, incompatible, or otherwise alien to the primary function of a them or an honorarium or an allowance, or some other such euphemism. By
cabinet official, such additional functions would fall under the purview of "any whatever name it is designated, such additional compensation is prohibited by
other office" prohibited by the Constitution. An example would be the Press the Constitution.
Undersecretary sitting as a member of the Board of the Philippine Amusement
and Gaming Corporation. The same rule applies to such positions which confer
It is interesting to note that during the floor deliberations on the proposal of duties "required," as opposed to "allowed," by the primary functions may be
Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B, considered as not constituting "any other office."
originally found as Section 3 of the General Provisions, the exception "unless
required by the functions of his position," 36 express reference to certain high- While it is permissible in this jurisdiction to consult the debates and proceedings
ranking appointive public officials like members of the Cabinet were of the constitutional convention in order to arrive at the reason and purpose of
made. 37 Responding to a query of Commissioner Blas Ople, Commissioner the resulting Constitution, resort thereto may be had only when other guides
Monsod pointed out that there are instances when although not required by fail 42 as said proceedings are powerless to vary the terms of the Constitution
current law, membership of certain high-ranking executive officials in other when the meaning is clear. Debates in the constitutional convention "are of value
offices and corporations is necessary by reason of said officials' primary as showing the views of the individual members, and as indicating the reasons
functions. The example given by Commissioner Monsod was the Minister of for their votes, but they give us no light as to the views of the large majority who
Trade and Industry. 38 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
While this exchange between Commissioners Monsod and Ople may be used as the constitution from what appears upon its face." 43 The proper interpretation
authority for saying that additional functions and duties flowing from the therefore depends more on how it was understood by the people adopting it than
primary functions of the official may be imposed upon him without offending in the framers's understanding thereof. 44
the constitutional prohibition under consideration, it cannot, however, be taken
as authority for saying that this exception is by virtue of Section 7, par. (2) of It being clear, as it was in fact one of its best selling points, that the 1987
Article I-XB. This colloquy between the two Commissioners took place in the Constitution seeks to prohibit the President, Vice-President, members of the
plenary session of September 27, 1986. Under consideration then was Section 3 Cabinet, their deputies or assistants from holding during their tenure multiple
of Committee Resolution No. 531 which was the proposed article on General offices or employment in the government, except in those cases specified in the
Provisions. 39 At that time, the article on the Civil Service Commission had been Constitution itself and as above clarified with respect to posts held without
approved on third reading on July 22, 1986, 40 while the article on the Executive additional compensation in an ex-officio capacity as provided by law and as
Department, containing the more specific prohibition in Section 13, had also required by the primary functions of their office, the citation of Cabinet members
been earlier approved on third reading on August 26, 1986. 41 It was only after (then called Ministers) as examples during the debate and deliberation on the
the draft Constitution had undergone reformatting and "styling" by the general rule laid down for all appointive officials should be considered as mere
Committee on Style that said Section 3 of the General Provisions became personal opinions which cannot override the constitution's manifest intent and
Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by the people' understanding thereof.
law or by the primary functions of his position. . . ."
In the light of the construction given to Section 13, Article VII in relation to
What was clearly being discussed then were general principles which would Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No.
serve as constitutional guidelines in the absence of specific constitutional 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of
provisions on the matter. What was primarily at issue and approved on that positions that Cabinet members, undersecretaries or assistant secretaries may
occasion was the adoption of the qualified and delimited phrase "primary hold in addition to their primary position to not more than two (2) positions in
functions" as the basis of an exception to the general rule covering all appointive the government and government corporations, Executive Order No. 284 actually
public officials. Had the Constitutional Commission intended to dilute the allows them to hold multiple offices or employment in direct contravention of
specific prohibition in said Section 13 of Article VII, it could have re-worded the express mandate of Section 13, Article VII of the 1987 Constitution
said Section 13 to conform to the wider exceptions provided in then Section 3 of prohibiting them from doing so, unless otherwise provided in the 1987
the proposed general Provisions, later placed as Section 7, par. (2) of Article IX- Constitution itself.
B on the Civil Service Commission.
The Court is alerted by respondents to the impractical consequences that will
That this exception would in the final analysis apply also to the President and his result from a strict application of the prohibition mandated under Section 13,
official family is by reason of the legal principles governing additional functions Article VII on the operations of the Government, considering that Cabinet
and duties of public officials rather than by virtue of Section 7, par. 2, Article members would be stripped of their offices held in an ex-officio capacity, by
IX-B At any rate, we have made it clear that only the additional functions and reason of their primary positions or by virtue of legislation. As earlier clarified in
this decision, ex-officio posts held by the executive official concerned without WHEREFORE, subject to the qualification above-stated, the petitions are
additional compensation as provided by law and as required by the primary GRANTED. Executive Order No. 284 is hereby declared null and void and is
functions of his office do not fall under the definition of "any other office" accordingly set aside.
within the contemplation of the constitutional prohibition. With respect to other
offices or employment held by virtue of legislation, including chairmanships or SO ORDERED.
directorships in government-owned or controlled corporations and their
subsidiaries, suffice it to say that the feared impractical consequences are more
apparent than real. Being head of an executive department is no mean job. It is
more than a full-time job, requiring full attention, specialized knowledge, skills
and expertise. If maximum benefits are to be derived from a department head's
ability and expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental offices or
employment. He should be precluded from dissipating his efforts, attention and
energy among too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this stage of
our national and economic development, far outweigh the benefits, if any, that
may be gained from a department head spreading himself too thin and taking in
more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby
orders respondents Secretary of Environment and Natural Resources Fulgencio
Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of
National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon
and Secretary of the Budget Guillermo Carague to immediately relinquish their
other offices or employment, as herein defined, in the government, including
government-owned or controlled corporations and their subsidiaries. With
respect to the other named respondents, the petitions have become moot and
academic as they are no longer occupying the positions complained of.

During their tenure in the questioned positions, respondents may be

considered de facto officers and as such entitled to emoluments for actual
services rendered. 46 It has been held that "in cases where there is no de
jure,officer, a de facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the salary,
fees and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust that the public
should benefit by the services of an officer de facto and then be freed from all
liability to pay any one for such services. 47 Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in
the questioned positions may therefore be retained by them.
Republic of the Philippines The right of the people, including those employed in the public and
SUPREME COURT private sectors, to form unions, associations, or societies for purposes
Manila not contrary to law shall not be abridged.

EN BANC For this reason, the petition was referred to the Court en banc.

The Issues in this Case

G.R. No. 122226 March 25, 1998 Two questions are presented by the petition: (1) whether the route managers at
Pepsi-Cola Products Philippines, Inc. are managerial employees and (2) whether
UNITED PEPSI-COLA SUPERVISORY UNION (UPSU), petitioner, Art. 245, insofar as it prohibits managerial employees from forming, joining or
vs. assisting labor unions, violates Art. III, §8 of the Constitution.
PHILIPPINES, INC. respondents. In resolving these issues it would be useful to begin by defining who are
"managerial employees" and considering the types of "managerial employees."

Types of Managerial Employees

The term "manager" generally refers to "anyone who is responsible for
Petitioner is a union of supervisory employees. It appears that on March 20, subordinates and other organizational resources." 1 As a class, managers
1995 the union filed a petition for certification election on behalf of the route constitute three levels of a pyramid:
managers at Pepsi-Cola Products Philippines, Inc. However, its petition was
denied by the med-arbiter and, on appeal, by the Secretary of Labor and Top management
Employment, on the ground that the route managers are managerial employees
and, therefore, ineligible for union membership under the first sentence of Art. ————————
245 of the Labor Code, which provides:
Ineligibility of managerial employees to join any labor
organization; right of supervisory employees. — Managerial employees Management
are not eligible to join, assist or form any labor organization.
Supervisory employees shall not be eligible for membership in a labor
organization of the rank-and-file employees but may join, assist or form
separate labor organizations of their own.
Petitioner brought this suit challenging the validity of the order dated August 31,
1995, as reiterated in the order dated September 22, 1995, of the Secretary of Management
Labor and Employment. Its petition was dismissed by the Third Division for lack
of showing that respondent committed grave abuse of discretion. But petitioner (also called
filed a motion for reconsideration, pressing for resolution its contention that the
first sentence of Art. 245 of the Labor Code, so far as it declares managerial Supervisor)
employees to be ineligible to form, assist or join unions, contravenes Art. III, §8
of the Constitution which provides: ====================
Operatives "Managerial employees" may therefore be said to fall into two distinct
categories: the "managers" per se, who compose the former group described
or above, and the "supervisors" who form the latter group. Whether they belong to
the first or the second category, managers, vis-a-vis employers, are, likewise,
Operating employees. 3

Employees The first question is whether route managers are managerial employees or
FIRST-LINE MANAGERS — The lowest level in an organization at
which individuals are responsible for the work of others is called first- Previous Administrative Determinations of
line or first-level management. First-line managers direct operating the Question Whether Route Managers
employees only; they do not supervise other managers. Examples of are Managerial Employees
first-line managers are the "foreman" or production supervisor in a
manufacturing plant, the technical supervisor in a research department, It appears that this question was the subject of two previous determinations by
and the clerical supervisor in a large office. First-level managers are the Secretary of Labor and Employment, in accordance with which this case was
often called supervisors. decided by the med-arbiter.

MIDDLE MANAGERS — The term middle management can refer to In Case No. OS-MA-10-318-91, entitled Worker's Alliance Trade Union
more than one level in an organization. Middle managers direct the (WATU) v. Pepsi-Cola Products Philippines, Inc., decided on November 13,
activities of other managers and sometimes also those of operating 1991, the Secretary of Labor found:
employees. Middle managers' principal responsibilities are to direct the
activities that implement their organizations' policies and to balance the We examined carefully the pertinent job descriptions of the subject
demands of their superiors with the capacities of their subordinates. A employees and other documentary evidence on record vis-a-
plant manager in an electronics firm is an example of a middle vis paragraph (m), Article 212 of the Labor Code, as amended, and we
manager. find that only those employees occupying the position of route manager
and accounting manager are managerial employees. The rest i.e. quality
TOP MANAGERS — Composed of a comparatively small group of control manager, yard/transport manager and warehouse operations
executives, top management is responsible for the overall management manager are supervisory employees.
of the organization. It establishes operating policies and guides the
organization's interactions with its environment. Typical titles of top To qualify as managerial employee, there must be a clear showing of the
managers are "chief executive officer," "president," and "senior vice- exercise of managerial attributes under paragraph (m), Article 212 of the
president." Actual titles vary from one organization to another and are Labor Code as amended. Designations or titles of positions are not
not always a reliable guide to membership in the highest management controlling. In the instant case, nothing on record will support the claim
classification. 2 that the quality control manager, yard/transport manager and warehouse
operations manager are vested with said attributes. The warehouse
As can be seen from this description, a distinction exists between those who have operations manager, for example, merely assists the plant finance
the authority to devise, implement and control strategic and operational policies manager in planning, organizing, directing and controlling all activities
(top and middle managers) and those whose task is simply to ensure that such relative to development and implementation of an effective management
policies are carried out by the rank-and-file employees of an organization (first- control information system at the sale offices. The exercise of authority
level managers/supervisors). What distinguishes them from the rank-and-file of the quality control manager, on the other hand, needs the concurrence
employees is that they act in the interest of the employer in supervising such of the manufacturing manager.
rank-and-file employees.
As to the route managers and accounting manager, we are convinced requirement was therefore necessary only as an expeditious shield
that they are managerial employees. Their job descriptions clearly reveal against arbitrary dismissal without the knowledge and supervision of the
so. Department of Labor. Hence, a duly approved clearance implied that the
dismissal was legal or for cause (Sec. 2). 7
On July 6, 1992, this finding was reiterated in Case No. OS-A-3-71-92.
entitled In Re: Petition for Direct Certification and/or Certification Election- But the doctrine of res judicata certainly applies to adversary administrative
Route Managers/Supervisory Employees of Pepsi-Cola Products Phils.Inc., as proceedings. As early as 1956, inBrillantes v. Castro, 8 we sustained the
follows: dismissal of an action by a trial court on the basis of a prior administrative
determination of the same case by the Wage Administration Service, applying
The issue brought before us is not of first impression. At one time, we the principle of res judicata. Recently, in Abad v. NLRC 9 we applied the related
had the occasion to rule upon the status of route manager in the same doctrine of stare decisis in holding that the prior determination that certain jobs
company vis a vis the issue as to whether or not it is supervisory at the Atlantic Gulf and Pacific Co., were project employments was binding in
employee or a managerial employee. In the case of Workers Alliance another case involving another group of employees of the same company.
Trade Unions (WATU) vs. Pepsi Cola Products, Phils., Inc. (OS-MA-A- Indeed, in Nasipit Lumber Co., this Court clarified toward the end of its opinion
10-318-91 ), 15 November 1991, we ruled that a route manager is a that "the doctrine of res judicata applies . . . to judicial or quasi
managerial employee within the context of the definition of the law, and judicial proceedings and not to the exercise of administrative powers." 10 Now
hence, ineligible to join, form or assist a union. We have once more proceedings for certification election, such as those involved in Case No. OS-M-
passed upon the logic of our Decision aforecited in the light of the issues A-10-318-91 and Case No. OS-A-3-71-92, are quasi judicial in nature and,
raised in the instant appeal, as well as the available documentary therefore, decisions rendered in such proceedings can attain finality. 11
evidence on hand, and have come to the view that there is no cogent
reason to depart from our earlier holding. Route Managers are, by the Thus, we have in this case an expert's view that the employees concerned are
very nature of their functions and the authority they wield over their managerial employees within the purview of Art. 212 which provides:
subordinates, managerial employees. The prescription found in Art. 245
of the Labor Code, as amended therefore, clearly applies to them. 4 (m) "managerial employee" is one who is vested with powers or
prerogatives to lay down and execute management policies and/or to
Citing our ruling in Nasipit Lumber Co. v. National Labor Relations hire, transfer, suspend, lay off, recall, discharge, assign or discipline
Commission, 5 however, petitioner argues that these previous administrative employees. Supervisory employees are those who, in the interest of the
determinations do not have the effect of res judicata in this case, because "labor employer, effectively recommend such managerial actions if the
relations proceedings" are "non-litigious and summary in nature without regard exercise of such authority is not merely routinary or clerical in nature
to legal technicalities." 6 Nasipit Lumber Co. involved a clearance to dismiss an but requires the use of independent judgment. All employees not falling
employee issued by the Department of Labor. The question was whether in a within any of the above definitions are considered rank-and-file
subsequent proceeding for illegal dismissal, the clearance was res judicata. In employees for purposes of this Book.
holding it was not, this Court made it clear that it was referring to labor relations
proceedings of a non-adversary character, thus: At the very least, the principle of finality of administrative determination
compels respect for the finding of the Secretary of Labor that route managers are
The requirement of a clearance to terminate employment was a creation managerial employees as defined by law in the absence of anything to show that
of the Department of labor to carry out the Labor Code provisions on such determination is without substantial evidence to support it. Nonetheless, the
security of tenure and termination of employment. The proceeding Court, concerned that employees who are otherwise supervisors may wittingly or
subsequent to the filing of an application for clearance to terminate unwittingly be classified as managerial personnel and thus denied the right of
employment was outlined in Book V, Rule XIV of the Rules and self-organization, has decided to review the record of this case.
Regulations Implementing the Labor Code. The fact that said rule
allowed a procedure for the approval of the clearance with or without
the opposition of the employee concerned (Secs. 7 & 8), demonstrates
the non-litigious and summary nature of the proceeding. The clearance
DOLE's Finding that Route Managers are 1.1.4 Inspect and ensure that all
Managerial Employees Supported by merchandizing [sic] objectives are achieved in
Substantial Evidence in the Record all outlets.

The Court now finds that the job evaluation made by the Secretary of Labor is 1.1.5 maintain and improve productivity of all
indeed supported by substantial evidence. The nature of the job of route cooling equipment and kiosks.
managers is given in a four-page pamphlet, prepared by the company, called
"Route Manager Position Description," the pertinent parts of which read: 1.1.6 Execute and control all authorized
1.1.7 Develop and maintain dealer goodwill.
A Manager achieves objectives through others.
1.1.8 Ensure all accounts comply with
As a Route Manager, your purpose is to meet the sales company suggested retail pricing.
plan; and you achieve this objective through the skillful
MANAGEMENT OF YOUR JOB AND THE 1.1.9 Study from time to time individual route
MANAGEMENT OF YOUR PEOPLE. coverage and productivity for possible
adjustments to maximize utilization of
These then are your functions as Pepsi-Cola Route resources.
Manager. Within these functions — managing your job
and managing your people — you are accountable to 1.2 Administration
your District Manager for the execution and
completion of various tasks and activities which will 1.2.1 Ensure the proper loading of route trucks
make it possible for you to achieve your sales before check-out and the proper sorting of
objectives. bottles before check-in.

B. PRINCIPAL ACCOUNTABILITIES 1.2.2 Ensure the upkeep of all route sales

reports and all other related reports and forms
1.0 MANAGING YOUR JOB required on an accurate and timely basis.

The Route Manager is accountable for the 1.2.3 Ensure proper implementation of the
following: various company policies and procedures incl.
but not limited to shakedown; route shortage;
1.1 SALES DEVELOPMENT progressive discipline; sorting; spoilages;
credit/collection; accident; attendance.
1.1.1 Achieve the sales plan.
1.2.4 Ensure collection of receivables and
1.1.2 Achieve all distribution and new account delinquent accounts.
1.1.3 Develop new business opportunities thru
personal contacts with dealers.
The Route Manager is accountable for the functions but business administrators in their own right. An idea of the role of
following: route managers as managers per se can be gotten from a memo sent by the
director of metro sales operations of respondent company to one of the route
2.1 Route Sales Team Development managers. It reads: 13

2.1.2 Conduct route rides to train, evaluate and 03 April 1995

develop all assigned route salesmen and
helpers at least 3 days a week, to be supported To : CESAR T . REOLADA
by required route ride documents/reports &
back check/spot check at least 2 days a week From : REGGIE M. SANTOS
to be supported by required
documents/reports. Subj : SALARY INCREASE

2.1.2 Conduct sales meetings and morning Effective 01 April 1995, your basic monthly salary of P11,710 will be
huddles. Training should focus on the increased to P12,881 or an increase of 10%. This represents the added
enhancement of effective sales and managerial responsibilities you will assume due to the recent
merchandizing [sic] techniques of the restructuring and streamlining of Metro Sales Operations brought about
salesmen and helpers. Conduct group training by the continuous losses for the last nine (9) months.
at least 1 hour each week on a designated day
and of specific topic.
Let me remind you that for our operations to be profitable, we have to
sustain the intensity and momentum that your group and yourself have
2.2 Code of Conduct shown last March. You just have to deliver the desired volume targets,
better negotiated concessions, rationalized sustaining deals, eliminate
2.2.1 Maintain the company's reputation or reduced overdues, improved collections, more cash accounts,
through strict adherence to PCPPI's code of controlled operating expenses, etc. Also, based on the agreed set targets,
conduct and the universal standards of your monthly performance will be closely monitored.
unquestioned business
ethics. 12 You have proven in the past that your capable of achieving your targets
thru better planning, managing your group as a fighting team, and thru
Earlier in this opinion, reference was made to the distinction between aggressive selling. I am looking forward to your success and I expect
managers per se (top managers and middle managers) and supervisors (first-line that you just have to exert your doubly best in turning around our
managers). That distinction is evident in the work of the route managers which operations from a losing to a profitable one!
sets them apart from supervisors in general. Unlike supervisors who basically
merely direct operating employees in line with set tasks assigned to them, route Happy Selling!! (Sgd.) R.M. SANTOS
managers are responsible for the success of the company's main line of business
through management of their respective sales teams. Such management
The plasticized card given to route managers, quoted in the separate opinion of
necessarily involves the planning, direction, operation and evaluation of their
Justice Vitug, although entitled "RM's Job Description," is only a summary of
individual teams and areas which the work of supervisors does not entail.
performance standards. It does not show whether route managers are
managers per se or supervisors. Obviously, these performance standards have to
The route managers cannot thus possibly be classified as mere supervisors be related to the specific tasks given to route managers in the four-page "Route
because their work does not only involve, but goes far beyond, the simple Manager Position Description," and, when this is done, the managerial nature of
direction or supervision of operating employees to accomplish objectives set by their jobs is fully revealed. Indeed, if any, the card indicates the great latitude
those above them. They are not mere functionaries with simple oversight and discretion given to route managers — from servicing and enhancing
company goodwill to supervising and auditing accounts, from trade (new As already stated, whether they belong to the first category (managers per se) or
business) development to the discipline, training and monitoring of performance the second category (supervisors), managers are employees. Nonetheless, in the
of their respective sales teams, and so forth, — if they are to fulfill the company's United States, as Justice Puno's separate opinion notes, supervisors have no
expectations in the "key result areas." right to form unions. They are excluded from the definition of the term
"employee" in §2(3) of the Labor-Management Relations Act of 1947. 15 In the
Article 212(m) says that "supervisory employees are those who, in the interest of Philippines, the question whether managerial employees have a right of self-
the employer, effectivelyrecommend such managerial actions if the exercise of organization has arisen with respect to first-level managers or supervisors, as
such authority is not merely routinary or clerical in nature but requires the use shown by a review of the course of labor legislation in this country.
of independent judgment." Thus, their only power is to recommend. Certainly,
the route managers in this case more than merely recommend effective Right of Self-Organization of Managerial
management action. They perform operational, human resource, financial and Employees under Pre-Labor Code Laws
marketing functions for the company, all of which involve the laying down of
operating policies for themselves and their teams. For example, with respect to Before the promulgation of the Labor Code in 1974, the field of labor relations
marketing, route managers, in accordance with B.1.1.1 to B.1.1.9 of the Route was governed by the Industrial Peace Act (R.A. No. 875).
Managers Job Description, are charged, among other things, with expanding the
dealership base of their respective sales areas, maintaining the goodwill of In accordance with the general definition above, this law defined "supervisor" as
current dealers, and distributing the company's various promotional items as follows:
they see fit. It is difficult to see how supervisors can be given such responsibility
when this involves not just the routine supervision of operating employees but
Sec. 2. . . .
the protection and expansion of the company's business vis-a-vis its competitors.
(k) "Supervisor" means any person having authority in the interest of an
While route managers do not appear to have the power to hire and fire people
employer, to hire, transfer, suspend, lay-off, recall, discharge, assign,
(the evidence shows that they only "recommended" or "endorsed" the taking of
recommend, or discipline other employees, or responsibly to direct
disciplinary action against certain employees), this is because this
them, and to adjust their grievances, or effectively to recommend such
is a function of the Human Resources or Personnel Department of the
acts, if, in connection with the foregoing, the exercise of such authority
company. 14 And neither should it be presumed that just because they are given
is not of a merely routinary or clerical nature but requires the use of
set benchmarks to observe, they are ipso facto supervisors. Adequate control
independent judgment. 16
methods (as embodied in such concepts as "Management by Objectives [MBO]"
and "performance appraisals") which require a delineation of the functions and
responsibilities of managers by means of ready reference cards as here, have The right of supervisors to form their own organizations was affirmed:
long been recognized in management as effective tools for keeping businesses
competitive. Sec. 3. Employees' Right to Self-Organization. — Employees shall have
the right to self-organization and to form, join or assist labor
This brings us to the second question, whether the first sentence of Art. 245 of organizations of their own choosing for the purpose of collective
the Labor Code, prohibiting managerial employees from forming, assisting or bargaining through representatives of their own choosing and to engage
joining any labor organization, is constitutional in light of Art. III, §8 of the in concerted activities for the purpose of collective bargaining and other
Constitution which provides: mutual aid and protection. Individuals employed as supervisors shall
not be eligible for membership in a labor organization of employees
under their supervision but may form separate organizations of their
The right of the people, including those employed in the public and
own. 17
private sectors, to form unions, associations, or societies for purposes
not contrary to law shall not be abridged.
For its part, the Supreme Court upheld in several of its decisions the right of
supervisors to organize for purposes of labor relations. 18
Although it had a definition of the term "supervisor," the Industrial Peace Act Actually, the case involved front-line managers or supervisors only, as the
did not define the term "manager." But, using the commonly-understood concept plantilla of employees, quoted in the main opinion, 21 clearly indicates:
of "manager," as above stated, it is apparent that the law used the term
"supervisors" to refer to the sub-group of "managerial employees" known as CAFIMSA members holding the following Supervisory Payroll Position
front-line managers. The other sub-group of "managerial employees," known as Title are Recognized by the Company
managers per se, was not covered.
Payroll Position Title
However, in Caltex Filipino Managers and Supervisors Association v. Court of
Industrial Relations, 19 the right of all managerial employees to self-organization Assistant to Mgr. — National Acct. Sales
was upheld as a general proposition, thus:
Jr. Sales Engineer
It would be going too far to dismiss summarily the point raised by
respondent Company — that of the alleged identity of interest between
Retail Development Asst.
the managerial staff and the employing firm. That should ordinarily be
the case, especially so where the dispute is between management and
the rank and file. It does not necessarily follow though that what binds Staff Asst. — 0 Marketing
the managerial staff to the corporation forecloses the possibility of
conflict between them. There could be a real difference between what Sales Supervisor
the welfare of such group requires and the concessions the firm is
willing to grant. Their needs might not be attended to then in the Supervisory Assistant
absence of any organization of their own. Nor is this to indulge in empty
theorizing. The record of respondent Company, even the very case cited Jr. Supervisory Assistant
by it, is proof enough of their uneasy and troubled relationship.
Certainly the impression is difficult to erase that an alien firm failed to Credit Assistant
manifest sympathy for the claims of its Filipino executives. To predicate
under such circumstances that agreement inevitably marks their Lab. Supvr. — Pandacan
relationship, ignoring that discord would not be unusual, is to fly in the
face of reality.
Jr. Sales Engineer B
. . . The basic question is whether the managerial personnel can
organize. What respondent Company failed to take into account is that Operations Assistant B
the right to self-organization is not merely a statutory creation. It is
fortified by our Constitution. All are free to exercise such right unless Field Engineer
their purpose is contrary to law. Certainly it would be to attach
unorthodoxy to, not to say an emasculation of, the concept of law if Sr. Opers. Supvr. — MIA A/S
managers as such were precluded from organizing. Having done so and
having been duly registered, as did occur in this case, their union is Purchasing Assistant
entitled to all the rights under Republic Act No. 875. Considering what
is denominated as unfair labor practice under Section 4 of such Act and Jr. Construction Engineer
the facts set forth in our decision, there can be only one answer to the
objection raised that no unfair labor practice could be committed by Sr. Sales Supervisor
respondent Company insofar as managerial personnel is concerned. It
is, as is quite obvious, in the negative. 20
Deport Supervisor A
Terminal Accountant B Finally, also deemed included are all other employees excluded from the
rank and file unions but not classified as managerial or otherwise
Merchandiser excludable by law or applicable judicial precedents.

Dist. Sales Prom. Supvr. Right of Self-Organization of Managerial

Employees under the Labor Code
Instr. — Merchandising
Thus, the dictum in the Caltex case which allowed at least for the theoretical
Asst. Dist. Accountant B unionization of top and middle managers by assimilating them with the
supervisory group under the broad phrase "managerial personnel," provided the
lynchpin for later laws denying the right of self-organization not only to top and
Sr. Opers. Supervisor
middle management employees but to front line managers or supervisors as well.
Following the Caltex case, the Labor Code, promulgated in 1974 under martial
Jr. Sales Engineer A law, dropped the distinction between the first and second sub-groups of
managerial employees. Instead of treating the terms "supervisor" and "manager"
Asst. Bulk Ter. Supt. separately, the law lumped them together and called them "managerial
employees," as follows:
Sr. Opers. Supvr.
Art. 212. Definitions . . . .
Credit Supervisor A
(k) "Managerial Employee" is one who is vested with powers or
Asst. Stores Supvr. A prerogatives to lay down and execute management policies and/or to
hire, transfer, suspend, lay off, recall, discharge, assign or discipline
Ref. Supervisory Draftsman employees, or to effectively recommend such managerial actions. All
employees not falling within this definition are considered rank and file
Refinery Shift Supvr. B employees for purposes of this Book. 22

Asst. Supvr. A — Operations (Refinery) The definition shows that it is actually a combination of the commonly
understood definitions of both groups of managerial employees, grammatically
joined by the phrase "and/or."
Refinery Shift Supvr. B

Asst. Lab. Supvr. A (Refinery) This general definition was perhaps legally necessary at that time for two
reasons. First, the 1974 Code denied supervisors their right to self-organize as
theretofore guaranteed to them by the Industrial Peace Act. Second, it stood the
St. Process Engineer B (Refinery) dictum in the Caltex case on its head by prohibiting all types of managers from
forming unions. The explicit general prohibition was contained in the then Art.
Asst. Supvr. A — Maintenance (Refinery) 246 of the Labor Code.

Asst. Supvr. B — Maintenance (Refinery) The practical effect of this synthesis of legal concepts was made apparent in the
Omnibus Rules Implementing the Labor Code which the Department of Labor
Supervisory Accountant (Refinery) promulgated on January 19, 1975. Book V, Rule II, §11 of the Rules provided:

Communications Supervisor (Refinery)

Supervisory unions and unions of security guards to cease operation. — MR. LERUM. Under the 1935 Bill of Rights, the right to form
All existing supervisory unions and unions of security guards shall, associations is granted to all persons whether or not they are employed
upon the effectivity of the Code, cease to operate as such and their in the government. Under that provision, we allow unions in the
registration certificates shall be deemed automatically canceled. government, in government-owned and controlled corporations and in
However, existing collective agreements with such unions, the life of other industries in the private sector, such as the Philippine Government
which extends beyond the date of effectivity of the Code, shall be Employees' Association, unions in the GSIS, the SSS, the DBP and other
respected until their expiry date insofar as the economic benefits government-owned and controlled corporations. Also, we have unions
granted therein are concerned. of supervisory employees and of security guards. But what is tragic
about this is that after the 1973 Constitution was approved and in spite
Members of supervisory unions who do not fall within the definition of of an express recognition of the right to organize in P.D. No. 442,
managerial employees shall become eligible to join or assist the rank known as the Labor Code, the right of government workers, supervisory
and file labor organization, and if none exists, to form or assist in the employees and security guards to form unions was abolished.
forming of such rank and file organization. The determination of who
are managerial employees and who are not shall be the subject of And we have been fighting against this abolition. In every tripartite
negotiation between representatives of the supervisory union and the conference attended by the government, management and workers, we
employer. If no agreement is reached between the parties, either or both have always been insisting on the return of these rights. However, both
of them may bring the issue to the nearest Regional Office for the government and employers opposed our proposal, so nothing came
determination. out of this until this week when we approved a provision which states:

The Department of Labor continued to use the term "supervisory unions" despite Notwithstanding any provision of this article, the right
the demise of the legal definition of "supervisor" apparently because these were to self-organization shall not be denied to government
the unions of front line managers which were then allowed as a result of the employees.
statutory grant of the right of self-organization under the Industrial Peace Act.
Had the Department of Labor seen fit to similarly ban unions of top and middle We are afraid that without any corresponding provision covering the
managers which may have been formed following the dictum in Caltex, it private sector, the security guards, the supervisory employees or
obviously would have done so. Yet it did not, apparently because no such unions majority employees [sic] will still be excluded, and that is the purpose of
of top and middle managers really then existed. this amendment.

Real Intent of the 1986 Constitutional Commission I will be very glad to accept any kind of wording as long as it will
amount to absolute recognition of private sector employees, without
This was the law as it stood at the time the Constitutional Commission exception, to organize.
considered the draft of Art. III, §8. Commissioner Lerum sought to amend the
draft of what was later to become Art. III, §8 of the present Constitution: THE PRESIDENT. What does the Committee say?

MR. LERUM. My amendment is on Section 7, page 2, line 19, which is FR. BERNAS. Certainly, the sense is very acceptable, but the point
to insert between the words "people" and "to" the following: WHETHER raised by Commissioner Rodrigo is well-taken. Perhaps, we can
EMPLOYED BY THE STATE OR PRIVATE ESTABLISHMENTS. In lengthen this a little bit more to read: "The right of the people
other words, the section will now read as follows: "The right of the WHETHER UNEMPLOYED OR EMPLOYED BY STATE OR PRIVATE
ESTABLISHMENTS to form associations, unions, or societies for
purposes not contrary to law shall not be abridged." 23 I want to avoid also the possibility of having this interpreted as
applicable only to the employed.
Explaining his proposed amendment, he stated:
MR. DE LOS REYES. Will the proponent accept an amendment to the wording as long as it will amount to absolute recognition of private sector
amendment, Madam President? employees, without exception, to organize"? 26 Or, did he instead intend to have
his words taken in the context of the cause which moved him to propose the
MR. LERUM. Yes, as long as it will carry the idea that the right of the amendment in the first place, namely, the denial of the right of supervisory
employees in the private sector is recognized.24 employees to organize, because he said, "We are afraid that without any
corresponding provision covering the private sector, security guards,
Lerum thus anchored his proposal on the fact that (1) government employees, supervisory employees or majority [of] employees will still be excluded, and that
supervisory employees, and security guards, who had the right to organize under is the purpose of this amendment"? 27
the Industrial Peace Act, had been denied this right by the Labor Code, and (2)
there was a need to reinstate the right of these employees. In consonance with It would seem that Commissioner Lerum simply meant to restore the right of
his objective to reinstate the right of government, security, and supervisory supervisory employees to organize. For even though he spoke of the need to
employees to organize, Lerum then made his proposal: "abolish" Art. 246 of the Labor Code which, as already stated, prohibited
"managerial employees" in general from forming unions, the fact was that in
MR. LERUM. Mr. Presiding Officer, after a consultation with several explaining his proposal, he repeatedly referred to "supervisory employees"
Members of this Commission, my amendment will now read as follows: whose right under the Industrial Peace Act to organize had been taken away by
"The right of the people INCLUDING THOSE EMPLOYED IN THE Art. 246. It is noteworthy that Commissioner Lerum never referred to the then
PUBLIC AND PRIVATE SECTORS to form associations, unions, or definition of "managerial employees" in Art. 212(m) of the Labor Code which
societies for purposes not contrary to law shall not be abridged. In put together, under the broad phrase "managerial employees," top and middle
proposing that amendment I ask to make of record that I want the managers and supervisors. Instead, his repeated use of the term "supervisory
following provisions of the Labor Code to be automatically abolished, employees," when such term then was no longer in the statute books, suggests a
which read: frame of mind that remained grounded in the language of the Industrial Peace
Art. 245. Security guards and other personnel
employed for the protection and security of the person, Nor did Lerum ever refer to the dictum in Caltex recognizing the right of all
properties and premises of the employers shall not be managerial employees to organize, despite the fact that the Industrial Peace Act
eligible for membership in a labor organization. did not expressly provide for the right of top and middle managers to organize. If
Lerum was aware of the Caltex dictum, then his insistence on the use of the term
"supervisory employees" could only mean that he was excluding other
Art. 246. Managerial employees are not eligible to
managerial employees from his proposal. If, on the other hand, he was not
join, assist, and form any labor organization.
aware of the Caltex statement sustaining the right to organize to top and middle
managers, then the more should his repeated use of the term "supervisory
THE PRESIDING OFFICER (Mr. Bengzon). What does the Committee employees" be taken at face value, as it had been defined in the then Industrial
say? Peace Act.

FR. BERNAS. The Committee accepts. At all events, that the rest of the Commissioners understood his proposal to refer
solely to supervisors and not to other managerial employees is clear from the
THE PRESIDING OFFICER. (Mr. Bengzon) The Committee has following account of Commissioner Joaquin G. Bernas, who writes:
accepted the amendment, as amended.
In presenting the modification on the 1935 and 1973 texts,
Is there any objection? (Silence) The Chair hears none; the amendment, Commissioner Eulogio R. Lerum explained that the modification
as amended, is approved. 25 included three categories of workers: (1) government employees, (2)
supervisory employees, and (3) security guards. Lerum made of record
The question is what Commissioner Lerum meant in seeking to "automatically the explicit intent to repeal provisions of P.D. 442, the Labor Code. The
abolish" the then Art. 246 of the Labor Code. Did he simply want "any kind of provisions referred to were:
Art. 245. Security guards and other personnel (m) "managerial employee" is one who is vested with powers or
employed for the protection and security of the person, prerogatives to lay down and execute management policies and/or to
properties and premises of the employers shall not be hire transfer, suspend, lay off, recall, discharge, assign or discipline
eligible for membership in a labor organization. employees. Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions if the exercise
Art. 246. Managerial employees are not eligible to of such authority is not merely routinary or clerical in nature but
join, assist, and form any labor organization. 28 requires the use of independent judgment. All employees not falling
within any of the above definitions are considered rank-and-file
Implications of the Lerum Proposal employees for purposes of this Book.

In sum, Lerum's proposal to amend Art. III, §8 of the draft Constitution by Although the definition of "supervisory employees" seems to have been unduly
including labor unions in the guarantee of organizational right should be taken restricted to the last phrase of the definition in the Industrial Peace Act, the legal
in the context of statements that his aim was the removal of the statutory ban significance given to the phrase "effectively recommends" remains the same. In
against security guards and supervisory employees joining labor organizations. fact, the distinction between top and middle managers, who set management
The approval by the Constitutional Commission of his proposal can only mean, policy, and front-line supervisors, who are merely responsible for ensuring that
therefore, that the Commission intended the absolute right to organize of such policies are carried out by the rank and file, is articulated in the present
government workers, supervisory employees, and security guards to be definition. 30 When read in relation to this definition in Art. 212(m), it will be
constitutionally guaranteed. By implication, no similar absolute constitutional seen that Art. 245 faithfully carries out the intent of the Constitutional
right to organize for labor purposes should be deemed to have been granted to Commission in framing Art. III, §8 of the fundamental law.
top-level and middle managers. As to them the right of self-organization may be
regulated and even abridged conformably to Art. III, §8. Nor is the guarantee of organizational right in Art. III, §8 infringed by a ban
against managerial employees forming a union. The right guaranteed in Art. III,
Constitutionality of Art. 245 §8 is subject to the condition that its exercise should be for purposes "not
contrary to law." In the case of Art. 245, there is a rational basis for prohibiting
managerial employees from forming or joining labor organizations. As Justice
Finally, the question is whether the present ban against managerial employees,
Davide, Jr., himself a constitutional commissioner, said in his ponencia inPhilips
as embodied in Art. 245 (which superseded Art. 246) of the Labor Code, is valid.
Industrial Development, Inc. v. NLRC: 31
This provision reads:
In the first place, all these employees, with the exception of the service
Art. 245. Ineligibility of managerial employees to join any labor
engineers and the sales force personnel, are confidential employees.
organization; right of supervisory employees. — Managerial employees
Their classification as such is not seriously disputed by PEO-FFW; the
are not eligible to join, assist or form any labor organization.
five (5) previous CBAs between PIDI and PEO-FFW explicitly
Supervisory employees shall not be eligible for membership in a labor
considered them as confidential employees. By the very nature of their
organization of the rank-and-file employees but may join, assist or form
functions, they assist and act in a confidential capacity to, or have
separate labor organizations of their own. 29
access to confidential matters of, persons who exercise managerial
functions in the field of labor relations. As such, the rationale behind the
This provision is the result of the amendment of the Labor Code in 1989 by R.A. ineligibility of managerial employees to form, assist or joint a labor
No. 6715, otherwise known as the Herrera-Veloso Law. Unlike the Industrial union equally applies to them.
Peace Act or the provisions of the Labor Code which it superseded, R.A. No.
6715 provides separate definitions of the terms "managerial" and "supervisory
In Bulletin Publishing Co., Inc. v. Hon. Augusto Sanchez, this Court
employees," as follows:
elaborated on this rationale, thus:
Art. 212. Definitions. . . .
. . . The rationale for this inhibition has been stated to
be, because if these managerial employees would
belong to or be affiliated with a Union, the latter might
not be assured of their loyalty to the Union in view of
evident conflict of interests. The Union can also
become company-dominated with the presence of
managerial employees in Union membership. 32

To be sure, the Court in Philips Industrial was dealing with the right of
confidential employees to organize. But the same reason for denying them the
right to organize justifies even more the ban on managerial employees from
forming unions. After all, those who qualify as top or middle managers are
executives who receive from their employers information that not only is
confidential but also is not generally available to the public, or to their
competitors, or to other employees. It is hardly necessary to point out that to say
that the first sentence of Art. 245 is unconstitutional would be to contradict the
decision in that case.

WHEREFORE, the petition is DISMISSED.


Narvasa, C.J., Regalado, Romero, Bellosillo, Martinez and Purisima, JJ.,

Republic of the Philippines as Executive Secretary; and HON. ROBERTO B. DE OCAMPO, in his
SUPREME COURT capacity as Secretary of Finance, respondents.
G.R. No. 115754 October 30, 1995
(CREBA), petitioner,
G.R. No. 115455 October 30, 1995 THE COMMISSIONER OF INTERNAL REVENUE, respondent.

ARTURO M. TOLENTINO, petitioner, G.R. No. 115781 October 30, 1995

G.R. No. 115525 October 30, 1995 TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V.
OCAMPO, as Secretary of Finance; LIWAYWAY VINZONS-CHATO, as WIGBERTO TAÑADA,petitioners,
Commissioner of Internal Revenue; and their AUTHORIZED AGENTS vs.
G.R. No. 115543 October 30, 1995
G.R. No. 115852 October 30, 1995
PHILIPPINES, petitioners,
vs. PHILIPPINE AIRLINES, INC., petitioner,
BUREAU OF CUSTOMS, respondents. REVENUE, respondents.

G.R. No. 115544 October 30, 1995 G.R. No. 115873 October 30, 1995

JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L. HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of
DIMALANTA, petitioners, Internal Revenue, HON. TEOFISTO T. GUINGONA, JR., in his capacity as
vs. Executive Secretary, and HON. ROBERTO B. DE OCAMPO, in his
HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of capacity as Secretary of Finance, respondents.
Internal Revenue; HON. TEOFISTO T. GUINGONA, JR., in his capacity
G.R. No. 115931 October 30, 1995
vs. The enactment of S. No. 1630 is not the only instance in which the Senate
HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. proposed an amendment to a House revenue bill by enacting its own version of a
LIWAYWAY V. CHATO, as the Commissioner of Internal Revenue; and revenue bill. On at least two occasions during the Eighth Congress, the Senate
HON. GUILLERMO PARAYNO, JR., in his capacity as the Commissioner passed its own version of revenue bills, which, in consolidation with House bills
of Customs, respondents. earlier passed, became the enrolled bills. These were:

CAPITAL EQUIPMENT) which was approved by the President on April 10,
These are motions seeking reconsideration of our decision dismissing the 1992. This Act is actually a consolidation of H. No. 34254, which was approved
petitions filed in these cases for the declaration of unconstitutionality of R.A. No. by the House on January 29, 1992, and S. No. 1920, which was approved by the
7716, otherwise known as the Expanded Value-Added Tax Law. The motions, of Senate on February 3, 1992.
which there are 10 in all, have been filed by the several petitioners in these
cases, with the exception of the Philippine Educational Publishers Association, R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER
Inc. and the Association of Philippine Booksellers, petitioners in G.R. No. SHALL GIVE REWARD TO ANY FILIPINO ATHLETE WINNING A
115931. MEDAL IN OLYMPIC GAMES) which was approved by the President on May
22, 1992. This Act is a consolidation of H. No. 22232, which was approved by
The Solicitor General, representing the respondents, filed a consolidated the House of Representatives on August 2, 1989, and S. No. 807, which was
comment, to which the Philippine Airlines, Inc., petitioner in G.R. No. 115852, approved by the Senate on October 21, 1991.
and the Philippine Press Institute, Inc., petitioner in G.R. No. 115544, and Juan
T. David, petitioner in G.R. No. 115525, each filed a reply. In turn the Solicitor On the other hand, the Ninth Congress passed revenue laws which were also the
General filed on June 1, 1995 a rejoinder to the PPI's reply. result of the consolidation of House and Senate bills. These are the following,
with indications of the dates on which the laws were approved by the President
On June 27, 1995 the matter was submitted for resolution. and dates the separate bills of the two chambers of Congress were respectively
I. Power of the Senate to propose amendments to revenue bills. Some of the
petitioners (Tolentino, Kilosbayan, Inc., Philippine Airlines (PAL), Roco, and 1. R.A. NO. 7642
Chamber of Real Estate and Builders Association (CREBA)) reiterate previous
claims made by them that R.A. No. 7716 did not "originate exclusively" in the AN ACT INCREASING THE PENALTIES FOR TAX
House of Representatives as required by Art. VI, §24 of the Constitution. EVASION, AMENDING FOR THIS PURPOSE THE
Although they admit that H. No. 11197 was filed in the House of PERTINENT SECTIONS OF THE NATIONAL INTERNAL
Representatives where it passed three readings and that afterward it was sent to REVENUE CODE (December 28, 1992).
the Senate where after first reading it was referred to the Senate Ways and
Means Committee, they complain that the Senate did not pass it on second and House Bill No. 2165, October 5, 1992
third readings. Instead what the Senate did was to pass its own version (S. No.
1630) which it approved on May 24, 1994. Petitioner Tolentino adds that what Senate Bill No. 32, December 7, 1992
the Senate committee should have done was to amend H. No. 11197 by striking
out the text of the bill and substituting it with the text of S. No. 1630. That way,
2. R.A. NO. 7643
it is said, "the bill remains a House bill and the Senate version just becomes the
text (only the text) of the House bill."
REVENUE CODE (December 28, 1992) House Bill No. 11024, November 3, 1993

House Bill No. 1503, September 3, 1992 Senate Bill No. 1168, November 3, 1993

Senate Bill No. 968, December 7, 1992 6. R.A. NO. 7660


REVENUE CODE, AS AMENDED (February 24, 1993)
House Bill No. 7789, May 31, 1993
House Bill No. 1470, October 20, 1992
Senate Bill No. 1330, November 18, 1993
Senate Bill No. 35, November 19, 1992
7. R.A. NO. 7717
4. R.A. NO. 7649
RENDERED BY CONTRACTORS (April 6, 1993) House Bill No. 9187, November 3, 1993

House Bill No. 5260, January 26, 1993 Senate Bill No. 1127, March 23, 1994

Senate Bill No. 1141, March 30, 1993 Thus, the enactment of S. No. 1630 is not the only instance in which the Senate,
in the exercise of its power to propose amendments to bills required to originate
5. R.A. NO. 7656 in the House, passed its own version of a House revenue measure. It is
noteworthy that, in the particular case of S. No. 1630, petitioners Tolentino and Art. I, §7, cl. 1 of the U.S. Constitution reads:
Roco, as members of the Senate, voted to approve it on second and third
readings. All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with
On the other hand, amendment by substitution, in the manner urged by petitioner amendments as on other Bills.
Tolentino, concerns a mere matter of form. Petitioner has not shown what
substantial difference it would make if, as the Senate actually did in this case, a Art. VI, §24 of our Constitution reads:
separate bill like S. No. 1630 is instead enacted as a substitute measure, "taking
into Consideration . . . H.B. 11197." All appropriation, revenue or tariff bills, bills authorizing
increase of the public debt, bills of local application, and private
Indeed, so far as pertinent, the Rules of the Senate only provide: bills shall originate exclusively in the House of Representatives,
but the Senate may propose or concur with amendments.
The addition of the word "exclusively" in the Philippine Constitution and the
AMENDMENTS decision to drop the phrase "as on other Bills" in the American version,
according to petitioners, shows the intention of the framers of our Constitution to
xxx xxx xxx restrict the Senate's power to propose amendments to revenue bills. Petitioner
Tolentino contends that the word "exclusively" was inserted to modify
§68. Not more than one amendment to the original amendment "originate" and "the words 'as in any other bills' (sic) were eliminated so as to
shall be considered. show that these bills were not to be like other bills but must be treated as a
special kind."
No amendment by substitution shall be entertained unless the
text thereof is submitted in writing. The history of this provision does not support this contention. The
supposed indicia of constitutional intent are nothing but the relics of an
unsuccessful attempt to limit the power of the Senate. It will be recalled that the
Any of said amendments may be withdrawn before a vote is
1935 Constitution originally provided for a unicameral National Assembly.
taken thereon.
When it was decided in 1939 to change to a bicameral legislature, it became
necessary to provide for the procedure for lawmaking by the Senate and the
§69. No amendment which seeks the inclusion of a legislative House of Representatives. The work of proposing amendments to the
provision foreign to the subject matter of a bill (rider) shall be Constitution was done by the National Assembly, acting as a constituent
entertained. assembly, some of whose members, jealous of preserving the Assembly's
lawmaking powers, sought to curtail the powers of the proposed Senate.
xxx xxx xxx Accordingly they proposed the following provision:

§70-A. A bill or resolution shall not be amended by substituting All bills appropriating public funds, revenue or tariff bills, bills
it with another which covers a subject distinct from that of local application, and private bills shall originate exclusively
proposed in the original bill or resolution. (emphasis added). in the Assembly, but the Senate may propose or concur with
amendments. In case of disapproval by the Senate of any such
Nor is there merit in petitioners' contention that, with regard to revenue bills, the bills, the Assembly may repass the same by a two-thirds vote of
Philippine Senate possesses less power than the U.S. Senate because of textual all its members, and thereupon, the bill so repassed shall be
differences between constitutional provisions giving them the power to propose deemed enacted and may be submitted to the President for
or concur with amendments. corresponding action. In the event that the Senate should fail to
finally act on any such bills, the Assembly may, after thirty
days from the opening of the next regular session of the same (L. TAÑADA AND F. CARREON, POLITICAL LAW OF
legislative term, reapprove the same with a vote of two-thirds of THE PHILIPPINES 247 (1961))
all the members of the Assembly. And upon such reapproval,
the bill shall be deemed enacted and may be submitted to the The above-mentioned bills are supposed to be initiated by the
President for corresponding action. House of Representatives because it is more numerous in
membership and therefore also more representative of the
The special committee on the revision of laws of the Second National Assembly people. Moreover, its members are presumed to be more
vetoed the proposal. It deleted everything after the first sentence. As rewritten, familiar with the needs of the country in regard to the
the proposal was approved by the National Assembly and embodied in enactment of the legislation involved.
Resolution No. 38, as amended by Resolution No. 73. (J. ARUEGO, KNOW
YOUR CONSTITUTION 65-66 (1950)). The proposed amendment was The Senate is, however, allowed much leeway in the exercise of
submitted to the people and ratified by them in the elections held on June 18, its power to propose or concur with amendments to the bills
1940. initiated by the House of Representatives. Thus, in one case, a
bill introduced in the U.S. House of Representatives was
This is the history of Art. VI, §18 (2) of the 1935 Constitution, from which Art. changed by the Senate to make a proposed inheritance tax a
VI, §24 of the present Constitution was derived. It explains why the word corporation tax. It is also accepted practice for the Senate to
"exclusively" was added to the American text from which the framers of the introduce what is known as an amendment by substitution,
Philippine Constitution borrowed and why the phrase "as on other Bills" was not which may entirely replace the bill initiated in the House of
copied. Considering the defeat of the proposal, the power of the Senate to Representatives.
propose amendments must be understood to be full, plenary and complete "as on
other Bills." Thus, because revenue bills are required to originate exclusively in (I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).
the House of Representatives, the Senate cannot enact revenue measures of its
own without such bills. After a revenue bill is passed and sent over to it by the In sum, while Art. VI, §24 provides that all appropriation, revenue or tariff bills,
House, however, the Senate certainly can pass its own version on the same bills authorizing increase of the public debt, bills of local application, and private
subject matter. This follows from the coequality of the two chambers of bills must "originate exclusively in the House of Representatives," it also adds,
Congress. "but the Senate may propose or concur with amendments." In the exercise of this
power, the Senate may propose an entirely new bill as a substitute measure. As
That this is also the understanding of book authors of the scope of the Senate's petitioner Tolentino states in a high school text, a committee to which a bill is
power to concur is clear from the following commentaries: referred may do any of the following:

The power of the Senate to propose or concur with amendments (1) to endorse the bill without changes; (2) to make changes in
is apparently without restriction. It would seem that by virtue of the bill omitting or adding sections or altering its language; (3)
this power, the Senate can practically re-write a bill required to to make and endorse an entirely new bill as a substitute, in
come from the House and leave only a trace of the original bill. which case it will be known as a committee bill; or (4) to make
For example, a general revenue bill passed by the lower house no report at all.
of the United States Congress contained provisions for the
imposition of an inheritance tax . This was changed by the (A. TOLENTINO, THE GOVERNMENT OF THE
Senate into a corporation tax. The amending authority of the PHILIPPINES 258 (1950))
Senate was declared by the United States Supreme Court to be
sufficiently broad to enable it to make the alteration. [Flint v.
To except from this procedure the amendment of bills which are required to
Stone Tracy Company, 220 U.S. 107, 55 L. ed. 389].
originate in the House by prescribing that the number of the House bill and its
other parts up to the enacting clause must be preserved although the text of the
Senate amendment may be incorporated in place of the original body of the bill
is to insist on a mere technicality. At any rate there is no rule prescribing this particular instance does not refer to investments in government
form. S. No. 1630, as a substitute measure, is therefore as much an amendment securities, whereas the bill in the House, which was introduced
of H. No. 11197 as any which the Senate could have made. by the Speaker, covers two subject matters: not only
investigation of deposits in banks but also investigation of
II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is that investments in government securities. Now, since the two bills
they assume that S. No. 1630 is an independent and distinct bill. Hence their differ in their subject matter, I believe that no law can be
repeated references to its certification that it was passed by the Senate enacted.
"in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734
and H.B. No. 11197," implying that there is something substantially different Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:
between the reference to S. No. 1129 and the reference to H. No. 11197. From
this premise, they conclude that R.A. No. 7716 originated both in the House and THE SPEAKER. The report of the conference committee is in
in the Senate and that it is the product of two "half-baked bills because neither H. order. It is precisely in cases like this where a conference
No. 11197 nor S. No. 1630 was passed by both houses of Congress." should be had. If the House bill had been approved by the
Senate, there would have been no need of a conference; but
In point of fact, in several instances the provisions of S. No. 1630, clearly appear precisely because the Senate passed another bill on the same
to be mere amendments of the corresponding provisions of H. No. 11197. The subject matter, the conference committee had to be created, and
very tabular comparison of the provisions of H. No. 11197 and S. No. 1630 we are now considering the report of that committee.
attached as Supplement A to the basic petition of petitioner Tolentino, while
showing differences between the two bills, at the same time indicates that the (2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis
provisions of the Senate bill were precisely intended to be amendments to the added))
House bill.
III. The President's certification. The fallacy in thinking that H. No. 11197 and
Without H. No. 11197, the Senate could not have enacted S. No. 1630. Because S. No. 1630 are distinct and unrelated measures also accounts for the petitioners'
the Senate bill was a mere amendment of the House bill, H. No. 11197 in its (Kilosbayan's and PAL's) contention that because the President separately
original form did not have to pass the Senate on second and three readings. It certified to the need for the immediate enactment of these measures, his
was enough that after it was passed on first reading it was referred to the Senate certification was ineffectual and void. The certification had to be made of the
Committee on Ways and Means. Neither was it required that S. No. 1630 be version of the same revenue bill which at the momentwas being considered.
passed by the House of Representatives before the two bills could be referred to Otherwise, to follow petitioners' theory, it would be necessary for the President
the Conference Committee. to certify as many bills as are presented in a house of Congress even though the
bills are merely versions of the bill he has already certified. It is enough that he
There is legislative precedent for what was done in the case of H. No. 11197 and certifies the bill which, at the time he makes the certification, is under
S. No. 1630. When the House bill and Senate bill, which became R.A. No. 1405 consideration. Since on March 22, 1994 the Senate was considering S. No. 1630,
(Act prohibiting the disclosure of bank deposits), were referred to a conference it was that bill which had to be certified. For that matter on June 1, 1993 the
committee, the question was raised whether the two bills could be the subject of President had earlier certified H. No. 9210 for immediate enactment because it
such conference, considering that the bill from one house had not been passed by was the one which at that time was being considered by the House. This bill was
the other and vice versa. As Congressman Duran put the question: later substituted, together with other bills, by H. No. 11197.

MR. DURAN. Therefore, I raise this question of order as to As to what Presidential certification can accomplish, we have already explained
procedure: If a House bill is passed by the House but not passed in the main decision that the phrase "except when the President certifies to the
by the Senate, and a Senate bill of a similar nature is passed in necessity of its immediate enactment, etc." in Art. VI, §26 (2) qualifies not only
the Senate but never passed in the House, can the two bills be the requirement that "printed copies [of a bill] in its final form [must be]
the subject of a conference, and can a law be enacted from distributed to the members three days before its passage" but also the
these two bills? I understand that the Senate bill in this requirement that before a bill can become a law it must have passed "three
readings on separate days." There is not only textual support for such occurrence of the very emergency or public calamity which it is meant to
construction but historical basis as well. address.

Art. VI, §21 (2) of the 1935 Constitution originally provided: Petitioners further contend that a "growing budget deficit" is not an emergency,
especially in a country like the Philippines where budget deficit is a chronic
(2) No bill shall be passed by either House unless it shall have condition. Even if this were the case, an enormous budget deficit does not make
been printed and copies thereof in its final form furnished its the need for R.A. No. 7716 any less urgent or the situation calling for its
Members at least three calendar days prior to its passage, except enactment any less an emergency.
when the President shall have certified to the necessity of its
immediate enactment. Upon the last reading of a bill, no Apparently, the members of the Senate (including some of the petitioners in
amendment thereof shall be allowed and the question upon its these cases) believed that there was an urgent need for consideration of S. No.
passage shall be taken immediately thereafter, and 1630, because they responded to the call of the President by voting on the bill on
the yeas and nays entered on the Journal. second and third readings on the same day. While the judicial department is not
bound by the Senate's acceptance of the President's certification, the respect due
When the 1973 Constitution was adopted, it was provided in Art. VIII, §19 (2): coequal departments of the government in matters committed to them by the
Constitution and the absence of a clear showing of grave abuse of discretion
(2) No bill shall become a law unless it has passed three caution a stay of the judicial hand.
readings on separate days, and printed copies thereof in its final
form have been distributed to the Members three days before its At any rate, we are satisfied that S. No. 1630 received thorough consideration in
passage, except when the Prime Minister certifies to the the Senate where it was discussed for six days. Only its distribution in advance
necessity of its immediate enactment to meet a public calamity in its final printed form was actually dispensed with by holding the voting on
or emergency. Upon the last reading of a bill, no amendment second and third readings on the same day (March 24, 1994). Otherwise,
thereto shall be allowed, and the vote thereon shall be taken sufficient time between the submission of the bill on February 8, 1994 on second
immediately thereafter, and the yeas and nays entered in the reading and its approval on March 24, 1994 elapsed before it was finally voted
Journal. on by the Senate on third reading.

This provision of the 1973 document, with slight modification, was adopted in The purpose for which three readings on separate days is required is said to be
Art. VI, §26 (2) of the present Constitution, thus: two-fold: (1) to inform the members of Congress of what they must vote on and
(2) to give them notice that a measure is progressing through the enacting
(2) No bill passed by either House shall become a law unless it process, thus enabling them and others interested in the measure to prepare their
has passed three readings on separate days, and printed copies positions with reference to it. (1 J. G. SUTHERLAND, STATUTES AND
thereof in its final form have been distributed to its Members STATUTORY CONSTRUCTION §10.04, p. 282 (1972)). These purposes were
three days before its passage, except when the President substantially achieved in the case of R.A. No. 7716.
certifies to the necessity of its immediate enactment to meet a
public calamity or emergency. Upon the last reading of a bill, IV. Power of Conference Committee. It is contended (principally by Kilosbayan,
no amendment thereto shall be allowed, and the vote thereon Inc. and the Movement of Attorneys for Brotherhood, Integrity and Nationalism,
shall be taken immediately thereafter, and Inc. (MABINI)) that in violation of the constitutional policy of full public
the yeasand nays entered in the Journal. disclosure and the people's right to know (Art. II, §28 and Art. III, §7) the
Conference Committee met for two days in executive session with only the
The exception is based on the prudential consideration that if in all cases three conferees present.
readings on separate days are required and a bill has to be printed in final form
before it can be passed, the need for a law may be rendered academic by the As pointed out in our main decision, even in the United States it was customary
to hold such sessions with only the conferees and their staffs in attendance and it
was only in 1975 when a new rule was adopted requiring open sessions. Unlike There is no question about the provision of the Rule cited by
its American counterpart, the Philippine Congress has not adopted a rule the gentleman from Pangasinan, but this provision applies to
prescribing open hearings for conference committees. those cases where only portions of the bill have been
amended. In this case before us an entire bill is
It is nevertheless claimed that in the United States, before the adoption of the presented; therefore, it can be easily seen from the reading of
rule in 1975, at least staff members were present. These were staff members of the bill what the provisions are. Besides, this procedure has
the Senators and Congressmen, however, who may be presumed to be their been an established practice.
confidential men, not stenographers as in this case who on the last two days of
the conference were excluded. There is no showing that the conferees themselves After some interruption, he continued:
did not take notes of their proceedings so as to give petitioner Kilosbayan basis
for claiming that even in secret diplomatic negotiations involving state interests, MR. TOLENTINO. As I was saying, Mr. Speaker, we have to
conferees keep notes of their meetings. Above all, the public's right to know was look into the reason for the provisions of the Rules, and the
fully served because the Conference Committee in this case submitted a report reason for the requirement in the provision cited by the
showing the changes made on the differing versions of the House and the Senate. gentleman from Pangasinan is when there are only certain
words or phrases inserted in or deleted from the provisions of
Petitioners cite the rules of both houses which provide that conference the bill included in the conference report, and we cannot
committee reports must contain "a detailed, sufficiently explicit statement of the understand what those words and phrases mean and their
changes in or other amendments." These changes are shown in the bill attached relation to the bill. In that case, it is necessary to make a
to the Conference Committee Report. The members of both houses could thus detailed statement on how those words and phrases will affect
ascertain what changes had been made in the original bills without the need of a the bill as a whole; but when the entire bill itself is copied
statement detailing the changes. verbatim in the conference report, that is not necessary. So
when the reason for the Rule does not exist, the Rule does not
The same question now presented was raised when the bill which became R.A. exist.
No. 1400 (Land Reform Act of 1955) was reported by the Conference
Committee. Congressman Bengzon raised a point of order. He said: (2 CONG. REC. NO. 2, p. 4056. (emphasis added))

MR. BENGZON. My point of order is that it is out of order to Congressman Tolentino was sustained by the chair. The record shows that when
consider the report of the conference committee the ruling was appealed, it was upheld by viva voce and when a division of the
regarding House Bill No. 2557 by reason of the provision of House was called, it was sustained by a vote of 48 to 5. (Id.,
Section 11, Article XII, of the Rules of this House which p. 4058)
provides specifically that the conference report must be
accompanied by a detailed statement of the effects of the Nor is there any doubt about the power of a conference committee to insert new
amendment on the bill of the House. This conference committee provisions as long as these are germane to the subject of the conference. As this
report is not accompanied by that detailed statement, Mr. Court held in Philippine Judges Association v. Prado, 227 SCRA 703 (1993), in
Speaker. Therefore it is out of order to consider it. an opinion written by then Justice Cruz, the jurisdiction of the conference
committee is not limited to resolving differences between the Senate and the
Petitioner Tolentino, then the Majority Floor Leader, answered: House. It may propose an entirely new provision. What is important is that its
report is subsequently approved by the respective houses of Congress. This
MR. TOLENTINO. Mr. Speaker, I should just like to say a few Court ruled that it would not entertain allegations that, because new provisions
words in connection with the point of order raised by the had been added by the conference committee, there was thereby a violation of
gentleman from Pangasinan. the constitutional injunction that "upon the last reading of a bill, no amendment
thereto shall be allowed."
Applying these principles, we shall decline to look into the including those of its committees. Any meaningful change in the method and
petitioners' charges that an amendment was made upon the last procedures of Congress or its committees must therefore be sought in that body
reading of the bill that eventually became R.A. No. 7354 and itself.
that copiesthereof in its final form were not distributed among
the members of each House. Both the enrolled bill and the V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No.
legislative journals certify that the measure was duly 7716 violates Art. VI, §26 (1) of the Constitution which provides that "Every bill
enacted i.e., in accordance with Article VI, Sec. 26 (2) of the passed by Congress shall embrace only one subject which shall be expressed in
Constitution. We are bound by such official assurances from a the title thereof." PAL contends that the amendment of its franchise by the
coordinate department of the government, to which we owe, at withdrawal of its exemption from the VAT is not expressed in the title of the
the very least, a becoming courtesy. law.

(Id. at 710. (emphasis added)) Pursuant to §13 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross
revenue "in lieu of all other taxes, duties, royalties, registration, license and other
It is interesting to note the following description of conference committees in the fees and charges of any kind, nature, or description, imposed, levied, established,
Philippines in a 1979 study: assessed or collected by any municipal, city, provincial or national authority or
government agency, now or in the future."
Conference committees may be of two types: free or instructed.
These committees may be given instructions by their parent PAL was exempted from the payment of the VAT along with other entities by
bodies or they may be left without instructions. Normally the §103 of the National Internal Revenue Code, which provides as follows:
conference committees are without instructions, and this is why
they are often critically referred to as "the little legislatures." §103. Exempt transactions. — The following shall be exempt
Once bills have been sent to them, the conferees have almost from the value-added tax:
unlimited authority to change the clauses of the bills and in fact
sometimes introduce new measures that were not in the original xxx xxx xxx
legislation. No minutes are kept, and members' activities on
conference committees are difficult to determine. One
(q) Transactions which are exempt under special laws or
congressman known for his idealism put it this way: "I killed a
international agreements to which the Philippines is a signatory.
bill on export incentives for my interest group [copra] in the
conference committee but I could not have done so anywhere
else." The conference committee submits a report to both R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to
houses, and usually it is accepted. If the report is not accepted, PAL, by amending §103, as follows:
then the committee is discharged and new members are
appointed. §103. Exempt transactions. — The following shall be exempt
from the value-added tax:
(R. Jackson, Committees in the Philippine Congress, in
ANALYSIS 163 (J. D. LEES AND M. SHAW, eds.)).
(q) Transactions which are exempt under special laws, except
In citing this study, we pass no judgment on the methods of conference those granted under Presidential Decree Nos. 66, 529, 972,
committees. We cite it only to say that conference committees here are no 1491, 1590. . . .
different from their counterparts in the United States whose vast powers we
noted in Philippine Judges Association v. Prado, supra. At all events, under Art. The amendment of §103 is expressed in the title of R.A. No. 7716 which reads:
VI, §16(3) each house has the power "to determine the rules of its proceedings,"
AN ACT RESTRUCTURING THE VALUE-ADDED TAX The details of a legislative act need not be
(VAT) SYSTEM, WIDENING ITS TAX BASE AND specifically stated in its title, but matter
ENHANCING ITS ADMINISTRATION, AND FOR THESE germane to the subject as expressed in the title,
PURPOSES AMENDING AND REPEALING THE and adopted to the accomplishment of the
RELEVANT PROVISIONS OF THE NATIONAL object in view, may properly be included in
INTERNAL REVENUE CODE, AS AMENDED, AND FOR the act. Thus, it is proper to create in the same
OTHER PURPOSES. act the machinery by which the act is to be
enforced, to prescribe the penalties for its
By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE- infraction, and to remove obstacles in the way
ADDED TAX (VAT) SYSTEM [BY] WIDENING ITS TAX BASE AND of its execution. If such matters are properly
ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES connected with the subject as expressed in the
AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE title, it is unnecessary that they should also
NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR have special mention in the title. (Southern
OTHER PURPOSES," Congress thereby clearly expresses its intention to amend Pac. Co. v. Bartine, 170 Fed. 725)
any provision of the NIRC which stands in the way of accomplishing the
purpose of the law. (227 SCRA at 707-708)

PAL asserts that the amendment of its franchise must be reflected in the title of VI. Claims of press freedom and religious liberty. We have held that, as a
the law by specific reference to P.D. No. 1590. It is unnecessary to do this in general proposition, the press is not exempt from the taxing power of the State
order to comply with the constitutional requirement, since it is already stated in and that what the constitutional guarantee of free press prohibits are laws which
the title that the law seeks to amend the pertinent provisions of the NIRC, among single out the press or target a group belonging to the press for special treatment
which is §103(q), in order to widen the base of the VAT. Actually, it is the bill or which in any way discriminate against the press on the basis of the content of
which becomes a law that is required to express in its title the subject of the publication, and R.A. No. 7716 is none of these.
legislation. The titles of H. No. 11197 and S. No. 1630 in fact specifically
referred to §103 of the NIRC as among the provisions sought to be amended. We Now it is contended by the PPI that by removing the exemption of the press from
are satisfied that sufficient notice had been given of the pendency of these bills the VAT while maintaining those granted to others, the law discriminates against
in Congress before they were enacted into what is now R.A. the press. At any rate, it is averred, "even nondiscriminatory taxation of
No. 7716. constitutionally guaranteed freedom is unconstitutional."

In Philippine Judges Association v. Prado, supra, a similar argument as that now With respect to the first contention, it would suffice to say that since the law
made by PAL was rejected. R.A. No. 7354 is entitled AN ACT CREATING granted the press a privilege, the law could take back the privilege anytime
THE PHILIPPINE POSTAL CORPORATION, DEFINING ITS POWERS, without offense to the Constitution. The reason is simple: by granting
FUNCTIONS AND RESPONSIBILITIES, PROVIDING FOR REGULATION exemptions, the State does not forever waive the exercise of its sovereign
THEREWITH. It contained a provision repealing all franking privileges. It was
contended that the withdrawal of franking privileges was not expressed in the Indeed, in withdrawing the exemption, the law merely subjects the press to the
title of the law. In holding that there was sufficient description of the subject of same tax burden to which other businesses have long ago been subject. It is thus
the law in its title, including the repeal of franking privileges, this Court held: different from the tax involved in the cases invoked by the PPI. The license tax
in Grosjean v. American Press Co., 297 U.S. 233, 80 L. Ed. 660 (1936) was
To require every end and means necessary for the found to be discriminatory because it was laid on the gross advertising receipts
accomplishment of the general objectives of the statute to be only of newspapers whose weekly circulation was over 20,000, with the result
expressed in its title would not only be unreasonable but would that the tax applied only to 13 out of 124 publishers in Louisiana. These large
actually render legislation impossible. [Cooley, Constitutional papers were critical of Senator Huey Long who controlled the state legislature
Limitations, 8th Ed., p. 297] As has been correctly explained:
which enacted the license tax. The censorial motivation for the law was thus professional use, like professional instruments and implements,
evident. by persons coming to the Philippines to settle here.

On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of (c) Goods subject to excise tax such as petroleum products or to
Revenue, 460 U.S. 575, 75 L. Ed. 2d 295 (1983), the tax was found to be be used for manufacture of petroleum products subject to excise
discriminatory because although it could have been made liable for the sales tax tax and services subject to percentage tax.
or, in lieu thereof, for the use tax on the privilege of using, storing or consuming
tangible goods, the press was not. Instead, the press was exempted from both (d) Educational services, medical, dental, hospital and
taxes. It was, however, later made to pay a special use tax on the cost of paper veterinary services, and services rendered under employer-
and ink which made these items "the only items subject to the use tax that were employee relationship.
component of goods to be sold at retail." The U.S. Supreme Court held that the
differential treatment of the press "suggests that the goal of regulation is not (e) Works of art and similar creations sold by the artist himself.
related to suppression of expression, and such goal is presumptively
unconstitutional." It would therefore appear that even a law that favors the press
(f) Transactions exempted under special laws, or international
is constitutionally suspect. (See the dissent of Rehnquist, J. in that case)
Nor is it true that only two exemptions previously granted by E.O. No. 273 are
(g) Export-sales by persons not VAT-registered.
withdrawn "absolutely and unqualifiedly" by R.A. No. 7716. Other exemptions
from the VAT, such as those previously granted to PAL, petroleum
concessionaires, enterprises registered with the Export Processing Zone (h) Goods or services with gross annual sale or receipt not
Authority, and many more are likewise totally withdrawn, in addition to exceeding P500,000.00.
exemptions which are partially withdrawn, in an effort to broaden the base of the
tax. (Respondents' Consolidated Comment on the Motions for
Reconsideration, pp. 58-60)
The PPI says that the discriminatory treatment of the press is highlighted by the
fact that transactions, which are profit oriented, continue to enjoy exemption The PPI asserts that it does not really matter that the law does not discriminate
under R.A. No. 7716. An enumeration of some of these transactions will suffice against the press because "even nondiscriminatory taxation on constitutionally
to show that by and large this is not so and that the exemptions are granted for a guaranteed freedom is unconstitutional." PPI cites in support of this assertion the
purpose. As the Solicitor General says, such exemptions are granted, in some following statement in Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292
cases, to encourage agricultural production and, in other cases, for the personal (1943):
benefit of the end-user rather than for profit. The exempt transactions are:
The fact that the ordinance is "nondiscriminatory" is
(a) Goods for consumption or use which are in their original immaterial. The protection afforded by the First Amendment is
state (agricultural, marine and forest products, cotton seeds in not so restricted. A license tax certainly does not acquire
their original state, fertilizers, seeds, seedlings, fingerlings, fish, constitutional validity because it classifies the privileges
prawn livestock and poultry feeds) and goods or services to protected by the First Amendment along with the wares and
enhance agriculture (milling of palay, corn, sugar cane and raw merchandise of hucksters and peddlers and treats them all alike.
sugar, livestock, poultry feeds, fertilizer, ingredients used for Such equality in treatment does not save the ordinance.
the manufacture of feeds). Freedom of press, freedom of speech, freedom of religion are in
preferred position.
(b) Goods used for personal consumption or use (household and
personal effects of citizens returning to the Philippines) or for The Court was speaking in that case of a license tax, which, unlike an ordinary
tax, is mainly for regulation. Its imposition on the press is unconstitutional
because it lays a prior restraint on the exercise of its right. Hence, although its
application to others, such those selling goods, is valid, its application to the reasonable basis and (3) violates the rule that taxes should be uniform and
press or to religious groups, such as the Jehovah's Witnesses, in connection with equitable and that Congress shall "evolve a progressive system of taxation."
the latter's sale of religious books and pamphlets, is unconstitutional. As the U.S.
Supreme Court put it, "it is one thing to impose a tax on income or property of a With respect to the first contention, it is claimed that the application of the tax to
preacher. It is quite another thing to exact a tax on him for delivering a sermon." existing contracts of the sale of real property by installment or on deferred
payment basis would result in substantial increases in the monthly amortizations
A similar ruling was made by this Court in American Bible Society v. City of to be paid because of the 10% VAT. The additional amount, it is pointed out, is
Manila, 101 Phil. 386 (1957) which invalidated a city ordinance requiring a something that the buyer did not anticipate at the time he entered into the
business license fee on those engaged in the sale of general merchandise. It was contract.
held that the tax could not be imposed on the sale of bibles by the American
Bible Society without restraining the free exercise of its right to propagate. The short answer to this is the one given by this Court in an early case:
"Authorities from numerous sources are cited by the plaintiffs, but none of them
The VAT is, however, different. It is not a license tax. It is not a tax on the show that a lawful tax on a new subject, or an increased tax on an old one,
exercise of a privilege, much less a constitutional right. It is imposed on the sale, interferes with a contract or impairs its obligation, within the meaning of the
barter, lease or exchange of goods or properties or the sale or exchange of Constitution. Even though such taxation may affect particular contracts, as it
services and the lease of properties purely for revenue purposes. To subject the may increase the debt of one person and lessen the security of another, or may
press to its payment is not to burden the exercise of its right any more than to impose additional burdens upon one class and release the burdens of another,
make the press pay income tax or subject it to general regulation is not to violate still the tax must be paid unless prohibited by the Constitution, nor can it be said
its freedom under the Constitution. that it impairs the obligation of any existing contract in its true legal sense." (La
Insular v. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil. 567, 574 (1919)).
Additionally, the Philippine Bible Society, Inc. claims that although it sells Indeed not only existing laws but also "the reservation of the essential attributes
bibles, the proceeds derived from the sales are used to subsidize the cost of of sovereignty, is . . . read into contracts as a postulate of the legal order."
printing copies which are given free to those who cannot afford to pay so that to (Philippine-American Life Ins. Co. v. Auditor General, 22 SCRA 135, 147
tax the sales would be to increase the price, while reducing the volume of sale. (1968)) Contracts must be understood as having been made in reference to the
Granting that to be the case, the resulting burden on the exercise of religious possible exercise of the rightful authority of the government and no obligation of
freedom is so incidental as to make it difficult to differentiate it from any other contract can extend to the defeat of that authority. (Norman v. Baltimore and
economic imposition that might make the right to disseminate religious doctrines Ohio R.R., 79 L. Ed. 885 (1935)).
costly. Otherwise, to follow the petitioner's argument, to increase the tax on the
sale of vestments would be to lay an impermissible burden on the right of the It is next pointed out that while §4 of R.A. No. 7716 exempts such transactions
preacher to make a sermon. as the sale of agricultural products, food items, petroleum, and medical and
veterinary services, it grants no exemption on the sale of real property which is
On the other hand the registration fee of P1,000.00 imposed by §107 of the equally essential. The sale of real property for socialized and low-cost housing is
NIRC, as amended by §7 of R.A. No. 7716, although fixed in amount, is really exempted from the tax, but CREBA claims that real estate transactions of "the
just to pay for the expenses of registration and enforcement of provisions such as less poor," i.e., the middle class, who are equally homeless, should likewise be
those relating to accounting in §108 of the NIRC. That the PBS distributes free exempted.
bibles and therefore is not liable to pay the VAT does not excuse it from the
payment of this fee because it also sells some copies. At any rate whether the The sale of food items, petroleum, medical and veterinary services, etc., which
PBS is liable for the VAT must be decided in concrete cases, in the event it is are essential goods and services was already exempt under §103, pars. (b) (d) (1)
assessed this tax by the Commissioner of Internal Revenue. of the NIRC before the enactment of R.A. No. 7716. Petitioner is in error in
claiming that R.A. No. 7716 granted exemption to these transactions, while
VII. Alleged violations of the due process, equal protection and contract clauses subjecting those of petitioner to the payment of the VAT. Moreover, there is a
and the rule on taxation. CREBA asserts that R.A. No. 7716 (1) impairs the difference between the "homeless poor" and the "homeless less poor" in the
obligations of contracts, (2) classifies transactions as covered or exempt without example given by petitioner, because the second group or middle class can
afford to rent houses in the meantime that they cannot yet buy their own homes.
The two social classes are thus differently situated in life. "It is inherent in the are expected to be relatively lower and within the reach of the
power to tax that the State be free to select the subjects of taxation, and it has general public.
been repeatedly held that 'inequalities which result from a singling out of one
particular class for taxation, or exemption infringe no constitutional limitation.'" (At 382-383)
(Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord, City of Baguio v. De Leon,
134 Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984); The CREBA claims that the VAT is regressive. A similar claim is made by the
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 Cooperative Union of the Philippines, Inc. (CUP), while petitioner Juan T. David
SCRA 371 (1988)). argues that the law contravenes the mandate of Congress to provide for a
progressive system of taxation because the law imposes a flat rate of 10% and
Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also thus places the tax burden on all taxpayers without regard to their ability to pay.
violates Art. VI, §28(1) which provides that "The rule of taxation shall be
uniform and equitable. The Congress shall evolve a progressive system of The Constitution does not really prohibit the imposition of indirect taxes which,
taxation." like the VAT, are regressive. What it simply provides is that Congress shall
"evolve a progressive system of taxation." The constitutional provision has been
Equality and uniformity of taxation means that all taxable articles or kinds of interpreted to mean simply that "direct taxes are . . . to be preferred [and] as
property of the same class be taxed at the same rate. The taxing power has the much as possible, indirect taxes should be minimized." (E. FERNANDO, THE
authority to make reasonable and natural classifications for purposes of taxation. CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)). Indeed, the
To satisfy this requirement it is enough that the statute or ordinance applies mandate to Congress is not to prescribe, but to evolve, a progressive tax system.
equally to all persons, forms and corporations placed in similar situation. (City of Otherwise, sales taxes, which perhaps are the oldest form of indirect taxes,
Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra) would have been prohibited with the proclamation of Art. VIII, §17(1) of the
1973 Constitution from which the present Art. VI, §28(1) was taken. Sales taxes
Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. are also regressive.
7716 was enacted. R.A. No. 7716 merely expands the base of the tax. The
validity of the original VAT Law was questioned in Kapatiran ng Naglilingkod Resort to indirect taxes should be minimized but not avoided entirely because it
sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 383 (1988) on grounds is difficult, if not impossible, to avoid them by imposing such taxes according to
similar to those made in these cases, namely, that the law was "oppressive, the taxpayers' ability to pay. In the case of the VAT, the law minimizes the
discriminatory, unjust and regressive in violation of Art. VI, §28(1) of the regressive effects of this imposition by providing for zero rating of certain
Constitution." (At 382) Rejecting the challenge to the law, this Court held: transactions (R.A. No. 7716, §3, amending §102 (b) of the NIRC), while
granting exemptions to other transactions. (R.A. No. 7716, §4, amending §103 of
As the Court sees it, EO 273 satisfies all the requirements of a the NIRC).
valid tax. It is uniform. . . .
Thus, the following transactions involving basic and essential goods and services
The sales tax adopted in EO 273 is applied similarly on all are exempted from the VAT:
goods and services sold to the public, which are not exempt, at
the constant rate of 0% or 10%. (a) Goods for consumption or use which are in their original
state (agricultural, marine and forest products, cotton seeds in
The disputed sales tax is also equitable. It is imposed only on their original state, fertilizers, seeds, seedlings, fingerlings, fish,
sales of goods or services by persons engaged in business with prawn livestock and poultry feeds) and goods or services to
an aggregate gross annual sales exceeding P200,000.00. Small enhance agriculture (milling of palay, corn sugar cane and raw
corner sari-sari stores are consequently exempt from its sugar, livestock, poultry feeds, fertilizer, ingredients used for
application. Likewise exempt from the tax are sales of farm and the manufacture of feeds).
marine products, so that the costs of basic food and other
necessities, spared as they are from the incidence of the VAT,
(b) Goods used for personal consumption or use (household and been assessed the VAT. Petitioner's case is not made concrete by a series of
personal effects of citizens returning to the Philippines) and or hypothetical questions asked which are no different from those dealt with in
professional use, like professional instruments and implements, advisory opinions.
by persons coming to the Philippines to settle here.
The difficulty confronting petitioner is thus apparent. He
(c) Goods subject to excise tax such as petroleum products or to alleges arbitrariness. A mere allegation, as here, does not
be used for manufacture of petroleum products subject to excise suffice. There must be a factual foundation of such
tax and services subject to percentage tax. unconstitutional taint. Considering that petitioner here would
condemn such a provision as void on its face, he has not made
(d) Educational services, medical, dental, hospital and out a case. This is merely to adhere to the authoritative doctrine
veterinary services, and services rendered under employer- that where the due process and equal protection clauses are
employee relationship. invoked, considering that they are not fixed rules but rather
broad standards, there is a need for proof of such persuasive
(e) Works of art and similar creations sold by the artist himself. character as would lead to such a conclusion. Absent such a
showing, the presumption of validity must prevail.
(f) Transactions exempted under special laws, or international
agreements. (Sison, Jr. v. Ancheta, 130 SCRA at 661)

(g) Export-sales by persons not VAT-registered. Adjudication of these broad claims must await the development of a concrete
case. It may be that postponement of adjudication would result in a multiplicity
of suits. This need not be the case, however. Enforcement of the law may give
(h) Goods or services with gross annual sale or receipt not
rise to such a case. A test case, provided it is an actual case and not an abstract or
exceeding P500,000.00.
hypothetical one, may thus be presented.
(Respondents' Consolidated Comment on the Motions for
Nor is hardship to taxpayers alone an adequate justification for adjudicating
Reconsideration, pp. 58-60)
abstract issues. Otherwise, adjudication would be no different from the giving of
advisory opinion that does not really settle legal issues.
On the other hand, the transactions which are subject to the VAT are those which
involve goods and services which are used or availed of mainly by higher
We are told that it is our duty under Art. VIII, §1, ¶2 to decide whenever a claim
income groups. These include real properties held primarily for sale to customers
is made that "there has been a grave abuse of discretion amounting to lack or
or for lease in the ordinary course of trade or business, the right or privilege to
excess of jurisdiction on the part of any branch or instrumentality of the
use patent, copyright, and other similar property or right, the right or privilege to
government." This duty can only arise if an actual case or controversy is before
use industrial, commercial or scientific equipment, motion picture films, tapes
us. Under Art . VIII, §5 our jurisdiction is defined in terms of "cases" and all that
and discs, radio, television, satellite transmission and cable television time,
Art. VIII, §1, ¶2 can plausibly mean is that in the exercise of that jurisdiction we
hotels, restaurants and similar places, securities, lending investments, taxicabs,
have the judicial power to determine questions of grave abuse of discretion by
utility cars for rent, tourist buses, and other common carriers, services of
any branch or instrumentality of the government.
franchise grantees of telephone and telegraph.
Put in another way, what is granted in Art. VIII, §1, ¶2 is "judicial power,"
The problem with CREBA's petition is that it presents broad claims of
which is "the power of a court to hear and decide cases pending between parties
constitutional violations by tendering issues not at retail but at wholesale and in
who have the right to sue and be sued in the courts of law and equity" (Lamb v.
the abstract. There is no fully developed record which can impart to adjudication
Phipps, 22 Phil. 456, 559 (1912)), as distinguished from legislative and
the impact of actuality. There is no factual foundation to show in
executive power. This power cannot be directly appropriated until it is
the concrete the application of the law to actual contracts and exemplify its
apportioned among several courts either by the Constitution, as in the case of
effect on property rights. For the fact is that petitioner's members have not even
Art. VIII, §5, or by statute, as in the case of the Judiciary Act of 1948 (R.A. No. cooperatives, and similar collective organizations, shall be
296) and the Judiciary Reorganization Act of 1980 (B.P. Blg. 129). The power encouraged to broaden the base of their ownership.
thus apportioned constitutes the court's "jurisdiction," defined as "the power
conferred by law upon a court or judge to take cognizance of a case, to the §15. The Congress shall create an agency to promote the
exclusion of all others." (United States v. Arceo, 6 Phil. 29 (1906)) Without an viability and growth of cooperatives as instruments for social
actual case coming within its jurisdiction, this Court cannot inquire into any justice and economic development.
allegation of grave abuse of discretion by the other departments of the
government. Petitioner's contention has no merit. In the first place, it is not true that P.D. No.
1955 singled out cooperatives by withdrawing their exemption from income and
VIII. Alleged violation of policy towards cooperatives. On the other hand, the sales taxes under P.D. No. 175, §5. What P.D. No. 1955, §1 did was to
Cooperative Union of the Philippines (CUP), after briefly surveying the course withdraw the exemptions and preferential treatments theretofore granted to
of legislation, argues that it was to adopt a definite policy of granting tax private business enterprises in general, in view of the economic crisis which
exemption to cooperatives that the present Constitution embodies provisions on then beset the nation. It is true that after P.D. No. 2008, §2 had restored the tax
cooperatives. To subject cooperatives to the VAT would therefore be to infringe exemptions of cooperatives in 1986, the exemption was again repealed by E.O.
a constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was No. 93, §1, but then again cooperatives were not the only ones whose
promulgated exempting cooperatives from the payment of income taxes and exemptions were withdrawn. The withdrawal of tax incentives applied to all,
sales taxes but in 1984, because of the crisis which menaced the national including government and private entities. In the second place, the Constitution
economy, this exemption was withdrawn by P.D. No. 1955; that in 1986, P.D. does not really require that cooperatives be granted tax exemptions in order to
No. 2008 again granted cooperatives exemption from income and sales taxes promote their growth and viability. Hence, there is no basis for petitioner's
until December 31, 1991, but, in the same year, E.O. No. 93 revoked the assertion that the government's policy toward cooperatives had been one of
exemption; and that finally in 1987 the framers of the Constitution "repudiated vacillation, as far as the grant of tax privileges was concerned, and that it was to
the previous actions of the government adverse to the interests of the put an end to this indecision that the constitutional provisions cited were
cooperatives, that is, the repeated revocation of the tax exemption to adopted. Perhaps as a matter of policy cooperatives should be granted tax
cooperatives and instead upheld the policy of strengthening the cooperatives by exemptions, but that is left to the discretion of Congress. If Congress does not
way of the grant of tax exemptions," by providing the following in Art. XII: grant exemption and there is no discrimination to cooperatives, no violation of
any constitutional policy can be charged.
§1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained Indeed, petitioner's theory amounts to saying that under the Constitution
increase in the amount of goods and services produced by the cooperatives are exempt from taxation. Such theory is contrary to the
nation for the benefit of the people; and an expanding Constitution under which only the following are exempt from taxation:
productivity as the key to raising the quality of life for all, charitable institutions, churches and parsonages, by reason of Art. VI, §28 (3),
especially the underprivileged. and non-stock, non-profit educational institutions by reason of Art. XIV, §4 (3).

The State shall promote industrialization and full employment CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it
based on sound agricultural development and agrarian reform, denies cooperatives the equal protection of the law because electric cooperatives
through industries that make full and efficient use of human and are exempted from the VAT. The classification between electric and other
natural resources, and which are competitive in both domestic cooperatives (farmers cooperatives, producers cooperatives, marketing
and foreign markets. However, the State shall protect Filipino cooperatives, etc.) apparently rests on a congressional determination that there is
enterprises against unfair foreign competition and trade greater need to provide cheaper electric power to as many people as possible,
practices. especially those living in the rural areas, than there is to provide them with other
necessities in life. We cannot say that such classification is unreasonable.
In the pursuit of these goals, all sectors of the economy and all
regions of the country shall be given optimum opportunity to
develop. Private enterprises, including corporations,
We have carefully read the various arguments raised against the constitutional
validity of R.A. No. 7716. We have in fact taken the extraordinary step of
enjoining its enforcement pending resolution of these cases. We have now come
to the conclusion that the law suffers from none of the infirmities attributed to it
by petitioners and that its enactment by the other branches of the government
does not constitute a grave abuse of discretion. Any question as to its necessity,
desirability or expediency must be addressed to Congress as the body which is
electorally responsible, remembering that, as Justice Holmes has said,
"legislators are the ultimate guardians of the liberties and welfare of the people
in quite as great a degree as are the courts." (Missouri, Kansas & Texas Ry. Co.
v. May, 194 U.S. 267, 270, 48 L. Ed. 971, 973 (1904)). It is not right, as
petitioner in G.R. No. 115543 does in arguing that we should enforce the public
accountability of legislators, that those who took part in passing the law in
question by voting for it in Congress should later thrust to the courts the burden
of reviewing measures in the flush of enactment. This Court does not sit as a
third branch of the legislature, much less exercise a veto power over legislation.

WHEREFORE, the motions for reconsideration are denied with finality and the
temporary restraining order previously issued is hereby lifted.

Republic of the Philippines Office of the Solicitor General Estelito P. Mendoza and Assistant Solicitor
SUPREME COURT General Vicente V. Mendoza for respondent and petitioner People of the
Manila Philippines.

EN BANC FERNANDEZ, J.:ñé+.£ªwph!1

The present cases involve an interpretation of Section 20, Article IV of the New
Constitution, which reads:têñ.£îhqwâ£
G.R. Nos. L-37201-02 March 3, 1975
No person shall be compelled to be a witness against himself.
CLEMENTE MAGTOTO, petitioner, Any person under investigation for the commission of an
vs. offense shall have the right to remain silent and to counsel, and
HON. MIGUEL M. MANGUERA, Judge of the Court of First Instance to be informed of such right. No force, violence, threat,
(Branch II) of Occidental Mindoro, The PEOPLE OF THE PHILIPPINES, intimidation, or any other means which vitiates the free will
IGNACIO CALARA, JR., and LOURDES CALARA, respondents. shall be used against him. Any confession obtained in violation
of this section shall be inadmissible in evidence,
G.R. No. L-37424 March 3, 1975
and specifically, the portion thereof which declares inadmissible a confession
MAXIMO SIMEON, LOUIS MEDNATT, INOCENTES DE LUNA, obtained from a person under investigation for the commission of an offense
RUBEN MIRANDA, ALFONSO BALLESTEROS, RUDOLFO SUAREZ, who has not been informed of his right (to remain silent and) to counsel. 1
petitioners, We hold that this specific portion of this constitutional mandate has and should
vs. be given a prospective and not a retrospective effect. Consequently, a confession
HON. ONOFRE A. VILLALUZ, in his capacity as Judge of the Criminal obtained from a person under investigation for the commission of an offense,
Circuit Court of Pasig, Rizal, and PEOPLE OF THE PHILIPPINES, who has not been informed of his right (to silence and) to counsel, is
respondents. inadmissible in evidence if the same had been obtained after the effectivity of the
New Constitution on January 17, 1973. Conversely, such confession
G.R. No. L-38929 March 3, 1975 is admissible in evidence against the accused, if the same had been
obtained before the effectivity of the New Constitution, even if presented after
January 17, 1973, and even if he had not been informed of his right to counsel,
since no law gave the accused the right to be so informed before that date.
HONORABLE ASAALI S. ISNANI, District Judge of the Court of First
Instance of Zamboanga del Sur, Branch II, VICENTE LONGAKIT, and Accordingly, We hereby sustain the orders of the respondent Judges in G.R. No.
JAIME DALION, respondents. L-37201-02 2 and G.R. No. L-37424 3 declaring admissible the confessions of the
accused in said cases, and We hereby set aside the order of the respondent Judge
challenged in G.R. No. L-38929 4 which declared inadmissible the confessions of
Felipe S. Abeleda for petitioner Clemente Magtoto.
the accused in said case, although they have not been informed of their right to
remain silent and to counsel before they gave the confessions, because they were
Joaquin L. Misa for petitioners Maximo Simeon, et al. given before the effectivity of the New Constitution.

Alan L. Roxas for respondents Ignacio Calara, Jr., et al. The reasons for these rulings are as follows:

Organo Law Office for respondent Vicente Longakit, et al.

Section 20, Article IV of the New Constitution granted, for the first time, to a with the provision of a complementary measure, Republic Act No. 857 (effective
person under investigation for the commission of an offense, the right to counsel July 16, 1953), which provides:têñ.£îhqwâ£
and to be informed of such right. And the last sentence thereof which, in effect,
means that any confession obtained in violation of this right shall be SECTION 1. Any public officer who shall obstruct, prohibit, or
inadmissible in evidence, can and should be given effect only when the right otherwise prevent an attorney entitled to practice in the courts
already existed and had been violated. Consequently, because the confessions of of the Philippines from visiting and conferring privately with a
the accused in G.R. Nos. L-37201-02, 37424 and 38929 were taken before the person arrested, at any hour of the day or, in urgent cases, of the
effectivity of the New Constitution in accordance with the rules then in force, no night, said visit and conference being requested by the person
right had been violated as to render them inadmissible in evidence although they arrested or by another acting in his behalf, shall be punished by
were not informed of "their right to remain silent and to counsel," "and to be arresto mayor.
informed of such right," because, We repeat, no such right existed at the time.
None of these statutes requires that police investigators inform the detained
The argument that the second paragraph of Article 125 of the Revised Penal person of his "right" to counsel. They only allow him to request to be given
Code, which was added by Republic Act No. 1083 enacted in l954, which reads counsel. It is not for this Court to add a requirement and carry on where both
as follows:têñ.£îhqw⣠Congress and the President stopped.

In every case, the person detained shall be informed of the The history behind the new right granted to a detained person by Section 20,
cause of his detention and shall be allowed, upon his request, to Article IV of the New constitution to counsel and to be informed of said right
communicate and confer at any time with his attorney or under pain of a confession taken in violation thereof being rendered inadmissible
counsel. in evidence, clearly shows the intention to give this constitutional guaranty not a
retroactive, but a prospective, effect so as to cover only confessions taken after
impliedly granted to a detained person the right to counsel and to be informed of the effectivity of the New Constitution.
such right, is untenable. The only right granted by said paragraph to a detained
person was to be informed of the cause of his detention. But he must make a To begin with, Section 29, Rule 130 of the Rules of Court, provides:têñ.£îhqwâ£
request for him to be able to claim the right to communicate and confer with
counsel at any time. Confession.—The declaration of an accused expressly
acknowledging his guilt of the offense charged, may be given in
The remark of Senator Cuenco, when Republic Act No. 1083 was being evidence against him.
discussed in the Senate, that the bill which became Republic Act No. 1083
provides that the detained person should be informed of his right to counsel, was And according to Section 3, Rule 133 of the Rules of Court:
only the personal opinion of Senator Cuenco. We grant that he was, as We
personally knew him to be, a learned lawyer and senator. But his statement could
Extrajudicial confession, not sufficient ground for conviction.—An extrajudicial
reflect only his personal opinion because if Congress had wanted Republic Act
confession made by an accused, shall not be sufficient ground for conviction,
No. 1083 to grant a detained person a right to counsel and to be informed of such
unless corroborated by evidence of corpus delicti.
right, it should have been so worded. Congress did not do so.
Extrajudicial confessions of the accused in a criminal case are universally
As originally worded, Senate Bill No. 50, which became Republic Act No. 1083,
recognized as admissible in evidence against him, based on the presumption that
provided: "In every case the person detained shall be allowed, upon his request,
no one would declare anything against himself unless such declarations were
to have the services of an attorney or counsel. In the period of amendment, the
true. Accordingly, it has been held that a confession constitutes an evidence of a
phrase "have the services of" was changed to the present wording "communicate
high order since it is supported by the strong presumption that no person of
and confer anytime with his." As the Solicitor General points out in his able
normal mind would deliberately and knowingly confess to a crime unless
memorandum, apparently the purpose was to bring the provision in harmony
prompted by truth and conscience. (U.S. vs. Delos Santos, 24 Phil. 329, 358).
The fundamental rule is that a confession, to be admissible, must be voluntary. which proscribes the use of such cruel and inhuman methods to secure a
And the first rule in this connection was that before the confession could be confession." "A coerced confession stands discredited in the eyes of the law and
admitted in evidence, the prosecution must first show to the satisfaction of the is as a thing that never existed." The defense need not prove that its contents are
Court that the same was freely and voluntarily made, as provided for in Section 4 false. Thus, We turned full circle and returned to the rule originally established
of Act 619 of the Philippine Commission (U.S. vs. Pascual, August 29, 1903, 2 in the case of U.S. vs. Delos Santos, 24 Phil. 323 and People vs. Nishishima, 42
Phil. 458). But with the repeal of said provision of law by the Administrative Phil. 26. (See also People vs. Imperio, 44 SCRA 75).
Code in 1916, the burden of proof was changed. Now, a confession is admissible
in evidence without previous proof of its voluntariness on the theory that it is It must be noted that all these Philippine cases refer to coerced confessions,
presumed to be voluntary until the contrary is proved (5 Moran, Comments on whether the coercion was physical, mental and/or emotional.
the Rules of Court, p. 264; People vs. Dorado, 30 SCRA 53, 57, citing U.S. vs.
Zara, 42 Phil. 308; People vs. Cabrera, 43 Phil. 64; People v. Singh, 45 Phil. In the meantime, the United States Supreme Court decided the following
676; People v. Pereto, 21 SCRA 1469). cases: Massiah vs. United States (377 U.S. 201, 1964), Escobedo vs. Illinois (378
U.S. 478, 1964); and Miranda vs. Arizona (384 U.S. 436, 1966). In Miranda vs.
And once the accused succeeds in proving that his extrajudicial confession was Arizona, it was held:têñ.£îhqwâ£
made involuntarily, it stands discredited in the eyes of the law and is as a thing
which never existed. It is incompetent as evidence and must be rejected. The To summarize, we hold that when an individual is taken into
defense need not prove that its contents are false (U.S. vs. Delos Santos, 24 Phil. custody or otherwise deprived of his freedom by the authorities
329, 358; U.S. vs. Zara, 42 Phil. 325, November, 1921). The same rule was in any significant way and is subjected to questioning, the
followed inPeople vs. Nishishima. "Involuntary confessions are uniformly held privilege against self-incrimination is jeopardized. Procedural
inadmissible as evidence — by some courts on the ground that a confession so safeguards must be employed to protect the privilege *[384
obtained is unreliable, and by some on the ground of humanitarian principles U.S. 479]* and unless other fully effective means are adopted
which abhor all forms of torture or unfairness towards the accused in criminal to notify the person of his right of silence and to assure that the
proceedings. ... ." (57 Phil. 26, 48, 51; 1932). 4* In the concurring opinion of exercise of the right will be scrupulously honored, the
Justice Butte, he said: "Apart, from the fact that involuntary confessions will be following measures are required. He must be warned prior to
declared incompetent and are therefore utterly futile, it is high time to put a stop any questioning that he has the right to remain silent, that
to these (third degree) practices which are a blot on our Philippine civilization." anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he
This rule was, however, changed by this court in 1953 in the case of People vs. cannot afford an attorney one will be appointed for him prior to
Delos Santos, et al., G.R. No. L-4880, citing the rule in Moncado vs. People's any questioning if he so desires. Opportunity to exercise these
Court, et al., 80 Phil 1, and followed in the case ofPeople vs. Villanueva, et rights must be afforded to him throughout the interrogation.
al. (G.R. No. L-7472, January 31, 1956), to the effect that "a confession to be After such warning have been given, and such opportunity
repudiated, must not only be proved to have been obtained by force or violence afforded him, the individual may knowingly and intelligently
or intimidation, but also that it is false or untrue, for the law rejects the waive these rights and agree to answer questions or make
confession when by force or violence, the accused is compelled against this will statement. But unless and until such warning and waiver are
to tell a falsehood, not when by such force and violence is compelled to tell the demonstrated by the prosecution at trial, no evidence obtained
truth." This ruling was followed in a number of cases. 5 as a result of interrogation can be used against him. (Miranda
vs. Arizona, supra, p. 478)[Emphasis Ours]
But the ruling in Moncado vs. People's Court et al., 80 Phil 1, which was the
basis of the leading case ofPeople vs. Delos Santos, supra, was overruled in the When invoked in this jurisdiction, however, the Miranda rule was rejected by
case of Stonehill vs. Diokno (20 SCRA 383, June 19, 1963), holding that this Court. In the cases of People vs. Jose (37 SCRA 450, February 6, 1971)
evidence illegally obtained is not admissible in evidence. So, We reverted to the and People vs. Paras 56 SCRA 248, March 29, 1974), We rejected the rule that
original rule. As stated by this Court, speaking thru Justice Teehankee in People an extrajudicial confession given without the assistance of counsel is
vs. Urro (44 SCRA 473, April 27, 1972), "involuntary or coerced confessions inadmissible in evidence. This Court in the Jose case(as in the Paras case),
obtained by force or intimidation are null and voidand are abhorred by law held:têñ.£îhqwâ£
The inadmissibility of his extrajudicial statements is likewise When Delegate de Guzman (A) submitted the draft of this Section 20, Article IV
being questioned by Jose on the other ground that he was not to the October 26, 1972 meeting of the 17-man committee of the Steering
assisted by counsel during the custodial interrogations. He cites Council, Delegate Leviste (O) expressly made of record that "we are adopting
the decisions of the Supreme Court of the United States here the rulings of US Supreme Court in the Miranda-Escobedo cases." And We
in Massiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (37 cannot agree with the insinuation in the dissenting opinion of Justice Castro that
U.S. 478) and Miranda vs .Arizona (384 U.S. 436). the Delegates did not know of the existence of the second paragraph of Art. 125
of the Revised Penal Code.
The provision of the Constitution of the Philippines in point is
Article III (Bill of Rights), Section 1, par. 17 of which provides: Hence, We repeat, this historical background of Section 20, Article IV of the
"In all criminal prosecutions the accused shall ... enjoy the right New Constitution, in Our considered opinion, clearly shows that the new right
to be heard by himself and counsel ... ." While the said granted therein to a detained person to counsel and to be informed of such right
provision is identical to that in the Constitution of the United under pain of his confession being declared inadmissible in evidence, has and
States, in this jurisdiction the term criminal prosecutions was should be given a prospective and not a retroactive effect. It did not exist before
interpreted by this Court in U.S. vs. Beechman, 23 Phil 258 its incorporation in our New Constitution, as We held in the Jose and Paras
(1912), in connection with a similar provision in the Philippine cases, supra.
Bill of Rights (Section 5 of Act of Congress of July 1, 1902), to
mean proceedings before the trial court from arraignment to The authors of the dissenting opinions ignore the historical fact that the
rendition of the judgment. Implementing the said Constitutional constitutional and legal guarantees as well as the legal precedents that insure that
provision, We have provided in Section 1, Rule 115 of the the confession be voluntary, underwent a slow and tedious development. The
Rules of Court that "In all criminal prosecutions the defendant constitutional guarantee in question might indeed have come late in the progress
shall be entitled ... (b) to be present and defend in person and by of the law on the matter. But it is only now that it had come under Section 20 of
attorney at every state of the proceedings, that is, from the Article IV of the 1973 Constitution. That is all that our duty and power ordain Us
arraignment to the promulgation of the judgment." The only to proclaim; We cannot properly do more.
instances where an accused is entitled to counsel before
arraignment, if he so requests, are during the second stage of Furthermore, to give a retroactive effect to this constitutional guarantee to
preliminary investigation (Rule 112, Section 11) and after the counsel would have a great unsettling effect on the administration of justice in
arrest(Rule 113, Section 18). The rule in the United States need this country. It may lead to the acquittal of guilty individuals and thus cause
not be unquestioningly adhered to in this jurisdiction, not only injustice to the People and the offended parties in many criminal cases where
because it has no binding effect here, but also because in confessions were obtained before the effectivity of the New Constitution and in
interpreting a provision of the Constitution the meaning accordance with the rules then in force although without assistance of counsel.
attached hereto at the time of the adoption thereof should be The Constitutional Convention could not have intended such a a disastrous
considered. And even there the said rule is not yet quite settled, consequence in the administration of justice. For if the cause of justice suffers
as can be deduced from the absence of unanimity in the voting when an innocent person is convicted, it equally suffers when a guilty one is
by the members of the United States Supreme Court in all the acquitted.
three above-cited cases. (People vs. Jose, supra, at page 472).
Even in the United States, the trend is now towards prospectivity. As noted in the
The Constitutional Convention at the time it deliberated on Section 20, Article memorandum of the Solicitor General:têñ.£îhqwâ£
IV of the New Constitution was aware of the Escobedo and Miranda rule which
had been rejected in the case of Jose. That is the reason why the Miranda-
... That survey indicates that in the early decisions rejecting
Escobedo rule was expressly included as a new right granted to a detained
retroactivity, the United States Supreme Court did not require
person in the present provision of Section 20, Article IV of the New
"pure prospectivity;" the new constitutional requirements there
were applied to all cases still pending on direct review at the
time they were announced. (See Linkletter vs. Walker, 381 U.S.
618 (1965) (on admissibility of illegally-seized felony, who is not a habitual criminal, as this term is defined in
evidence); Tehan vs. Shott, 382 U.S. 406 (1966) (on the self- Rule 5 of Article 62 of this Code, although at the time of the
incrimination rule of Griffin vs. California, 380 U.S. 609 publication of such laws a final sentence has been pronounced
(1965). But the Court began a new course with Johnson vs. and the convict is serving the same,
New Jersey, 384 U.S. 719 (1966). It departed
from Linkletter and Tehan and came closer to "pure is not applicable to the present cases: First, because of the inclusion We have
prospectivity" by refusing to permit cases still pending on direct arrived at that the constitutional provision in question has a prospective and not a
review to benefit from the new in-custody interrogation retrospective effect, based on the reasons We have given; second, because the
requirements of Miranda vs. Arizona. As Chief Justice Warren "penal laws" mentioned in Article 22 of the Revised Penal Code refer
observed in Jenkins vs. Delaware, 395 U.S. 213 (1969), "With to substantive penal laws, while the constitutional provision in question is
Johnson we began increasing emphasis upon the point at which basically aprocedural rule of evidence involving the incompetency and
law enforcement officials relied upon practices not yet inadmissibility of confessions and therefore cannot be included in the term
prescribed." "More recently," he continued, "we have selected "penal laws;" 6 and third, because constitutional provisions as a rule should be
the point of initial reliance." That development began given a prospective effect. 7
with Stovall vs. Denno, 388 U.S. 293 (1967) (on the line-up
requirements of United States vs. Wade, 388 U.S. 218 (1967) Even as We rule that the new constitutional right of a detained person to counsel
and Gilbert vs. California, 388 U.S. 263 (1967). These new and to be informed of such right under pain of any confession given by him in
rulings were held applicable only in the immediate cases "and violation thereof declared inadmissible in evidence, to be prospective, and that
all future cases which involve confrontation for identification confessions obtained before the effectivity of the New Constitution are
purposes conducted in the absence of counsel after the dates admissible in evidence against the accused, his fundamental right to prove that
of Wade and Gilbert." The fact that Wade and Gilbert were thus his confession was involuntary still stands. Our present ruling does not in any
the only beneficiaries of the new rules was described as an way diminish any of his rights before the effectivity of the New Constitution.
"unavoidable consequence of the necessity that constitutional
adjudications not stand as mere dictum." In Jenkins vs.
IN VIEW OF ALL THE FOREGOING, the petitions for writs of certiorari in
Delaware itself, the Court held that the Miranda requirement
G.R. Nos. L-37201-02 and G.R. No. L-37424 are denied and that in G.R. No. L-
did not apply to a re-trial after June 13, 1966 — the cut-off
38929 is granted. As a consequence, all the confessions involved in said cases
point set for the Miranda requirement by Johnson vs. New
are hereby declared admissible in evidence. No costs.
Jersey — because Jenkins original trial had begun before the
cut-off point.
Makalintal, C.J., Barredo, Makasiar, Esguerra, Muñoz Palma and Aquino, JJ.,
Thus, the remarkable thing about this development in judge-
made law is not that it is given limited retroactive effort. That is
to be expected in the case of judicial decision as distinguished
from legislation. The notable thing is that the limited
retroactivity given to judge-made law in the beginning by
Linkletter vs. Walker has been abandoned as the Supreme
Court in Johnson vs. New Jersey and in Jenkins vs. Delaware
moved toward "pure prospectivity" (pp. 26-28) (Respondents'
memorandum, Feb. 16, 1974).

The provision of Article 22 of the Revised Penal Code that:têñ.£îhqwâ£

Retroactive effect of penal laws.—Penal laws shall have a

retroactive effect insofar as they favor the person guilty of a
Republic of the Philippines I. EXECUTION OF THE NECESSARY
1. The Highest Bidder must comply with the conditions set
EN BANC forth below by October 23, 1995 (reset to November 3, 1995)
or the Highest Bidder will lose the right to purchase the Block
of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:
G.R. No. 122156 February 3, 1997
a. The Highest Bidder must negotiate and
MANILA PRINCE HOTEL petitioner, execute with the GSIS/MHC the Management
vs. Contract, International Marketing/Reservation
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL System Contract or other type of contract
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF specified by the Highest Bidder in its strategic
THE GOVERNMENT CORPORATE COUNSEL, respondents. plan for the Manila Hotel. . . .

BELLOSILLO, J.: b. The Highest Bidder must execute the Stock

Purchase and Sale Agreement with GSIS . . . .
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of
rights, privileges, and concessions covering the national economy and K. DECLARATION OF THE WINNING
patrimony, the State shall give preference to qualified Filipinos, 1 is in oked by BIDDER/STRATEGIC PARTNER —
petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation
(MHC) which owns the historic Manila Hotel. Opposing, respondents maintain The Highest Bidder will be declared the Winning
that the provision is not self-executing but requires an implementing legislation Bidder/Strategic Partner after the following conditions are met:
for its enforcement. Corollarily, they ask whether the 51% shares form part of
the national economy and patrimony covered by the protective mantle of the a. Execution of the necessary contracts with
Constitution. GSIS/MHC not later than October 23, 1995
(reset to November 3, 1995); and
The controversy arose when respondent Government Service Insurance System
(GSIS), pursuant to the privatization program of the Philippine Government b. Requisite approvals from the GSIS/MHC
under Proclamation No. 50 dated 8 December 1986, decided to sell through and COP (Committee on Privatization)/OGCC
public bidding 30% to 51% of the issued and outstanding shares of respondent (Office of the Government Corporate Counsel)
MHC. The winning bidder, or the eventual "strategic partner," is to provide are obtained. 3
management expertise and/or an international marketing/reservation system,
and financial support to strengthen the profitability and performance of the Pending the declaration of Renong Berhad as the winning bidder/strategic
Manila Hotel. 2 In a close bidding held on 18 September 1995 only two (2) partner and the execution of the necessary contracts, petitioner in a letter to
bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per
corporation, which offered to buy 51% of the MHC or 15,300,000 shares at share tendered by Renong Berhad. 4 In a subsequent letter dated 10 October 1995
P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as petitioner sent a manager's check issued by Philtrust Bank for Thirty-three
its hotel operator, which bid for the same number of shares at P44.00 per share, Million Pesos (P33.000.000.00) as Bid Security to match the bid of the
or P2.42 more than the bid of petitioner. Malaysian Group, Messrs. Renong Berhad . . . 5 which respondent GSIS refused
to accept.
Pertinent provisions of the bidding rules prepared by respondent GSIS state —
On 17 October 1995, perhaps apprehensive that respondent GSIS has domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
disregarded the tender of the matching bid and that the sale of 51% of the MHC potential energy, fisheries, forests or timber, wildlife, flora and fauna and all
may be hastened by respondent GSIS and consummated with Renong Berhad, marine wealth in its territorial sea, and exclusive marine zone as cited in the first
petitioner came to this Court on prohibition and mandamus. On 18 October 1995 and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
the Court issued a temporary restraining order enjoining respondents from respondents, while petitioner speaks of the guests who have slept in the hotel and
perfecting and consummating the sale to the Malaysian firm. the events that have transpired therein which make the hotel historic, these alone
do not make the hotel fall under the patrimonyof the nation. What is more, the
On 10 September 1996 the instant case was accepted by the Court En Banc after mandate of the Constitution is addressed to the State, not to respondent GSIS
it was referred to it by the First Division. The case was then set for oral which possesses a personality of its own separate and distinct from the
arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Philippines as a State.
Bernas, S.J., as amici curiae.
Third, granting that the Manila Hotel forms part of the national patrimony, the
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 constitutional provision invoked is still inapplicable since what is being sold is
Constitution and submits that the Manila Hotel has been identified with the only 51% of the outstanding shares of the corporation, not the hotel building nor
Filipino nation and has practically become a historical monument which reflects the land upon which the building stands. Certainly, 51% of the equity of the
the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier MHC cannot be considered part of the national patrimony. Moreover, if the
generation of Filipinos who believed in the nobility and sacredness of disposition of the shares of the MHC is really contrary to the Constitution,
independence and its power and capacity to release the full potential of the petitioner should have questioned it right from the beginning and not after it had
Filipino people. To all intents and purposes, it has become a part of the national lost in the bidding.
patrimony. 6 Petitioner also argues that since 51% of the shares of the MHC
carries with it the ownership of the business of the hotel which is owned by Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules
respondent GSIS, a government-owned and controlled corporation, the hotel which provides that if for any reason, the Highest Bidder cannot be awarded the
business of respondent GSIS being a part of the tourism industry is Block of Shares, GSIS may offer this to the other Qualified Bidders that have
unquestionably a part of the national economy. Thus, any transaction involving validly submitted bids provided that these Qualified Bidders are willing to match
51% of the shares of stock of the MHC is clearly covered by the term national the highest bid in terms of price per share, is misplaced. Respondents postulate
economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7 that the privilege of submitting a matching bid has not yet arisen since it only
takes place if for any reason, the Highest Bidder cannot be awarded the Block of
It is also the thesis of petitioner that since Manila Hotel is part of the national Shares. Thus the submission by petitioner of a matching bid is premature since
patrimony and its business also unquestionably part of the national economy Renong Berhad could still very well be awarded the block of shares and the
petitioner should be preferred after it has matched the bid offer of the Malaysian condition giving rise to the exercise of the privilege to submit a matching bid had
firm. For the bidding rules mandate that if for any reason, the Highest Bidder not yet taken place.
cannot be awarded the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided that these Qualified Finally, the prayer for prohibition grounded on grave abuse of discretion should
Bidders are willing to match the highest bid in terms of price per share. 8 fail since respondent GSIS did not exercise its discretion in a capricious,
whimsical manner, and if ever it did abuse its discretion it was not so patent and
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of gross as to amount to an evasion of a positive duty or a virtual refusal to perform
the 1987 Constitution is merely a statement of principle and policy since it is not a duty enjoined by law. Similarly, the petition for mandamus should fail as
a self-executing provision and requires implementing legislation(s) . . . Thus, for petitioner has no clear legal right to what it demands and respondents do not
the said provision to Operate, there must be existing laws "to lay down have an imperative duty to perform the act required of them by petitioner.
conditions under which business may be done." 9
We now resolve. A constitution is a system of fundamental laws for the
Second, granting that this provision is self-executing, Manila Hotel does not fall governance and administration of a nation. It is supreme, imperious, absolute and
under the term national patrimony which only refers to lands of the public unalterable except by the authority from which it emanates. It has been defined
as the fundamental and paramount law of the nation. 10 It prescribes the
permanent framework of a system of government, assigns to the different they shall be effective. These provisions would be subordinated
departments their respective powers and duties, and establishes certain fixed to the will of the lawmaking body, which could make them
principles on which government is founded. The fundamental conception in entirely meaningless by simply refusing to pass the needed
other words is that it is a supreme law to which all other laws must conform and implementing statute. 15
in accordance with which all private rights must be determined and all public
authority administered. 11 Under the doctrine of constitutional supremacy, if a Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is
law or contract violates any norm of the constitution that law or contract whether clearly not self-executing, as they quote from discussions on the floor of the
promulgated by the legislative or by the executive branch or entered into by 1986 Constitutional Commission —
private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme MR. RODRIGO. Madam President, I am
law of the nation, it is deemed written in every statute and contract. asking this question as the Chairman of the
Committee on Style. If the wording of
Admittedly, some constitutions are merely declarations of policies and "PREFERENCE" is given to QUALIFIED
principles. Their provisions command the legislature to enact laws and carry out FILIPINOS," can it be understood as a
the purposes of the framers who merely establish an outline of government preference to qualified Filipinos vis-a-
providing for the different departments of the governmental machinery and vis Filipinos who are not qualified. So, why do
securing certain fundamental and inalienable rights of citizens. 12 A provision we not make it clear? To qualified Filipinos as
which lays down a general principle, such as those found in Art. II of the 1987 against aliens?
Constitution, is usually not self-executing. But a provision which is complete in
itself and becomes operative without the aid of supplementary or enabling THE PRESIDENT. What is the question of
legislation, or that which supplies sufficient rule by means of which the right it Commissioner Rodrigo? Is it to remove the
grants may be enjoyed or protected, is self-executing. Thus a constitutional word "QUALIFIED?".
provision is self-executing if the nature and extent of the right conferred and the
liability imposed are fixed by the constitution itself, so that they can be
MR. RODRIGO. No, no, but say definitely
determined by an examination and construction of its terms, and there is no
language indicating that the subject is referred to the legislature for action. 13
whom? As against aliens or over aliens?
As against constitutions of the past, modern constitutions have been generally
MR. NOLLEDO. Madam President, I think
drafted upon a different principle and have often become in effect extensive
that is understood. We use the word
codes of laws intended to operate directly upon the people in a manner similar to
"QUALIFIED" because the existing laws or
that of statutory enactments, and the function of constitutional conventions has
prospective laws will always lay down
evolved into one more like that of a legislative body. Hence, unless it is
conditions under which business may be
expressly provided that a legislative act is necessary to enforce a constitutional
done. For example, qualifications on the
mandate, the presumption now is that all provisions of the constitution are self-
setting up of other financial structures, et
executing If the constitutional provisions are treated as requiring legislation
cetera (emphasis supplied by respondents)
instead of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law. 14 This can be
cataclysmic. That is why the prevailing view is, as it has always been, that — MR. RODRIGO. It is just a matter of style.

. . . in case of doubt, the Constitution should be considered self- MR. NOLLEDO Yes, 16
executing rather than non-self-executing . . . . Unless the
contrary is clearly intended, the provisions of the Constitution Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as
should be considered self-executing, as a contrary rule would not to make it appear that it is non-self-executing but simply for purposes of
give the legislature discretion to determine when, or whether, style. But, certainly, the legislature is not precluded from enacting other further
laws to enforce the constitutional provision so long as the contemplated statute education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the
squares with the Constitution. Minor details may be left to the legislature without promotion of general welfare, 30 the sanctity of family life, 31 the vital role of the
impairing the self-executing nature of constitutional provisions. youth in nation-building 32 and the promotion of total human liberation and
development. 33 A reading of these provisions indeed clearly shows that they are
In self-executing constitutional provisions, the legislature may still enact not judicially enforceable constitutional rights but merely guidelines for
legislation to facilitate the exercise of powers directly granted by the legislation. The very terms of the provisions manifest that they are only
constitution, further the operation of such a provision, prescribe a practice to be principles upon which the legislations must be based. Res ipsa loquitur.
used for its enforcement, provide a convenient remedy for the protection of the
rights secured or the determination thereof, or place reasonable safeguards On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution
around the exercise of the right. The mere fact that legislation may supplement is a mandatory, positive command which is complete in itself and which needs
and add to or prescribe a penalty for the violation of a self-executing no further guidelines or implementing laws or rules for its enforcement. From its
constitutional provision does not render such a provision ineffective in the very words the provision does not require any legislation to put it in operation. It
absence of such legislation. The omission from a constitution of any express is per se judicially enforceable When our Constitution mandates that [i]n the
provision for a remedy for enforcing a right or liability is not necessarily an grant of rights, privileges, and concessions covering national economy and
indication that it was not intended to be self-executing. The rule is that a self- patrimony, the State shall give preference to qualified Filipinos, it means just
executing provision of the constitution does not necessarily exhaust legislative that — qualified Filipinos shall be preferred. And when our Constitution declares
power on the subject, but any legislation must be in harmony with the that a right exists in certain specified circumstances an action may be maintained
constitution, further the exercise of constitutional right and make it more to enforce such right notwithstanding the absence of any legislation on the
available. 17 Subsequent legislation however does not necessarily mean that the subject; consequently, if there is no statute especially enacted to enforce such
subject constitutional provision is not, by itself, fully enforceable. constitutional right, such right enforces itself by its own inherent potency and
puissance, and from which all legislations must take their bearings. Where there
Respondents also argue that the non-self-executing nature of Sec. 10, second is a right there is a remedy. Ubi jus ibi remedium.
par., of Art. XII is implied from the tenor of the first and third paragraphs of the
same section which undoubtedly are not self-executing. 18 The argument is As regards our national patrimony, a member of the 1986 Constitutional
flawed. If the first and third paragraphs are not self-executing because Congress Commission 34 explains —
is still to enact measures to encourage the formation and operation of enterprises
fully owned by Filipinos, as in the first paragraph, and the State still needs The patrimony of the Nation that should be conserved and
legislation to regulate and exercise authority over foreign investments within its developed refers not only to out rich natural resources but also
national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, to the cultural heritage of out race. It also refers to our
the second paragraph can only be self-executing as it does not by its language intelligence in arts, sciences and letters. Therefore, we should
require any legislation in order to give preference to qualified Filipinos in the develop not only our lands, forests, mines and other natural
grant of rights, privileges and concessions covering the national economy and resources but also the mental ability or faculty of our people.
patrimony. A constitutional provision may be self-executing in one part and non-
self-executing in another. 19 We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage. 35 When the Constitution speaks of national patrimony, it refers not
Even the cases cited by respondents holding that certain constitutional provisions only to the natural resources of the Philippines, as the Constitution could have
are merely statements of principles and policies, which are basically not self- very well used the term natural resources, but also to the cultural heritage of the
executing and only placed in the Constitution as moral incentives to legislation, Filipinos.
not as judicially enforceable rights — are simply not in point. Basco
v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional Manila Hotel has become a landmark — a living testimonial of Philippine
provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of heritage. While it was restrictively an American hotel when it first opened in
the youth in nation-building 23 the promotion of social justice, 24 and the values 1912, it immediately evolved to be truly Filipino, Formerly a concourse for the
of education. 25 Tolentino v. Secretary of Finance 26 refers to the constitutional elite, it has since then become the venue of various significant events which have
provisions on social justice and human rights 27 and on
shaped Philippine history. It was called the Cultural Center of the 1930's. It was the words "QUALIFIED FILIPINOS" with the
the site of the festivities during the inauguration of the Philippine following: "CITIZENS OF THE
Commonwealth. Dubbed as the Official Guest House of the Philippine PHILIPPINES OR CORPORATIONS OR
Government. it plays host to dignitaries and official visitors who are accorded ASSOCIATIONS WHOSE CAPITAL OR
the traditional Philippine hospitality. 36 CONTROLLING STOCK IS WHOLLY
The history of the hotel has been chronicled in the book The Manila Hotel: The
Heart and Memory of a City. 37During World War II the hotel was converted by xxx xxx xxx
the Japanese Military Administration into a military headquarters. When the
American forces returned to recapture Manila the hotel was selected by the MR. MONSOD. Madam President, apparently
Japanese together with Intramuros as the two (2) places fro their final stand. the proponent is agreeable, but we have to
Thereafter, in the 1950's and 1960's, the hotel became the center of political raise a question. Suppose it is a corporation
activities, playing host to almost every political convention. In 1970 the hotel that is 80-percent Filipino, do we not give it
reopened after a renovation and reaped numerous international recognitions, an preference?
acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the
site of a failed coup d' etat where an aspirant for vice-president was MR. DAVIDE. The Nolledo amendment
"proclaimed" President of the Philippine Republic. would refer to an individual Filipino. What
about a corporation wholly owned by Filipino
For more than eight (8) decades Manila Hotel has bore mute witness to the citizens?
triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our struggle MR. MONSOD. At least 60 percent, Madam
for sovereignty, independence and nationhood. Verily, Manila Hotel has become President.
part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the
MR. DAVIDE. Is that the intention?
majority and controlling stock, so that anyone who acquires or owns the 51%
will have actual control and management of the hotel. In this instance, 51% of
the MHC cannot be disassociated from the hotel and the land on which the hotel MR. MONSOD. Yes, because, in fact, we
edifice stands. Consequently, we cannot sustain respondents' claim that would be limiting it if we say that the
theFilipino First Policy provision is not applicable since what is being sold is preference should only be 100-percent
only 51% of the outstanding shares of the corporation, not the Hotel building Filipino.
nor the land upon which the building stands. 38
MR: DAVIDE. I want to get that meaning
The argument is pure sophistry. The term qualified Filipinos as used in Our clear because "QUALIFIED FILIPINOS" may
Constitution also includes corporations at least 60% of which is owned by refer only to individuals and not to juridical
Filipinos. This is very clear from the proceedings of the 1986 Constitutional personalities or entities.
MR. MONSOD. We agree, Madam
THE PRESIDENT. Commissioner Davide is President. 39
xxx xxx xxx
MR. DAVIDE. I would like to introduce an
amendment to the Nolledo amendment. And MR. RODRIGO. Before we vote, may I
the amendment would consist in substituting request that the amendment be read again.
MR. NOLLEDO. The amendment will read: Expounding further on the Filipino First Policy provision Commissioner
"IN THE GRANT OF RIGHTS, Nolledo continues —
FILIPINOS." And the word "Filipinos" here, the so-called "Filipino First" policy. That means that Filipinos
as intended by the proponents, will include not should be given preference in the grant of concessions,
only individual Filipinos but also Filipino- privileges and rights covering the national patrimony. 42
controlled entities or entities fully-controlled
by Filipinos. 40 The exchange of views in the sessions of the Constitutional Commission
regarding the subject provision was still further clarified by Commissioner
The phrase preference to qualified Filipinos was explained thus — Nolledo 43 —

MR. FOZ. Madam President, I would like to Paragraph 2 of Section 10 explicitly mandates the "Pro-
request Commissioner Nolledo to please Filipino" bias in all economic concerns. It is better known as
restate his amendment so that I can ask a the FILIPINO FIRST Policy . . . This provision was never
question. found in previous Constitutions . . . .

MR. NOLLEDO. "IN THE GRANT OF The term "qualified Filipinos" simply means that preference
RIGHTS, PRIVILEGES AND shall be given to those citizens who can make a viable
CONCESSIONS COVERING THE contribution to the common good, because of credible
NATIONAL ECONOMY AND competence and efficiency. It certainly does NOT mandate the
PATRIMONY, THE STATE SHALL GIVE pampering and preferential treatment to Filipino citizens or
PREFERENCE TO QUALIFIED organizations that are incompetent or inefficient, since such an
FILIPINOS." indiscriminate preference would be counter productive and
inimical to the common good.
MR FOZ. In connection with that amendment,
if a foreign enterprise is qualified and a In the granting of economic rights, privileges, and concessions,
Filipino enterprise is also qualified, will the when a choice has to be made between a "qualified foreigner"
Filipino enterprise still be given a preference? end a "qualified Filipino," the latter shall be chosen over the
MR. NOLLEDO. Obviously.
Lastly, the word qualified is also determinable. Petitioner was so considered by
MR. FOZ. If the foreigner is more qualified in respondent GSIS and selected as one of the qualified bidders. It was pre-
some aspects than the Filipino enterprise, will qualified by respondent GSIS in accordance with its own guidelines so that the
the Filipino still be preferred? sole inference here is that petitioner has been found to be possessed of proven
management expertise in the hotel industry, or it has significant equity
MR. NOLLEDO. The answer is "yes." ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel. 44
MR. FOZ. Thank you, 41
The penchant to try to whittle away the mandate of the Constitution by arguing
that the subject provision is not self-executory and requires implementing
legislation is quite disturbing. The attempt to violate a clear constitutional constitutional injunction is addressed among others to the Executive Department
provision — by the government itself — is only too distressing. To adopt such a and respondent GSIS, a government instrumentality deriving its authority from
line of reasoning is to renounce the duty to ensure faithfulness to the the State.
Constitution. For, even some of the provisions of the Constitution which
evidently need implementing legislation have juridical life of their own and can It should be stressed that while the Malaysian firm offered the higher bid it is not
be the source of a judicial remedy. We cannot simply afford the government a yet the winning bidder. The bidding rules expressly provide that the highest
defense that arises out of the failure to enact further enabling, implementing or bidder shall only be declared the winning bidder after it has negotiated and
guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on executed the necessary contracts, and secured the requisite approvals. Since the
constitutional government is apt — "Filipino First Policy provision of the Constitution bestows preference on
qualified Filipinos the mere tending of the highest bid is not an assurance that the
The executive department has a constitutional duty to highest bidder will be declared the winning bidder. Resultantly, respondents are
implement laws, including the Constitution, even before not bound to make the award yet, nor are they under obligation to enter into one
Congress acts — provided that there are discoverable legal with the highest bidder. For in choosing the awardee respondents are mandated
standards for executive action. When the executive acts, it must to abide by the dictates of the 1987 Constitution the provisions of which are
be guided by its own understanding of the constitutional presumed to be known to all the bidders and other interested parties.
command and of applicable laws. The responsibility for reading
and understanding the Constitution and the laws is not the sole Adhering to the doctrine of constitutional supremacy, the subject constitutional
prerogative of Congress. If it were, the executive would have to provision is, as it should be, impliedly written in the bidding rules issued by
ask Congress, or perhaps the Court, for an interpretation every respondent GSIS, lest the bidding rules be nullified for being violative of the
time the executive is confronted by a constitutional command. Constitution. It is a basic principle in constitutional law that all laws and
That is not how constitutional government operates. 45 contracts must conform with the fundamental law of the land. Those which
violate the Constitution lose their reason for being.
Respondents further argue that the constitutional provision is addressed to the
State, not to respondent GSIS which by itself possesses a separate and distinct Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the
personality. This argument again is at best specious. It is undisputed that the sale Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
of 51% of the MHC could only be carried out with the prior approval of the State other Qualified Bidders that have validly submitted bids provided that these
acting through respondent Committee on Privatization. As correctly pointed out Qualified Bidders are willing to match the highest bid in terms of price per
by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of share. 47 Certainly, the constitutional mandate itself is reason enough not to
respondents GSIS and MHC a "state action." In constitutional jurisprudence, the award the block of shares immediately to the foreign bidder notwithstanding its
acts of persons distinct from the government are considered "state action" submission of a higher, or even the highest, bid. In fact, we cannot conceive of a
covered by the Constitution (1) when the activity it engages in is a "public stronger reason than the constitutional injunction itself.
function;" (2) when the government is so significantly involved with the private
actor as to make the government responsible for his action; and, (3) when the In the instant case, where a foreign firm submits the highest bid in a public
government has approved or authorized the action. It is evident that the act of bidding concerning the grant of rights, privileges and concessions covering the
respondent GSIS in selling 51% of its share in respondent MHC comes under the national economy and patrimony, thereby exceeding the bid of a Filipino, there
second and third categories of "state action." Without doubt therefore the is no question that the Filipino will have to be allowed to match the bid of the
transaction. although entered into by respondent GSIS, is in fact a transaction of foreign entity. And if the Filipino matches the bid of a foreign firm the award
the State and therefore subject to the constitutional command. 46 should go to the Filipino. It must be so if we are to give life and meaning to
the Filipino First Policy provision of the 1987 Constitution. For, while this may
When the Constitution addresses the State it refers not only to the people but also neither be expressly stated nor contemplated in the bidding rules, the
to the government as elements of the State. After all, government is composed of constitutional fiat is, omnipresent to be simply disregarded. To ignore it would
three (3) divisions of power — legislative, executive and judicial. Accordingly, a be to sanction a perilous skirting of the basic law.
constitutional mandate directed to the State is correspondingly directed to the
three(3) branches of government. It is undeniable that in this case the subject
This Court does not discount the apprehension that this policy may discourage guardian of the Constitution will never shun, under any reasonable circumstance,
foreign investors. But the Constitution and laws of the Philippines are the duty of upholding the majesty of the Constitution which it is tasked to
understood to be always open to public scrutiny. These are given factors which defend. It is worth emphasizing that it is not the intention of this Court to impede
investors must consider when venturing into business in a foreign jurisdiction. and diminish, much less undermine, the influx of foreign investments. Far from
Any person therefore desiring to do business in the Philippines or with any of its it, the Court encourages and welcomes more business opportunities but
agencies or instrumentalities is presumed to know his rights and obligations avowedly sanctions the preference for Filipinos whenever such preference is
under the Constitution and the laws of the forum. ordained by the Constitution. The position of the Court on this matter could have
not been more appropriately articulated by Chief Justice Narvasa —
The argument of respondents that petitioner is now estopped from questioning
the sale to Renong Berhad since petitioner was well aware from the beginning As scrupulously as it has tried to observe that it is not its
that a foreigner could participate in the bidding is meritless. Undoubtedly, function to substitute its judgment for that of the legislature or
Filipinos and foreigners alike were invited to the bidding. But foreigners may be the executive about the wisdom and feasibility of legislation
awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to economic in nature, the Supreme Court has not been spared
match the highest bid tendered by the foreign entity. In the case before us, while criticism for decisions perceived as obstacles to economic
petitioner was already preferred at the inception of the bidding because of the progress and development . . . in connection with a temporary
constitutional mandate, petitioner had not yet matched the bid offered by Renong injunction issued by the Court's First Division against the sale
Berhad. Thus it did not have the right or personality then to compel respondent of the Manila Hotel to a Malaysian Firm and its partner, certain
GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the statements were published in a major daily to the effect that
foreign firm and the apparent disregard by respondent GSIS of petitioner's injunction "again demonstrates that the Philippine legal system
matching bid did the latter have a cause of action. can be a major obstacle to doing business here.

Besides, there is no time frame for invoking the constitutional safeguard unless Let it be stated for the record once again that while it is no
perhaps the award has been finally made. To insist on selling the Manila Hotel to business of the Court to intervene in contracts of the kind
foreigners when there is a Filipino group willing to match the bid of the foreign referred to or set itself up as the judge of whether they are
group is to insist that government be treated as any other ordinary market player, viable or attainable, it is its bounden duty to make sure that they
and bound by its mistakes or gross errors of judgment, regardless of the do not violate the Constitution or the laws, or are not adopted or
consequences to the Filipino people. The miscomprehension of the Constitution implemented with grave abuse of discretion amounting to lack
is regrettable. Thus we would rather remedy the indiscretion while there is still or excess of jurisdiction. It will never shirk that duty, no matter
an opportunity to do so than let the government develop the habit of forgetting how buffeted by winds of unfair and ill-informed criticism. 48
that the Constitution lays down the basic conditions and parameters for its
actions. Privatization of a business asset for purposes of enhancing its business viability
and preventing further losses, regardless of the character of the asset, should not
Since petitioner has already matched the bid price tendered by Renong Berhad take precedence over non-material values. A commercial, nay even a budgetary,
pursuant to the bidding rules, respondent GSIS is left with no alternative but to objective should not be pursued at the expense of national pride and dignity. For
award to petitioner the block of shares of MHC and to execute the necessary the Constitution enshrines higher and nobler non-material values. Indeed, the
agreements and documents to effect the sale in accordance not only with the Court will always defer to the Constitution in the proper governance of a free
bidding guidelines and procedures but with the Constitution as well. The refusal society; after all, there is nothing so sacrosanct in any economic policy as to
of respondent GSIS to execute the corresponding documents with petitioner as draw itself beyond judicial review when the Constitution is involved. 49
provided in the bidding rules after the latter has matched the bid of the
Malaysian firm clearly constitutes grave abuse of discretion. Nationalism is inherent, in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the Filipino people
The Filipino First Policy is a product of Philippine nationalism. It is embodied in and from whom all government authority emanates. In nationalism, the
the 1987 Constitution not merely to be used as a guideline for future legislation happiness and welfare of the people must be the goal. The nation-state can have
but primarily to be enforced; so must it be enforced. This Court as the ultimate no higher purpose. Any interpretation of any constitutional provision must
adhere to such basic concept. Protection of foreign investments, while laudible, Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ.,
is merely a policy. It cannot override the demands of nationalism. 50 concur.

The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of privatization.
We are not talking about an ordinary piece of property in a commercial district.
We are talking about a historic relic that has hosted many of the most important
events in the short history of the Philippines as a nation. We are talking about a
hotel where heads of states would prefer to be housed as a strong manifestation
of their desire to cloak the dignity of the highest state function to their official
visits to the Philippines. Thus the Manila Hotel has played and continues to play
a significant role as an authentic repository of twentieth century Philippine
history and culture. In this sense, it has become truly a reflection of the Filipino
soul — a place with a history of grandeur; a most historical setting that has
played a part in the shaping of a country. 51

This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark — this Grand Old Dame of hotels in
Asia — to a total stranger. For, indeed, the conveyance of this epic exponent of
the Filipino psyche to alien hands cannot be less than mephistophelian for it is,
in whatever manner viewed, a veritable alienation of a nation's soul for some
pieces of foreign silver. And so we ask: What advantage, which cannot be
equally drawn from a qualified Filipino, can be gained by the Filipinos Manila
Hotel — and all that it stands for — is sold to a non-Filipino? How much of
national pride will vanish if the nation's cultural heritage is entrusted to a foreign
entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-
meaning Filipino? This is the plain and simple meaning of the Filipino First
Policy provision of the Philippine Constitution. And this Court, heeding the
clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of the


COUNSEL are directed to CEASE and DESIST from selling 51% of the shares
of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the
matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel Corporation at
P44.00 per share and thereafter to execute the necessary clearances and to do
such other acts and deeds as may be necessary for purpose.

Republic of the Philippines Commander-in-Chief under Section 18, Article VII of the Constitution, the
SUPREME COURT President directed the AFP Chief of Staff and PNP Chief to coordinate with each
Manila other for the proper deployment and utilization of the Marines to assist the PNP
in preventing or suppressing criminal or lawless violence.6 Finally, the President
EN BANC declared that the services of the Marines in the anti-crime campaign are merely
temporary in nature and for a reasonable period only, until such time when the
G.R. No. 141284 August 15, 2000 situation shall have improved.7

INTEGRATED BAR OF THE PHILIPPINES, petitioner, The LOI explains the concept of the PNP-Philippine Marines joint visibility
vs. patrols as follows:
EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents. xxx


KAPUNAN, J.: The Joint Implementing Police Visibility Patrols between the PNP NCRPO and
the Philippine Marines partnership in the conduct of visibility patrols in Metro
At bar is a special civil action for certiorari and prohibition with prayer for Manila for the suppression of crime prevention and other serious threats to
issuance of a temporary restraining order seeking to nullify on constitutional national security.
grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the "Marines") to join the Philippine 3. SITUATION:
National Police (the "PNP") in visibility patrols around the metropolis.
Criminal incidents in Metro Manila have been perpetrated not only by ordinary
In view of the alarming increase in violent crimes in Metro Manila, like criminals but also by organized syndicates whose members include active and
robberies, kidnappings and carnappings, the President, in a verbal directive, former police/military personnel whose training, skill, discipline and firepower
ordered the PNP and the Marines to conduct joint visibility patrols for the prove well-above the present capability of the local police alone to handle. The
purpose of crime prevention and suppression. The Secretary of National deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police
Defense, the Chief of Staff of the Armed Forces of the Philippines (the "AFP"), visibility patrol in urban areas will reduce the incidence of crimes specially
the Chief of the PNP and the Secretary of the Interior and Local Government those perpetrated by active or former police/military personnel.
were tasked to execute and implement the said order. In compliance with the
presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar 4. MISSION:
B. Aglipay, formulated Letter of Instruction 02/20001 (the "LOI") which detailed
the manner by which the joint visibility patrols, called Task The PNP NCRPO will organize a provisional Task Force to conduct joint
Force Tulungan, would be conducted.2 Task Force Tulungan was placed under NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through a
the leadership of the Police Chief of Metro Manila. sustained street patrolling to minimize or eradicate all forms of high-profile
crimes especially those perpetrated by organized crime syndicates whose
Subsequently, the President confirmed his previous directive on the deployment members include those that are well-trained, disciplined and well-armed active
of the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief or former PNP/Military personnel.
of Staff of the AFP and the PNP Chief.3 In the Memorandum, the President
expressed his desire to improve the peace and order situation in Metro Manila 5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
through a more effective crime prevention program including increased police
patrols.4 The President further stated that to heighten police visibility in the a. The visibility patrols shall be conducted jointly by the NCRPO
metropolis, augmentation from the AFP is necessary.5 Invoking his powers as [National Capital Regional Police Office] and the Philippine Marines to
curb criminality in Metro Manila and to preserve the internal security of B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS
the state against insurgents and other serious threat to national security, INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION OF
although the primary responsibility over Internal Security Operations GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF
still rests upon the AFP. ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;

b. The principle of integration of efforts shall be applied to eradicate all C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY
forms of high-profile crimes perpetrated by organized crime syndicates TO RELY ON THE MILITARY TO PERFORM THE CIVILIAN
operating in Metro Manila. This concept requires the military and FUNCTIONS OF THE GOVERNMENT.
police to work cohesively and unify efforts to ensure a focused, effective
and holistic approach in addressing crime prevention. Along this line, II
the role of the military and police aside from neutralizing crime
syndicates is to bring a wholesome atmosphere wherein delivery of IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
basic services to the people and development is achieved. Hand-in-hand ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
with this joint NCRPO-Philippine Marines visibility patrols, local POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
Police Units are responsible for the maintenance of peace and order in CONSTITUTION.10
their locality.
Asserting itself as the official organization of Filipino lawyers tasked with the
c. To ensure the effective implementation of this project, a provisional bounden duty to uphold the rule of law and the Constitution, the IBP questions
Task Force "TULUNGAN" shall be organized to provide the the validity of the deployment and utilization of the Marines to assist the PNP in
mechanism, structure, and procedures for the integrated planning, law enforcement.
coordinating, monitoring and assessing the security situation.
Without granting due course to the petition, the Court in a Resolution,11 dated 25
xxx.8 January 2000, required the Solicitor General to file his Comment on the petition.
On 8 February 2000, the Solicitor General submitted his Comment.
The selected areas of deployment under the LOI are: Monumento Circle, North
Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati The Solicitor General vigorously defends the constitutionality of the act of the
Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport.9 President in deploying the Marines, contending, among others, that petitioner has
no legal standing; that the question of deployment of the Marines is not proper
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the for judicial scrutiny since the same involves a political question; that the
instant petition to annul LOI 02/2000 and to declare the deployment of the organization and conduct of police visibility patrols, which feature the team-up
Philippine Marines, null and void and unconstitutional, arguing that: of one police officer and one Philippine Marine soldier, does not violate the
civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA legal standing; (2) Whether or not the President’s factual determination of the
IS VIOLATIVE OF THE CONSTITUTION, IN THAT: necessity of calling the armed forces is subject to judicial review; and, (3)
Whether or not the calling of the armed forces to assist the PNP in joint visibility
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA patrols violates the constitutional provisions on civilian supremacy over the
AS WOULD JUSTIFY, EVEN ONLY REMOTELY, THE military and the civilian character of the PNP.
First, petitioner failed to sufficiently show that it is in possession of the requisites present a specific and substantial interest in the resolution of the case. Its
of standing to raise the issues in the petition. Second, the President did not fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court,
commit grave abuse of discretion amounting to lack or excess of jurisdiction nor is to elevate the standards of the law profession and to improve the
did he commit a violation of the civilian supremacy clause of the Constitution. administration of justice is alien to, and cannot be affected by the deployment of
the Marines. It should also be noted that the interest of the National President of
The power of judicial review is set forth in Section 1, Article VIII of the the IBP who signed the petition, is his alone, absent a formal board resolution
Constitution, to wit: authorizing him to file the present action. To be sure, members of the BAR,
those in the judiciary included, have varying opinions on the issue. Moreover,
Section 1. The judicial power shall be vested in one Supreme Court and in such the IBP, assuming that it has duly authorized the National President to file the
lower courts as may be established by law. petition, has not shown any specific injury which it has suffered or may suffer by
virtue of the questioned governmental act. Indeed, none of its members, whom
the IBP purportedly represents, has sustained any form of injury as a result of the
Judicial power includes the duty of the courts of justice to settle actual
operation of the joint visibility patrols. Neither is it alleged that any of its
controversies involving rights which are legally demandable and enforceable,
members has been arrested or that their civil liberties have been violated by the
and to determine whether or not there has been grave abuse of discretion
deployment of the Marines. What the IBP projects as injurious is the supposed
amounting to lack or excess of jurisdiction on the part of any branch or
"militarization" of law enforcement which might threaten Philippine democratic
instrumentality of the Government.
institutions and may cause more harm than good in the long run. Not only is the
presumed "injury" not personal in character, it is likewise too vague, highly
When questions of constitutional significance are raised, the Court can exercise speculative and uncertain to satisfy the requirement of standing. Since petitioner
its power of judicial review only if the following requisites are complied with, has not successfully established a direct and personal injury as a consequence of
namely: (1) the existence of an actual and appropriate case; (2) a personal and the questioned act, it does not possess the personality to assail the validity of the
substantial interest of the party raising the constitutional question; (3) the deployment of the Marines. This Court, however, does not categorically rule that
exercise of judicial review is pleaded at the earliest opportunity; and (4) the the IBP has absolutely no standing to raise constitutional issues now or in the
constitutional question is the lis mota of the case.12 future. The IBP must, by way of allegations and proof, satisfy this Court that it
has sufficient stake to obtain judicial resolution of the controversy.
The IBP has not sufficiently complied with the requisites of standing in this case.
Having stated the foregoing, it must be emphasized that this Court has the
"Legal standing" or locus standi has been defined as a personal and substantial discretion to take cognizance of a suit which does not satisfy the requirement of
interest in the case such that the party has sustained or will sustain direct injury legal standing when paramount interest is involved.16 In not a few cases, the
as a result of the governmental act that is being challenged.13 The term "interest" Court has adopted a liberal attitude on the locus standi of a petitioner where the
means a material interest, an interest in issue affected by the decree, as petitioner is able to craft an issue of transcendental significance to the
distinguished from mere interest in the question involved, or a mere incidental people.17 Thus, when the issues raised are of paramount importance to the
interest.14 The gist of the question of standing is whether a party alleges "such public, the Court may brush aside technicalities of procedure.18 In this case, a
personal stake in the outcome of the controversy as to assure that concrete reading of the petition shows that the IBP has advanced constitutional issues
adverseness which sharpens the presentation of issues upon which the court which deserve the attention of this Court in view of their seriousness, novelty
depends for illumination of difficult constitutional questions."15 and weight as precedents. Moreover, because peace and order are under constant
threat and lawless violence occurs in increasing tempo, undoubtedly aggravated
In the case at bar, the IBP primarily anchors its standing on its alleged by the Mindanao insurgency problem, the legal controversy raised in the petition
responsibility to uphold the rule of law and the Constitution. Apart from this almost certainly will not go away. It will stare us in the face again. It, therefore,
declaration, however, the IBP asserts no other basis in support of its locus standi. behooves the Court to relax the rules on standing and to resolve the issue now,
The mere invocation by the IBP of its duty to preserve the rule of law and rather than later.
nothing more, while undoubtedly true, is not sufficient to clothe it with standing
in this case. This is too general an interest which is shared by other groups and The President did not commit grave abuse of discretion in calling out the
the whole citizenry. Based on the standards above-stated, the IBP has failed to Marines.
In the case at bar, the bone of contention concerns the factual determination of exercising as Commander-in-Chief powers short of the calling of the armed
the President of the necessity of calling the armed forces, particularly the forces, or suspending the privilege of the writ of habeas corpus or declaring
Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that martial law, in order to keep the peace, and maintain public order and security.
the deployment of the military personnel falls under the Commander-in-Chief
powers of the President as stated in Section 18, Article VII of the Constitution, xxx21
specifically, the power to call out the armed forces to prevent or suppress lawless
violence, invasion or rebellion. What the IBP questions, however, is the basis for Nonetheless, even if it is conceded that the power involved is the President’s
the calling of the Marines under the aforestated provision. According to the IBP, power to call out the armed forces to prevent or suppress lawless violence,
no emergency exists that would justify the need for the calling of the military to invasion or rebellion, the resolution of the controversy will reach a similar result.
assist the police force. It contends that no lawless violence, invasion or rebellion
exist to warrant the calling of the Marines. Thus, the IBP prays that this Court
We now address the Solicitor General’s argument that the issue involved is not
"review the sufficiency of the factual basis for said troop [Marine]
susceptible to review by the judiciary because it involves a political question,
and thus, not justiciable.
The Solicitor General, on the other hand, contends that the issue pertaining to the
As a general proposition, a controversy is justiciable if it refers to a matter which
necessity of calling the armed forces is not proper for judicial scrutiny since it
is appropriate for court review.22It pertains to issues which are inherently
involves a political question and the resolution of factual issues which are
susceptible of being decided on grounds recognized by law. Nevertheless, the
beyond the review powers of this Court.
Court does not automatically assume jurisdiction over actual constitutional cases
brought before it even in instances that are ripe for resolution. One class of cases
As framed by the parties, the underlying issues are the scope of presidential wherein the Court hesitates to rule on are "political questions." The reason is that
powers and limits, and the extent of judicial review. But, while this Court gives political questions are concerned with issues dependent upon the wisdom, not the
considerable weight to the parties’ formulation of the issues, the resolution of the legality, of a particular act or measure being assailed. Moreover, the political
controversy may warrant a creative approach that goes beyond the narrow question being a function of the separation of powers, the courts will not
confines of the issues raised. Thus, while the parties are in agreement that the normally interfere with the workings of another co-equal branch unless the case
power exercised by the President is the power to call out the armed forces, the shows a clear need for the courts to step in to uphold the law and the
Court is of the view that the power involved may be no more than the Constitution.
maintenance of peace and order and promotion of the general welfare.20 For one,
the realities on the ground do not show that there exist a state of warfare,
As Tañada v. Cuenco23 puts it, political questions refer "to those questions
widespread civil unrest or anarchy. Secondly, the full brunt of the military is not
which, under the Constitution, are to be decided by the people in their sovereign
brought upon the citizenry, a point discussed in the latter part of this decision. In
capacity, or in regard to which full discretionary authority has been delegated to
the words of the late Justice Irene Cortes in Marcos v. Manglapus:
the legislative or executive branch of government." Thus, if an issue is clearly
identified by the text of the Constitution as matters for discretionary action by a
More particularly, this case calls for the exercise of the President’s powers as particular branch of government or to the people themselves then it is held to be
protector of the peace. [Rossiter,The American Presidency]. The power of the a political question. In the classic formulation of Justice Brennan in Baker v.
President to keep the peace is not limited merely to exercising the commander- Carr,24 "[p]rominent on the surface of any case held to involve a political
in-chief powers in times of emergency or to leading the State against external question is found a textually demonstrable constitutional commitment of the
and internal threats to its existence. The President is not only clothed with issue to a coordinate political department; or a lack of judicially discoverable and
extraordinary powers in times of emergency, but is also tasked with attending to manageable standards for resolving it; or the impossibility of deciding without
the day-to-day problems of maintaining peace and order and ensuring domestic an initial policy determination of a kind clearly for nonjudicial discretion; or the
tranquility in times when no foreign foe appears on the horizon. Wide discretion, impossibility of a court’s undertaking independent resolution without expressing
within the bounds of law, in fulfilling presidential duties in times of peace is not lack of the respect due coordinate branches of government; or an unusual need
in any way diminished by the relative want of an emergency specified in the for unquestioning adherence to a political decision already made; or the
commander-in-chief provision. For in making the President commander-in-chief
the enumeration of powers that follow cannot be said to exclude the President’s
potentiality of embarassment from multifarious pronouncements by various bereft of factual basis. The present petition fails to discharge such heavy burden
departments on the one question." as there is no evidence to support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence to support the
The 1987 Constitution expands the concept of judicial review by providing that proposition that grave abuse was committed because the power to call was
"(T)he Judicial power shall be vested in one Supreme Court and in such lower exercised in such a manner as to violate the constitutional provision on civilian
courts as may be established by law. Judicial power includes the duty of the supremacy over the military. In the performance of this Court’s duty of
courts of justice to settle actual controversies involving rights which are legally "purposeful hesitation"32 before declaring an act of another branch as
demandable and enforceable, and to determine whether or not there has been a unconstitutional, only where such grave abuse of discretion is clearly shown
grave abuse of discretion amounting to lack or excess of jurisdiction on the part shall the Court interfere with the President’s judgment. To doubt is to sustain.
of any branch or instrumentality of the Government."25 Under this definition, the
Court cannot agree with the Solicitor General that the issue involved is a There is a clear textual commitment under the Constitution to bestow on the
political question beyond the jurisdiction of this Court to review. When the grant President full discretionary power to call out the armed forces and to determine
of power is qualified, conditional or subject to limitations, the issue of whether the necessity for the exercise of such power. Section 18, Article VII of the
the prescribed qualifications or conditions have been met or the limitations Constitution, which embodies the powers of the President as Commander-in-
respected, is justiciable - the problem being one of legality or validity, not its Chief, provides in part:
wisdom.26 Moreover, the jurisdiction to delimit constitutional boundaries has
been given to this Court.27 When political questions are involved, the The President shall be the Commander-in-Chief of all armed forces of the
Constitution limits the determination as to whether or not there has been a grave Philippines and whenever it becomes necessary, he may call out such armed
abuse of discretion amounting to lack or excess of jurisdiction on the part of the forces to prevent or suppress lawless violence, invasion or rebellion. In case of
official whose action is being questioned.28 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
By grave abuse of discretion is meant simply capricious or whimsical exercise of place the Philippines or any part thereof under martial law.
judgment that is patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in contemplation xxx
of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion or hostility.29 Under this definition, a court is without power to The full discretionary power of the President to determine the factual basis for
directly decide matters over which full discretionary authority has been the exercise of the calling out power is also implied and further reinforced in the
delegated. But while this Court has no power to substitute its judgment for that rest of Section 18, Article VII which reads, thus:
of Congress or of the President, it may look into the question of whether such
exercise has been made in grave abuse of discretion.30 A showing that plenary
power is granted either department of government, may not be an obstacle to
judicial inquiry, for the improvident exercise or abuse thereof may give rise to
justiciable controversy.31 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
When the President calls the armed forces to prevent or suppress lawless
of at least a majority of all its Members in regular or special session, may revoke
violence, invasion or rebellion, he necessarily exercises a discretionary power
such proclamation or suspension, which revocation shall not be set aside by the
solely vested in his wisdom. This is clear from the intent of the framers and from
President. Upon the initiative of the President, the Congress may, in the same
the text of the Constitution itself. The Court, thus, cannot be called upon to
manner, extend such proclamation or suspension for a period to be determined
overrule the President’s wisdom or substitute its own. However, this does not
by the Congress, if the invasion or rebellion shall persist and public safety
prevent an examination of whether such power was exercised within permissible
requires it.
constitutional limits or whether it was exercised in a manner constituting grave
abuse of discretion. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces, it
is incumbent upon the petitioner to show that the President’s decision is totally
The Congress, if not in session, shall within twenty-four hours following such When he judges that it is necessary to impose martial law or suspend the
proclamation or suspension, convene in accordance with its rules without need of privilege of the writ of habeas corpus, his judgment is subject to review. We are
a call. making it subject to review by the Supreme Court and subject to concurrence by
the National Assembly. But when he exercises this lesser power of calling on the
The Supreme Court may review, in an appropriate proceeding filed by any Armed Forces, when he says it is necessary, it is my opinion that his judgment
citizen, the sufficiency of the factual basis of the proclamation of martial law or cannot be reviewed by anybody.
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing. xxx

A state of martial law does not suspend the operation of the Constitution, nor FR. BERNAS. Let me just add that when we only have imminent danger, the
supplant the functioning of the civil courts or legislative assemblies, nor matter can be handled by the first sentence: "The President may call out such
authorize the conferment of jurisdiction on military courts and agencies over armed forces to prevent or suppress lawless violence, invasion or rebellion." So
civilians where civil courts are able to function, nor automatically suspend the we feel that that is sufficient for handling imminent danger.
privilege of the writ.
MR. DE LOS REYES. So actually, if a President feels that there is imminent
The suspension of the privilege of the writ shall apply only to persons judicially danger, the matter can be handled by the First Sentence: "The President....may
charged for rebellion or offenses inherent in or directly connected with invasion. call out such Armed Forces to prevent or suppress lawless violence, invasion or
rebellion." So we feel that that is sufficient for handling imminent danger, of
During the suspension of the privilege of the writ, any person thus arrested or invasion or rebellion, instead of imposing martial law or suspending the writ
detained shall be judicially charged within three days, otherwise he shall be of habeas corpus, he must necessarily have to call the Armed Forces of the
released. Philippines as their Commander-in-Chief. Is that the idea?

Under the foregoing provisions, Congress may revoke such proclamation or MR. REGALADO. That does not require any concurrence by the legislature nor
suspension and the Court may review the sufficiency of the factual basis thereof. is it subject to judicial review.34
However, there is no such equivalent provision dealing with the revocation or
review of the President’s action to call out the armed forces. The distinction The reason for the difference in the treatment of the aforementioned powers
places the calling out power in a different category from the power to declare highlights the intent to grant the President the widest leeway and broadest
martial law and the power to suspend the privilege of the writ of habeas corpus, discretion in using the power to call out because it is considered as the lesser and
otherwise, the framers of the Constitution would have simply lumped together more benign power compared to the power to suspend the privilege of the writ
the three powers and provided for their revocation and review without any of habeas corpus and the power to impose martial law, both of which involve the
qualification. Expressio unius est exclusio alterius. Where the terms are curtailment and suppression of certain basic civil rights and individual freedoms,
expressly limited to certain matters, it may not, by interpretation or construction, and thus necessitating safeguards by Congress and review by this Court.
be extended to other matters.33 That the intent of the Constitution is exactly what
its letter says, i.e., that the power to call is fully discretionary to the President, is Moreover, under Section 18, Article VII of the Constitution, in the exercise of
extant in the deliberation of the Constitutional Commission, to wit: the power to suspend the privilege of the writ of habeas corpus or to impose
martial law, two conditions must concur: (1) there must be an actual invasion or
FR. BERNAS. It will not make any difference. I may add that there is a rebellion and, (2) public safety must require it. These conditions are not required
graduated power of the President as Commander-in-Chief. First, he can call out in the case of the power to call out the armed forces. The only criterion is that
such Armed Forces as may be necessary to suppress lawless violence; then he "whenever it becomes necessary," the President may call the armed forces "to
can suspend the privilege of the writ of habeas corpus, then he can impose prevent or suppress lawless violence, invasion or rebellion." The implication is
martial law. This is a graduated sequence. that the President is given full discretion and wide latitude in the exercise of the
power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President The deployment of the Marines does not violate the civilian supremacy clause
acted without factual basis, then this Court cannot undertake an independent nor does it infringe the civilian character of the police force.
investigation beyond the pleadings. The factual necessity of calling out the
armed forces is not easily quantifiable and cannot be objectively established Prescinding from its argument that no emergency situation exists to justify the
since matters considered for satisfying the same is a combination of several calling of the Marines, the IBP asserts that by the deployment of the Marines, the
factors which are not always accessible to the courts. Besides the absence of civilian task of law enforcement is "militarized" in violation of Section 3, Article
textual standards that the court may use to judge necessity, information II36 of the Constitution.
necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly We disagree. The deployment of the Marines does not constitute a breach of the
unavailable to the courts. In many instances, the evidence upon which the civilian supremacy clause. The calling of the Marines in this case constitutes
President might decide that there is a need to call out the armed forces may be of permissible use of military assets for civilian law enforcement. The participation
a nature not constituting technical proof. of the Marines in the conduct of joint visibility patrols is appropriately
circumscribed. The limited participation of the Marines is evident in the
On the other hand, the President as Commander-in-Chief has a vast intelligence provisions of the LOI itself, which sufficiently provides the metes and bounds of
network to gather information, some of which may be classified as highly the Marines’ authority. It is noteworthy that the local police forces are the ones
confidential or affecting the security of the state. In the exercise of the power to in charge of the visibility patrols at all times, the real authority belonging to the
call, on-the-spot decisions may be imperatively necessary in emergency PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-
situations to avert great loss of human lives and mass destruction of property. Philippine Marines joint visibility patrols.37 Under the LOI, the police forces are
Indeed, the decision to call out the military to prevent or suppress lawless tasked to brief or orient the soldiers on police patrol procedures.38 It is their
violence must be done swiftly and decisively if it were to have any effect at all. responsibility to direct and manage the deployment of the Marines.39 It is,
Such a scenario is not farfetched when we consider the present situation in likewise, their duty to provide the necessary equipment to the Marines and
Mindanao, where the insurgency problem could spill over the other parts of the render logistical support to these soldiers.40 In view of the foregoing, it cannot be
country. The determination of the necessity for the calling out power if subjected properly argued that military authority is supreme over civilian authority.
to unfettered judicial scrutiny could be a veritable prescription for disaster, as Moreover, the deployment of the Marines to assist the PNP does not unmake the
such power may be unduly straitjacketed by an injunction or a temporary civilian character of the police force. Neither does it amount to an "insidious
restraining order every time it is exercised. incursion" of the military in the task of law enforcement in violation of Section
5(4), Article XVI of the Constitution.41
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff
military when in his judgment it is necessary to do so in order to prevent or of the AFP, by his alleged involvement in civilian law enforcement, has been
suppress lawless violence, invasion or rebellion. Unless the petitioner can show virtually appointed to a civilian post in derogation of the aforecited provision.
that the exercise of such discretion was gravely abused, the President’s exercise The real authority in these operations, as stated in the LOI, is lodged with the
of judgment deserves to be accorded respect from this Court. head of a civilian institution, the PNP, and not with the military. Such being the
case, it does not matter whether the AFP Chief actually participates in the Task
The President has already determined the necessity and factual basis for calling Force Tulungan since he does not exercise any authority or control over the
the armed forces. In his Memorandum, he categorically asserted that, "[V]iolent same. Since none of the Marines was incorporated or enlisted as members of the
crimes like bank/store robberies, holdups, kidnappings and carnappings continue PNP, there can be no appointment to civilian position to speak of. Hence, the
to occur in Metro Manila..."35 We do not doubt the veracity of the President’s deployment of the Marines in the joint visibility patrols does not destroy the
assessment of the situation, especially in the light of present developments. The civilian character of the PNP.
Court takes judicial notice of the recent bombings perpetrated by lawless
elements in the shopping malls, public utilities, and other public places. These Considering the above circumstances, the Marines render nothing more than
are among the areas of deployment described in the LOI 2000. Considering all assistance required in conducting the patrols. As such, there can be no "insidious
these facts, we hold that the President has sufficient factual basis to call for incursion" of the military in civilian affairs nor can there be a violation of the
military aid in law enforcement and in the exercise of this constitutional power. civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various This unquestionably constitutes a gloss on executive power resulting from a
forms persists in Philippine jurisdiction. The Philippine experience reveals that it systematic, unbroken, executive practice, long pursued to the knowledge of
is not averse to requesting the assistance of the military in the implementation Congress and, yet, never before questioned.59 What we have here is mutual
and execution of certain traditionally "civil" functions. As correctly pointed out support and cooperation between the military and civilian authorities, not
by the Solicitor General, some of the multifarious activities wherein military aid derogation of civilian supremacy.
has been rendered, exemplifying the activities that bring both the civilian and the
military together in a relationship of cooperation, are: In the United States, where a long tradition of suspicion and hostility towards the
use of military force for domestic purposes has persisted,60 and whose
1. Elections;42 Constitution, unlike ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement officers is allowed under
2. Administration of the Philippine National Red Cross;43 circumstances similar to those surrounding the present deployment of the
Philippine Marines. Under the Posse Comitatus Act61 of the US, the use of the
3. Relief and rescue operations during calamities and disasters;44 military in civilian law enforcement is generally prohibited, except in certain
allowable circumstances. A provision of the Act states:
4. Amateur sports promotion and development;45
§ 1385. Use of Army and Air Force as posse comitatus
5. Development of the culture and the arts;46
Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air
6. Conservation of natural resources;47
Force as posse comitatus or otherwise to execute the laws shall be fined not more
than $10,000 or imprisoned not more than two years, or both.62
7. Implementation of the agrarian reform program;48
To determine whether there is a violation of the Posse Comitatus Act in the use
8. Enforcement of customs laws;49 of military personnel, the US courts63 apply the following standards, to wit:

9. Composite civilian-military law enforcement activities;50 Were Army or Air Force personnel used by the civilian law enforcement officers
at Wounded Knee in such a manner that the military personnel subjected the
10. Conduct of licensure examinations;51 citizens to the exercise of military power which was regulatory, proscriptive, or
compulsory64 George Washington Law Review, pp. 404-433 (1986), which
11. Conduct of nationwide tests for elementary and high school discusses the four divergent standards for assessing acceptable involvement of
students;52 military personnel in civil law enforcement. Seelikewise HONORED IN THE
12. Anti-drug enforcement activities;53 MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature,
either presently or prospectively?
13. Sanitary inspections;54
14. Conduct of census work;55
When this concept is transplanted into the present legal context, we take it to
15. Administration of the Civil Aeronautics Board;56 mean that military involvement, even when not expressly authorized by the
Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those claiming
16. Assistance in installation of weather forecasting devices;57
relief.1âwphi1 A mere threat of some future injury would be
insufficient. (emphasis supplied)
17. Peace and order policy formulation in local government units.58
Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law
enforcement, the conclusion is inevitable that no violation of the civilian
supremacy clause in the Constitution is committed. On this point, the Court
agrees with the observation of the Solicitor General:

3. The designation of tasks in Annex A65 does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not
control or direct the operation. This is evident from Nos. 6,668(k)67 and 9(a)68 of
Annex A. These soldiers, second, also have no power to prohibit or condemn. In
No. 9(d)69 of Annex A, all arrested persons are brought to the nearest police
stations for proper disposition. And last, these soldiers apply no coercive force.
The materials or equipment issued to them, as shown in No. 8(c)70 of Annex A,
are all low impact and defensive in character. The conclusion is that there being
no exercise of regulatory, proscriptive or compulsory military power, the
deployment of a handful of Philippine Marines constitutes no impermissible use
of military power for civilian law enforcement.71

It appears that the present petition is anchored on fear that once the armed forces
are deployed, the military will gain ascendancy, and thus place in peril our
cherished liberties. Such apprehensions, however, are unfounded. The power to
call the armed forces is just that - calling out the armed forces. Unless, petitioner
IBP can show, which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not inclined to overrule
the President’s determination of the factual basis for the calling of the Marines to
prevent or suppress lawless violence.

One last point. Since the institution of the joint visibility patrol in January, 2000,
not a single citizen has complained that his political or civil rights have been
violated as a result of the deployment of the Marines. It was precisely to
safeguard peace, tranquility and the civil liberties of the people that the joint
visibility patrol was conceived. Freedom and democracy will be in full bloom
only when people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

Republic of the Philippines pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc.
SUPREME COURT vs. Tan,5 where the Court held:
Objections to taxpayers’ suit for lack of sufficient personality standing,
EN BANC or interest are, however, in the main procedural matters. Considering the
importance to the public of the cases at bar, and in keeping with the
G.R. No. 157013 July 10, 2003 Court’s duty, under the 1987 Constitution, to determine whether or not
the other branches of government have kept themselves within the limits
ATTY. ROMULO B. MACALINTAL, petitioner, of the Constitution and the laws and that they have not abused the
vs. discretion given to them, the Court has brushed aside technicalities of
COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his procedure and has taken cognizance of these petitions.6
official capacity as Executive Secretary, and HON. EMILIA T.
BONCODIN, Secretary of the Department of Budget and Indeed, in this case, the Court may set aside procedural rules as the constitutional
Management, respondents. right of suffrage of a considerable number of Filipinos is involved.

AUSTRIA-MARTINEZ, J.: The question of propriety of the instant petition which may appear to be visited
by the vice of prematurity as there are no ongoing proceedings in any tribunal,
Before the Court is a petition for certiorari and prohibition filed by Romulo B. board or before a government official exercising judicial, quasi-judicial or
Macalintal, a member of the Philippine Bar, seeking a declaration that certain ministerial functions as required by Rule 65 of the Rules of Court, dims in light
provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of of the importance of the constitutional issues raised by the petitioner. In Tañada
2003)1 suffer from constitutional infirmity. Claiming that he has actual and vs. Angara,7 the Court held:
material legal interest in the subject matter of this case in seeing to it that public
funds are properly and lawfully used and appropriated, petitioner filed the instant In seeking to nullify an act of the Philippine Senate on the ground that it
petition as a taxpayer and as a lawyer. contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously
The Court upholds the right of petitioner to file the present petition. alleged to have infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute. "The question
thus posed is judicial rather than political. The duty (to adjudicate)
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee
remains to assure that the supremacy of the Constitution is upheld."
Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds
Once a "controversy as to the application or interpretation of
Therefor, and for Other Purposes," appropriates funds under Section 29 thereof
constitutional provision is raised before this Court (as in the instant
which provides that a supplemental budget on the General Appropriations Act of
case), it becomes a legal issue which the Court is bound by
the year of its enactment into law shall provide for the necessary amount to carry
constitutional mandate to decide."
out its provisions. Taxpayers, such as herein petitioner, have the right to restrain
officials from wasting public funds through the enforcement of an
unconstitutional statute.2 The Court has held that they may assail the validity of a In another case of paramount impact to the Filipino people, it has been expressed
law appropriating public funds3 because expenditure of public funds by an that it is illogical to await the adverse consequences of the law in order to
officer of the State for the purpose of executing an unconstitutional act consider the controversy actual and ripe for judicial resolution.8 In yet another
constitutes a misapplication of such funds.4 case, the Court said that:

The challenged provision of law involves a public right that affects a great . . . despite the inhibitions pressing upon the Court when confronted
number of citizens. The Court has adopted the policy of taking jurisdiction over with constitutional issues, it will not hesitate to declare a law or act
cases whenever the petitioner has seriously and convincingly presented an issue invalid when it is convinced that this must be done. In arriving at this
of transcendental significance to the Filipino people. This has been explicitly conclusion, its only criterion will be the Constitution and God as its
conscience gives it in the light to probe its meaning and discover its Section 5(d) provides:
purpose. Personal motives and political considerations are irrelevancies
that cannot influence its decisions. Blandishment is as ineffectual as Sec. 5. Disqualifications. – The following shall be disqualified from
intimidation, for all the awesome power of the Congress and Executive, voting under this Act:
the Court will not hesitate "to make the hammer fall heavily," where the
acts of these departments, or of any official, betray the people’s will as .........
expressed in the Constitution . . .9
d) An immigrant or a permanent resident who is recognized as such in
The need to consider the constitutional issues raised before the Court is further the host country, unless he/she executes, upon registration, an affidavit
buttressed by the fact that it is now more than fifteen years since the ratification prepared for the purpose by the Commission declaring that he/she shall
of the 1987 Constitution requiring Congress to provide a system for absentee resume actual physical permanent residence in the Philippines not later
voting by qualified Filipinos abroad. Thus, strong reasons of public policy than three (3) years from approval of his/her registration under this Act.
demand that the Court resolves the instant petition10 and determine whether Such affidavit shall also state that he/she has not applied for citizenship
Congress has acted within the limits of the Constitution or if it had gravely in another country. Failure to return shall be cause for the removal of the
abused the discretion entrusted to it.11 name of the immigrant or permanent resident from the National Registry
of Absentee Voters and his/her permanent disqualification to vote in
The petitioner raises three principal questions: absentia.

A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of Petitioner posits that Section 5(d) is unconstitutional because it violates Section
voters who are immigrants or permanent residents in other countries by 1, Article V of the 1987 Constitution which requires that the voter must be a
their mere act of executing an affidavit expressing their intention to resident in the Philippines for at least one year and in the place where he
return to the Philippines, violate the residency requirement in Section 1 proposes to vote for at least six months immediately preceding an election.
of Article V of the Constitution? Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals12 to support
his claim. In that case, the Court held that a "green card" holder immigrant to the
B. Does Section 18.5 of the same law empowering the COMELEC to United States is deemed to have abandoned his domicile and residence in the
proclaim the winning candidates for national offices and party list Philippines.
representatives including the President and the Vice-President violate
the constitutional mandate under Section 4, Article VII of the Petitioner further argues that Section 1, Article V of the Constitution does not
Constitution that the winning candidates for President and the Vice- allow provisional registration or a promise by a voter to perform a condition to
President shall be proclaimed as winners by Congress? be qualified to vote in a political exercise;13 that the legislature should not be
allowed to circumvent the requirement of the Constitution on the right of
C. May Congress, through the Joint Congressional Oversight Committee suffrage by providing a condition thereon which in effect amends or alters the
created in Section 25 of Rep. Act No. 9189, exercise the power to aforesaid residence requirement to qualify a Filipino abroad to vote.14 He claims
review, revise, amend, and approve the Implementing Rules and that the right of suffrage should not be granted to anyone who, on the date of the
Regulations that the Commission on Elections shall promulgate without election, does not possess the qualifications provided for by Section 1, Article V
violating the independence of the COMELEC under Section 1, Article of the Constitution.
IX-A of the Constitution?
Respondent COMELEC refrained from commenting on this issue.15
The Court will resolve the questions in seriatim.
In compliance with the Resolution of the Court, the Solicitor General filed his
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the comment for all public respondents. He contraposes that the constitutional
1987 Constitution of the Republic of the Philippines? challenge to Section 5(d) must fail because of the absence of clear and
unmistakable showing that said provision of law is repugnant to the Constitution.
He stresses: All laws are presumed to be constitutional; by the doctrine of SEC. 3. Definition of Terms. – For purposes of this Act:
separation of powers, a department of government owes a becoming respect for
the acts of the other two departments; all laws are presumed to have adhered to a) "Absentee Voting" refers to the process by which qualified
constitutional limitations; the legislature intended to enact a valid, sensible, and citizens of the Philippines abroad, exercise their right to vote;
just law.
. . . (Emphasis supplied)
In addition, the Solicitor General points out that Section 1, Article V of the
Constitution is a verbatim reproduction of those provided for in the 1935 and the f) "Overseas Absentee Voter" refers to a citizen of the
1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of Philippines who is qualified to register and vote under this
Representatives16 wherein the Court held that the term "residence" has been Act, not otherwise disqualified by law, who is abroad on the
understood to be synonymous with "domicile" under both Constitutions. He day of elections. (Emphasis supplied)
further argues that a person can have only one "domicile" but he can have two
residences, one permanent (the domicile) and the other temporary;17 and that the
SEC. 4. Coverage. – All citizens of the Philippines abroad, who are
definition and meaning given to the term residence likewise applies to absentee
not otherwise disqualified by law, at least eighteen (18) years of age
voters. Invoking Romualdez-Marcos vs. COMELEC18 which reiterates the
on the day of elections, may vote for president, vice-president, senators
Court’s ruling in Faypon vs. Quirino,19 the Solicitor General maintains that
and party-list representatives. (Emphasis supplied)
Filipinos who are immigrants or permanent residents abroad may have in fact
never abandoned their Philippine domicile.20
in relation to Sections 1 and 2, Article V of the Constitution which read:
Taking issue with the petitioner’s contention that "green card" holders are
considered to have abandoned their Philippine domicile, the Solicitor General SEC. 1. Suffrage may be exercised by all citizens of the Philippines not
suggests that the Court may have to discard its ruling in Caasi vs. Court of otherwise disqualified by law, who are at least eighteen years of age,
Appeals21 in so far as it relates to immigrants and permanent residents in foreign and who shall have resided in the Philippines for at least one year and in
countries who have executed and submitted their affidavits conformably with the place wherein they propose to vote for at least six months
Section 5(d) of R.A. No. 9189. He maintains that through the execution of the immediately preceding the election. No literacy, property, or other
requisite affidavits, the Congress of the Philippines with the concurrence of the substantive requirement shall be imposed on the exercise of suffrage.
President of the Republic had in fact given these immigrants and permanent
residents the opportunity, pursuant to Section 2, Article V of the Constitution, to SEC. 2. The Congress shall provide a system for securing the secrecy
manifest that they had in fact never abandoned their Philippine domicile; that and sanctity of the ballot as well as a system for absentee voting by
indubitably, they would have formally and categorically expressed the requisite qualified Filipinos abroad.
intentions, i.e., "animus manendi" and "animus revertendi;" that Filipino
immigrants and permanent residents abroad possess the unquestionable right to . . . . . . . . . (Emphasis supplied)
exercise the right of suffrage under Section 1, Article V of the Constitution upon
approval of their registration, conformably with R.A. No. 9189.22 Section 1, Article V of the Constitution specifically provides that suffrage may
be exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified
The seed of the present controversy is the interpretation that is given to the by law, (3) at least eighteen years of age, (4) who are residents in the Philippines
phrase, "qualified citizens of the Philippines abroad" as it appears in R.A. No. for at least one year and in the place where they propose to vote for at least six
9189, to wit: months immediately preceding the election. Under Section 5(d) of R.A. No.
9189, one of those disqualified from voting is an immigrant or permanent
SEC. 2. Declaration of Policy. – It is the prime duty of the State to provide a resident who is recognized as such in the host country unless he/she executes an
system of honest and orderly overseas absentee voting that upholds the secrecy affidavit declaring that he/she shall resume actual physical permanent residence
and sanctity of the ballot. Towards this end, the State ensures equal opportunity in the Philippines not later than three years from approval of his/her registration
to all qualified citizens of the Philippines abroad in the exercise of this under said Act.
fundamental right.
Petitioner questions the rightness of the mere act of execution of an affidavit to that the Constitution should be construed as a whole. In Chiongbian vs. De
qualify the Filipinos abroad who are immigrants or permanent residents, to vote. Leon,26 the Court held that a constitutional provision should function to the full
He focuses solely on Section 1, Article V of the Constitution in ascribing extent of its substance and its terms, not by itself alone, but in conjunction with
constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the all other provisions of that great document. Constitutional provisions are
provisions of Section 2 empowering Congress to provide a system for absentee mandatory in character unless, either by express statement or by necessary
voting by qualified Filipinos abroad. implication, a different intention is manifest.27 The intent of the Constitution
may be drawn primarily from the language of the document itself. Should it be
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the ambiguous, the Court may consider the intent of its framers through their debates
impression that it contravenes Section 1, Article V of the Constitution. Filipino in the constitutional convention.28
immigrants and permanent residents overseas are perceived as having left and
abandoned the Philippines to live permanently in their host countries and R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of
therefore, a provision in the law enfranchising those who do not possess the Section 2, Article V of the Constitution that Congress shall provide a system for
residency requirement of the Constitution by the mere act of executing an voting by qualified Filipinos abroad. It must be stressed that Section 2 does not
affidavit expressing their intent to return to the Philippines within a given period, provide for the parameters of the exercise of legislative authority in enacting said
risks a declaration of unconstitutionality. However, the risk is more apparent law. Hence, in the absence of restrictions, Congress is presumed to have duly
than real. exercised its function as defined in Article VI (The Legislative Department) of
the Constitution.
The Constitution is the fundamental and paramount law of the nation to which
all other laws must conform and in accordance with which all private rights must To put matters in their right perspective, it is necessary to dwell first on the
be determined and all public authority administered.23 Laws that do not conform significance of absentee voting. The concept of absentee voting is relatively new.
to the Constitution shall be stricken down for being unconstitutional. It is viewed thus:

Generally, however, all laws are presumed to be constitutional. In Peralta vs. The method of absentee voting has been said to be completely separable
COMELEC, the Court said: and distinct from the regular system of voting, and to be a new and
different manner of voting from that previously known, and an
. . . An act of the legislature, approved by the executive, is presumed to exception to the customary and usual manner of voting. The right of
be within constitutional limitations. The responsibility of upholding the absentee and disabled voters to cast their ballots at an election is purely
Constitution rests not on the courts alone but on the legislature as well. statutory; absentee voting was unknown to, and not recognized at, the
The question of the validity of every statute is first determined by the common law.
legislative department of the government itself.24
Absentee voting is an outgrowth of modern social and economic
Thus, presumption of constitutionality of a law must be overcome convincingly: conditions devised to accommodate those engaged in military or civil
life whose duties make it impracticable for them to attend their polling
. . . To declare a law unconstitutional, the repugnancy of that law to the places on the day of election, and the privilege of absentee voting may
Constitution must be clear and unequivocal, for even if a law is aimed at flow from constitutional provisions or be conferred by statutes, existing
the attainment of some public good, no infringement of constitutional in some jurisdictions, which provide in varying terms for the casting and
rights is allowed. To strike down a law there must be a clear showing reception of ballots by soldiers and sailors or other qualified voters
that what the fundamental law condemns or prohibits, the statute allows absent on election day from the district or precinct of their residence.
it to be done.25
Such statutes are regarded as conferring a privilege and not a right, or an
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it absolute right. When the legislature chooses to grant the right by
behooves the Court to take a holistic view of the pertinent provisions of both the statute, it must operate with equality among all the class to which it
Constitution and R.A. No. 9189. It is a basic rule in constitutional construction is granted; but statutes of this nature may be limited in their
application to particular types of elections. The statutes should be domicile in favor of another domicile of choice. In Uytengsu vs.
construed in the light of any constitutional provisions affecting Republic, we laid this distinction quite clearly:
registration and elections, and with due regard to their texts prior to
amendment and to predecessor statutes and the decisions "There is a difference between domicile and residence.
thereunder; they should also be construed in the light of the ‘Residence’ is used to indicate a place of abode, whether
circumstances under which they were enacted; and so as to carry out permanent or temporary; ‘domicile’ denotes a fixed permanent
the objects thereof, if this can be done without doing violence to their residence to which, when absent, one has the intention of
provisions and mandates. Further, in passing on statutes regulating returning. A man may have a residence in one place and a
absentee voting, the court should look to the whole and every part of domicile in another. Residence is not domicile, but domicile is
the election laws, the intent of the entire plan, and reasons and spirit residence coupled with the intention to remain for an unlimited
of their adoption, and try to give effect to every portion time. A man can have but one domicile for the same purpose at
thereof.29 (Emphasis supplied) any time, but he may have numerous places of residence. His
place of residence is generally his place of domicile, but it is
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the not by any means necessarily so since no length of residence
same time, both a resident and an absentee.30 However, under our election laws without intention of remaining will constitute domicile."
and the countless pronouncements of the Court pertaining to elections, an
absentee remains attached to his residence in the Philippines as residence is For political purposes the concepts of residence and domicile are
considered synonymous with domicile. dictated by the peculiar criteria of political laws. As these concepts have
evolved in our election law, what has clearly and unequivocally
In Romualdez-Marcos,31 the Court enunciated: emerged is the fact that residence for election purposes is used
synonymously with domicile.32 (Emphasis supplied)
Article 50 of the Civil Code decrees that "[f]or the exercise of civil
rights and the fulfillment of civil obligations, the domicile of natural Aware of the domiciliary legal tie that links an overseas Filipino to his residence
persons is their place of habitual residence." In Ong vs. Republic, this in this country, the framers of the Constitution considered the circumstances that
court took the concept of domicile to mean an individual’s "permanent impelled them to require Congress to establish a system for overseas absentee
home," "a place to which, whenever absent for business or for pleasure, voting, thus:
one intends to return, and depends on facts and circumstances in the
sense that they disclose intent." Based on the foregoing, domicile MR. OPLE. With respect to Section 1, it is not clear whether the right of
includes the twin elements of "the fact of residing or physical presence suffrage, which here has a residential restriction, is not denied to citizens
in a fixed place" and animus manendi, or the intention of returning there temporarily residing or working abroad. Based on the statistics of
permanently. several government agencies, there ought to be about two million such
Filipinos at this time. Commissioner Bernas had earlier pointed out that
Residence, in its ordinary conception, implies the factual relationship of these provisions are really lifted from the two previous Constitutions of
an individual to a certain place. It is the physical presence of a person in 1935 and 1973, with the exception of the last paragraph. They could not
a given area, community or country. The essential distinction between therefore have foreseen at that time the phenomenon now described as
residence and domicile in law is that residence involves the intent to the Filipino labor force explosion overseas.
leave when the purpose for which the resident has taken up his abode
ends. One may seek a place for purposes such as pleasure, business, or According to government data, there are now about 600,000 contract
health. If a person’s intent be to remain, it becomes his domicile; if his workers and employees, and although the major portions of these
intent is to leave as soon as his purpose is established it is residence. It is expatriate communities of workers are to be found in the Middle East,
thus, quite perfectly normal for an individual to have different they are scattered in 177 countries in the world.
residences in various places. However, a person can only have a single
domicile, unless, for various reasons, he successfully abandons his
In a previous hearing of the Committee on Constitutional Commissions So, they are here registered as voters as he has the qualifications
and Agencies, the Chairman of the Commission on Elections, Ramon to be one, and is not willing to give up or lose the opportunity
Felipe, said that there was no insuperable obstacle to making effective to choose the officials who are to run the government especially
the right of suffrage for Filipinos overseas. Those who have adhered to in national elections. Despite such registration, the animus
their Filipino citizenship notwithstanding strong temptations are revertendi to his home, to his domicile or residence of origin
exposed to embrace a more convenient foreign citizenship. And those has not forsaken him.
who on their own or under pressure of economic necessity here, find
that they have to detach themselves from their families to work in other This may be the explanation why the registration of a voter in a place other than
countries with definite tenures of employment. Many of them are on his residence of origin has not been deemed sufficient to consider abandonment
contract employment for one, two, or three years. They have no or loss of such residence of origin.
intention of changing their residence on a permanent basis, but are
technically disqualified from exercising the right of suffrage in their In other words, "residence" in this provision refers to two residence
countries of destination by the residential requirement in Section 1 qualifications: "residence" in the Philippines and "residence" in the
which says: place where he will vote. As far as residence in the Philippines is
concerned, the word "residence" means domicile, but as far as residence
Suffrage shall be exercised by all citizens of the Philippines not in the place where he will actually cast his ballot is concerned, the
otherwise disqualified by law, who are eighteen years of age or meaning seems to be different. He could have a domicile somewhere
over, and who shall have resided in the Philippines for at least else and yet he is a resident of a place for six months and he is allowed
one year and in the place wherein they propose to vote for at to vote there. So that there may be serious constitutional obstacles to
least six months preceding the election. absentee voting, unless the vote of the person who is absent is a vote
which will be considered as cast in the place of his domicile.
I, therefore, ask the Committee whether at the proper time they might
entertain an amendment that will make this exercise of the right to vote MR. OPLE. Thank you for citing the jurisprudence.
abroad for Filipino citizens an effective, rather than merely a nominal
right under this proposed Constitution. It gives me scant comfort thinking of about two million Filipinos who
should enjoy the right of suffrage, at least a substantial segment of these
FR. BERNAS. Certainly, the Committee will consider that. But more overseas Filipino communities. The Committee, of course, is aware that
than just saying that, I would like to make a comment on the meaning of when this Article of the Constitution explicitly and unequivocally
"residence" in the Constitution because I think it is a concept that has extends the right of effective suffrage to Filipinos abroad, this will call
been discussed in various decisions of the Supreme Court, particularly for a logistical exercise of global proportions. In effect, this will require
in the case of Faypon vs. Quirino, a 1954 case which dealt precisely budgetary and administrative commitments on the part of the Philippine
with the meaning of "residence" in the Election Law. Allow me to government, mainly through the COMELEC and the Ministry of
quote: Foreign Affairs, and perhaps, a more extensive elaboration of this
mechanism that will be put in place to make effective the right to vote.
A citizen may leave the place of his birth to look for greener Therefore, seeking shelter in some wise jurisprudence of the past may
pastures, as the saying goes, to improve his lot and that, of not be sufficient to meet the demands of the right of suffrage for
course, includes study in other places, practice of his avocation, Filipinos abroad that I have mentioned. But I want to thank the
reengaging in business. When an election is to be held, the Committee for saying that an amendment to this effect may be
citizen who left his birthplace to improve his lot may decide to entertained at the proper time. . . . . . . . . . 33 (Emphasis supplied)
return to his native town, to cast his ballot, but for professional
or business reasons, or for any other reason, he may not absent Thus, the Constitutional Commission recognized the fact that while millions of
himself from the place of his professional or business activities. Filipinos reside abroad principally for economic reasons and hence they
contribute in no small measure to the economic uplift of this country, their MR. SUAREZ. May I just be recognized for a clarification. There are
voices are marginal insofar as the choice of this country’s leaders is concerned. certain qualifications for the exercise of the right of suffrage like having
resided in the Philippines for at least one year and in the place where
The Constitutional Commission realized that under the laws then existing and they propose to vote for at least six months preceding the elections.
considering the novelty of the system of absentee voting in this jurisdiction, What is the effect of these mandatory requirements on the matter of the
vesting overseas Filipinos with the right to vote would spawn constitutional exercise of the right of suffrage by the absentee voters like Filipinos
problems especially because the Constitution itself provides for the residency abroad?
requirement of voters:
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. REGALADO. Before I act on that, may I inquire from
Commissioner Monsod if the term "absentee voting" also includes MR. MONSOD. I believe the answer was already given by
transient voting; meaning, those who are, let us say, studying in Manila Commissioner Bernas, that the domicile requirements as well as the
need not go back to their places of registration, for instance, in qualifications and disqualifications would be the same.
Mindanao, to cast their votes.
THE PRESIDENT. Are we leaving it to the legislature to devise the
MR. MONSOD. I think our provision is for absentee voting by Filipinos system?
FR. BERNAS. I think there is a very legitimate problem raised there.
MR. REGALADO. How about those people who cannot go back to the
places where they are registered? THE PRESIDENT. Yes.

MR. MONSOD. Under the present Election Code, there are provisions MR. BENGZON. I believe Commissioner Suarez is clarified.
for allowing students and military people who are temporarily in another
place to register and vote. I believe that those situations can be covered FR. BERNAS. But I think it should be further clarified with regard to
by the Omnibus Election Code. The reason we want absentee voting to the residence requirement or the place where they vote in practice; the
be in the Constitution as a mandate to the legislature is that there understanding is that it is flexible. For instance, one might be a resident
could be inconsistency on the residence rule if it is just a question of of Naga or domiciled therein, but he satisfies the requirement of
legislation by Congress. So, by allowing it and saying that this is residence in Manila, so he is able to vote in Manila.
possible, then legislation can take care of the rest.34 (Emphasis
MR. TINGSON. Madam President, may I then suggest to the
Committee to change the word "Filipinos" to QUALIFIED FILIPINO
Thus, Section 2, Article V of the Constitution came into being to remove any VOTERS. Instead of "VOTING BY FILIPINOS ABROAD," it should
doubt as to the inapplicability of the residency requirement in Section 1. It is be QUALIFIED FILIPINO VOTERS. If the Committee wants
precisely to avoid any problems that could impede the implementation of its QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the
pursuit to enfranchise the largest number of qualified Filipinos who are not in the requirement?
Philippines that the Constitutional Commission explicitly mandated Congress to
provide a system for overseas absentee voting.
THE PRESIDENT. What does Commissioner Monsod say?
The discussion of the Constitutional Commission on the effect of the residency
MR. MONSOD. Madam President, I think I would accept the phrase
requirement prescribed by Section 1, Article V of the Constitution on the
proposed system of absentee voting for qualified Filipinos abroad is
assume that he has the qualifications and none of the disqualifications to
MR. TINGSON. That is right. So does the Committee accept? Clearly therefrom, the intent of the Constitutional Commission is to entrust to
Congress the responsibility of devising a system of absentee voting. The
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"? qualifications of voters as stated in Section 1 shall remain except for the
residency requirement. This is in fact the reason why the Constitutional
THE PRESIDENT. Does the Committee accept the amendment? Commission opted for the termqualified Filipinos abroad with respect to the
system of absentee voting that Congress should draw up. As stressed by
Commissioner Monsod, by the use of the adjective qualified with respect to
MR. REGALADO. Madam President.
Filipinos abroad, the assumption is that they have the "qualifications and none of
the disqualifications to vote." In fine-tuning the provision on absentee voting, the
THE PRESIDENT. Commissioner Regalado is recognized. Constitutional Commission discussed how the system should work:

MR. REGALADO. When Commissioner Bengzon asked me to read my MR. SUAREZ. For clarification purposes, we just want to state for the
proposed amendment, I specifically stated that the National Assembly record that in the case of qualified Filipino citizens residing abroad and
shall prescribe a system which will enable qualified citizens, exercising their right of suffrage, they can cast their votes for the
temporarily absent from the Philippines, to vote. According to candidates in the place where they were registered to vote in the
Commissioner Monsod, the use of the phrase "absentee voting" already Philippines. So as to avoid any complications, for example, if they are
took that into account as its meaning. That is referring to qualified registered in Angeles City, they could not vote for a mayor in Naga
Filipino citizens temporarily abroad. City.

MR. MONSOD. Yes, we accepted that. I would like to say that with In other words, if that qualified voter is registered in Angeles City, then
respect to registration we will leave it up to the legislative assembly, he can vote only for the local and national candidates in Angeles City. I
for example, to require where the registration is. If it is, say, just want to make that clear for the record.
members of the diplomatic corps who may be continuously abroad
for a long time, perhaps, there can be a system of registration in the
MR. REGALADO. Madam President.
embassies. However, we do not like to preempt the legislative
THE PRESIDENT. What does Commissioner Regalado say?
THE PRESIDENT. Just to clarify, Commissioner Monsod’s amendment
is only to provide a system. MR. REGALADO. I just want to make a note on the statement of
Commissioner Suarez that this envisions Filipinos residing abroad. The
understanding in the amendment is that the Filipino is temporarily
abroad. He may not be actually residing abroad; he may just be there on
a business trip. It just so happens that the day before the elections he has
THE PRESIDENT. The Commissioner is not stating here that he wants to fly to the United States, so he could not cast his vote. He is
new qualifications for these absentee voters. temporarily abroad, but not residing there. He stays in a hotel for two
days and comes back. This is not limited only to Filipinos
MR. MONSOD. That is right. They must have the qualifications and temporarily residing abroad. But as long as he is temporarily abroad
none of the disqualifications. on the date of the elections, then he can fall within the prescription of
Congress in that situation.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. SUAREZ. I thank the Commissioner for his further clarification.
MR. MONSOD. That is right, Madam President.35 (Emphasis supplied) Precisely, we need this clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by It is in pursuance of that intention that the Commission provided for Section 2
"temporarily abroad," it need not be on very short trips. One can be immediately after the residency requirement of Section 1. By the doctrine of
abroad on a treaty traders visa. Therefore, when we talk about necessary implication in statutory construction, which may be applied in
registration, it is possible that his residence is in Angeles and he would construing constitutional provisions,37 the strategic location of Section 2
be able to vote for the candidates in Angeles, butCongress or the indicates that the Constitutional Commission provided for an exception to the
Assembly may provide the procedure for registration, like listing one’s actual residency requirement of Section 1 with respect to qualified Filipinos
name, in a registry list in the embassy abroad. That is still possible abroad. The same Commission has in effect declared that qualified Filipinos who
under the system. are not in the Philippines may be allowed to vote even though they do not satisfy
the residency requirement in Section 1, Article V of the Constitution.
FR. BERNAS. Madam President, just one clarification if Commissioner
Monsod agrees with this. That Section 2 of Article V of the Constitution is an exception to the residency
requirement found in Section 1 of the same Article was in fact the subject of
Suppose we have a situation of a child of a diplomatic officer who debate when Senate Bill No. 2104, which became R.A. No. 9189, was
reaches the voting age while living abroad and he has never registered deliberated upon on the Senate floor, thus:
here. Where will he register? Will he be a registered voter of a certain
locality in the Philippines? Senator Arroyo. Mr. President, this bill should be looked into in
relation to the constitutional provisions. I think the sponsor and I would
MR. MONSOD. Yes, it is possible that the system will enable that child agree that the Constitution is supreme in any statute that we may enact.
to comply with the registration requirements in an embassy in the
United States and his name is then entered in the official registration Let me read Section 1, Article V, of the Constitution entitled,
book in Angeles City, for instance. "Suffrage." It says:

FR. BERNAS. In other words, he is not a registered voter of Los Section 1. Suffrage may be exercised by all citizens of the
Angeles, but a registered voter of a locality here. Philippines not otherwise disqualified by law, who are at least
eighteen years of age, and who shall have resided in the
MR. MONSOD. That is right. He does not have to come home to the Philippines for at least one year and in the place wherein they
Philippines to comply with the registration procedure here. propose to vote for at least six months immediately preceding
the election.
FR. BERNAS. So, he does not have to come home.
Now, Mr. President, the Constitution says, "who shall have resided in
MR. BENGZON. Madam President, the Floor Leader wishes to inquire the Philippines." They are permanent immigrants. They have changed
if there are more clarifications needed from the body. residence so they are barred under the Constitution. This is why I asked
whether this committee amendment which in fact does not alter the
original text of the bill will have any effect on this?
Also, the Floor Leader is happy to announce that there are no more
registered Commissioners to propose amendments. So I move that we
close the period of amendments.36 (Emphasis supplied) Senator Angara. Good question, Mr. President. And this has been
asked in various fora. This is in compliance with the Constitution. One,
the interpretation here of "residence" is synonymous with "domicile."
It is clear from these discussions of the members of the Constitutional
Commission that they intended to enfranchise as much as possible all Filipino
citizens abroad who have not abandoned their domicile of origin. The As the gentleman and I know, Mr. President, "domicile" is the intent to
Commission even intended to extend to young Filipinos who reach voting age return to one’s home. And the fact that a Filipino may have been
abroad whose parents’ domicile of origin is in the Philippines, and consider them physically absent from the Philippines and may be physically a
qualified as voters for the first time. resident of the United States, for example, but has a clear intent to
return to the Philippines, will make him qualified as a resident of the Senator Angara. It is a good point to raise, Mr. President. But it is a
Philippines under this law. point already well-debated even in the constitutional commission of
1986. And the reason Section 2 of Article V was placed immediately
This is consistent, Mr. President, with the constitutional mandate that we after the six-month/one-year residency requirement is to demonstrate
– that Congress – must provide a franchise to overseas Filipinos. unmistakably that Section 2 which authorizes absentee voting is an
exception to the six-month/one-year residency requirement. That is the
If we read the Constitution and the suffrage principle literally as first principle, Mr. President, that one must remember.
demanding physical presence, then there is no way we can provide for
offshore voting to our offshore kababayan, Mr. President. The second reason, Mr. President, is that under our jurisprudence – and I
think this is so well-entrenched that one need not argue about it –
Senator Arroyo. Mr. President, when the Constitution says, in Section "residency" has been interpreted as synonymous with "domicile."
2 of Article V, it reads: "The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as well as a system for But the third more practical reason, Mr. President, is, if we follow
absentee voting by qualified Filipinos abroad." the interpretation of the gentleman, then it is legally and
constitutionally impossible to give a franchise to vote to overseas
The key to this whole exercise, Mr. President, is "qualified." In other Filipinos who do not physically live in the country, which is quite
words, anything that we may do or say in granting our compatriots ridiculous because that is exactly the whole point of this exercise –
abroad must be anchored on the proposition that they are qualified. to enfranchise them and empower them to vote.38 (Emphasis
Absent the qualification, they cannot vote. And "residents" (sic) is a supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the
I will lose votes here from permanent residents so-called "green-card absentee voting process, to wit:
holders", but the Constitution is the Constitution. We cannot
compromise on this. The Senate cannot be a party to something that SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not
would affect or impair the Constitution. otherwise disqualified by law, at least eighteen (18) years of age on the
day of elections, may vote for president, vice-president, senators and
Look at what the Constitution says – "In the place wherein they propose party-list representatives.
to vote for at least six months immediately preceding the election."
which does not require physical residency in the Philippines; and Section 5 of
Mr. President, all of us here have run (sic) for office. the assailed law which enumerates those who are disqualified, to wit:

I live in Makati. My neighbor is Pateros where Senator Cayetano lives. SEC. 5. Disqualifications. – The following shall be disqualified from
We are separated only by a creek. But one who votes in Makati cannot voting under this Act:
vote in Pateros unless he resides in Pateros for six months. That is how
restrictive our Constitution is. I am not talking even about the Election a) Those who have lost their Filipino citizenship in accordance with
Code. I am talking about the Constitution. Philippine laws;

As I have said, if a voter in Makati would want to vote in Pateros, yes, b) Those who have expressly renounced their Philippine citizenship and
he may do so. But he must do so, make the transfer six months before who have pledged allegiance to a foreign country;
the election, otherwise, he is not qualified to vote.
c) Those who have committed and are convicted in a final judgment by
That is why I am raising this point because I think we have a a court or tribunal of an offense punishable by imprisonment of not less
fundamental difference here. than one (1) year, including those who have committed and been found
guilty of Disloyalty as defined under Article 137 of the Revised Penal resume residency in the Philippines, but more significantly, it serves as an
Code, such disability not having been removed by plenary pardon or explicit expression that he had not in fact abandoned his domicile of origin.
amnesty: Provided, however, That any person disqualified to vote under Thus, it is not correct to say that the execution of the affidavit under Section 5(d)
this subsection shall automatically acquire the right to vote upon violates the Constitution that proscribes "provisional registration or a promise by
expiration of five (5) years after service of sentence; Provided, further, a voter to perform a condition to be qualified to vote in a political exercise."
That the Commission may take cognizance of final judgments issued by
foreign courts or tribunals only on the basis of reciprocity and subject to To repeat, the affidavit is required of immigrants and permanent residents abroad
the formalities and processes prescribed by the Rules of Court on because by their status in their host countries, they are presumed to have
execution of judgments; relinquished their intent to return to this country; thus, without the affidavit, the
presumption of abandonment of Philippine domicile shall remain.
d) An immigrant or a permanent resident who is recognized as such in
the host country, unless he/she executes, upon registration, an affidavit Further perusal of the transcripts of the Senate proceedings discloses another
prepared for the purpose by the Commission declaring that he/she shall reason why the Senate required the execution of said affidavit. It wanted the
resume actual physical permanent residence in the Philippines not later affiant to exercise the option to return or to express his intention to return to his
than three (3) years from approval of his/her registration under this Act. domicile of origin and not to preempt that choice by legislation. Thus:
Such affidavit shall also state that he/she has not applied for citizenship
in another country. Failure to return shall be cause for the removal of the Senator Villar. Yes, we are going back.
name of the immigrant or permanent resident from the National Registry
of Absentee Voters and his/her permanent disqualification to vote in
It states that: "For Filipino immigrants and those who have acquired
permanent resident status abroad," a requirement for the registration is
the submission of "a Sworn Declaration of Intent to Return duly sworn
e) Any citizen of the Philippines abroad previously declared insane or before any Philippine embassy or consulate official authorized to
incompetent by competent authority in the Philippines or abroad, as administer oath…"
verified by the Philippine embassies, consulates or foreign service
establishments concerned, unless such competent authority subsequently
Mr. President, may we know the rationale of this provision? Is the
certifies that such person is no longer insane or incompetent.
purpose of this Sworn Declaration to include only those who have the
intention of returning to be qualified to exercise the right of suffrage?
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically What if the Filipino immigrant has no purpose of returning? Is he
disqualifies an immigrant or permanent resident who is "recognized as such in automatically disbarred from exercising this right to suffrage?
the host country" because immigration or permanent residence in another
country implies renunciation of one’s residence in his country of origin.
Senator Angara. The rationale for this, Mr. President, is that we
However, same Section allows an immigrant and permanent resident abroad to
want to be expansive and all-inclusive in this law. That as long as he
register as voter for as long as he/she executes an affidavit to show that he/she
is a Filipino, no matter whether he is a green-card holder in the U.S.
has not abandoned his domicile in pursuance of the constitutional intent
or not, he will be authorized to vote. But if he is already a green-card
expressed in Sections 1 and 2 of Article V that "all citizens of the Philippines not
holder, that means he has acquired permanent residency in the
otherwise disqualified by law" must be entitled to exercise the right of suffrage
United States, then he must indicate an intention to return. This is
and, that Congress must establish a system for absentee voting; for otherwise, if
what makes for the definition of "domicile." And to acquire the vote,
actual, physical residence in the Philippines is required, there is no sense for the
we thought that we would require the immigrants and the green-card
framers of the Constitution to mandate Congress to establish a system for
holders . . . Mr. President, the three administration senators are leaving,
absentee voting.
maybe we may ask for a vote [Laughter].
Contrary to the claim of petitioner, the execution of the affidavit itself is not the
Senator Villar. For a merienda, Mr. President.
enabling or enfranchising act. The affidavit required in Section 5(d) is not only
proof of the intention of the immigrant or permanent resident to go back and
Senator Angara. Mr. President, going back to the business at hand. The Thus, Section 11 of R.A. No. 9189 provides:
rationale for the requirement that an immigrant or a green-card holder
should file an affidavit that he will go back to the Philippines is that, if SEC. 11. Procedure for Application to Vote in Absentia. –
he is already an immigrant or a green-card holder, that means he may
not return to the country any more and that contradicts the definition of 11.1. Every qualified citizen of the Philippines abroad whose application
"domicile" under the law. for registration has been approved, including those previously registered
under Republic Act No. 8189, shall, in every national election, file with
But what we are trying to do here, Mr. President, is really provide the the officer of the embassy, consulate or other foreign service
choice to the voter. The voter, after consulting his lawyer or after establishment authorized by the Commission, a sworn written
deliberation within the family, may decide "No, I think we are risking application to vote in a form prescribed by the Commission. The
our permanent status in the United States if we file an affidavit that we authorized officer of such embassy, consulate or other foreign service
want to go back." But we want to give him the opportunity to make that establishment shall transmit to the Commission the said application to
decision. We do not want to make that decision for him. 39(Emphasis vote within five (5) days from receipt thereof. The application form
supplied) shall be accomplished in triplicate and submitted together with the
photocopy of his/her overseas absentee voter certificate of registration.
The jurisprudential declaration in Caasi vs. Court of Appeals that green card
holders are disqualified to run for any elective office finds no application to the 11.2. Every application to vote in absentia may be done personally at, or
present case because the Caasi case did not, for obvious reasons, consider the by mail to, the embassy, consulate or foreign service establishment,
absentee voting rights of Filipinos who are immigrants and permanent residents which has jurisdiction over the country where he/she has indicated
in their host countries. his/her address for purposes of the elections.

In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they 11.3. Consular and diplomatic services rendered in connection with the
may still be considered as a "qualified citizen of the Philippines abroad" upon overseas absentee voting processes shall be made available at no cost to
fulfillment of the requirements of registration under the new law for the purpose the overseas absentee voter.
of exercising their right of suffrage.
Contrary to petitioner’s claim that Section 5(d) circumvents the Constitution,
It must be emphasized that Section 5(d) does not only require an affidavit or a Congress enacted the law prescribing a system of overseas absentee voting in
promise to "resume actual physical permanent residence in the Philippines not compliance with the constitutional mandate. Such mandate expressly requires
later than three years from approval of his/her registration," the Filipinos abroad that Congress provide a system of absentee voting that necessarily presupposes
must also declare that they have not applied for citizenship in another country. that the "qualified citizen of the Philippines abroad" is not physically present in
Thus, they must return to the Philippines; otherwise, their failure to return "shall the country. The provisions of Sections 5(d) and 11 are components of the
be cause for the removal" of their names "from the National Registry of system of overseas absentee voting established by R.A. No. 9189. The qualified
Absentee Voters and his/her permanent disqualification to vote in absentia." Filipino abroad who executed the affidavit is deemed to have retained his
domicile in the Philippines. He is presumed not to have lost his domicile by his
Thus, Congress crafted a process of registration by which a Filipino voter physical absence from this country. His having become an immigrant or
permanently residing abroad who is at least eighteen years old, not otherwise permanent resident of his host country does not necessarily imply an
disqualified by law, who has not relinquished Philippine citizenship and who has abandonment of his intention to return to his domicile of origin, the Philippines.
not actually abandoned his/her intentions to return to his/her domicile of origin, Therefore, under the law, he must be given the opportunity to express that he has
the Philippines, is allowed to register and vote in the Philippine embassy, not actually abandoned his domicile in the Philippines by executing the affidavit
consulate or other foreign service establishments of the place which has required by Sections 5(d) and 8(c) of the law.
jurisdiction over the country where he/she has indicated his/her address for
purposes of the elections, while providing for safeguards to a clean election. Petitioner’s speculative apprehension that the implementation of Section 5(d)
would affect the credibility of the elections is insignificant as what is important
is to ensure that all those who possess the qualifications to vote on the date of the B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in
election are given the opportunity and permitted to freely do so. The COMELEC contravention of Section 4, Article VII of the Constitution?
and the Department of Foreign Affairs have enough resources and talents to
ensure the integrity and credibility of any election conducted pursuant to R.A. Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote
No. 9189. for president, vice-president, senators and party-list representatives.

As to the eventuality that the Filipino abroad would renege on his undertaking to Section 18.5 of the same Act provides:
return to the Philippines, the penalty of perpetual disenfranchisement provided
for by Section 5(d) would suffice to serve as deterrence to non-compliance with SEC. 18. On-Site Counting and Canvassing. –
his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of "immigrants" renege on their
promise to return, the result of the elections would be affected and could even be
18. 5 The canvass of votes shall not cause the delay of the proclamation
a ground to contest the proclamation of the winning candidates and cause further
of a winning candidate if the outcome of the election will not be affected
confusion and doubt on the integrity of the results of the election. Indeed, the
by the results thereof. Notwithstanding the foregoing, the Commission
probability that after an immigrant has exercised the right to vote, he shall opt to
is empowered to order the proclamation of winning candidates despite
remain in his host country beyond the third year from the execution of the
the fact that the scheduled election has not taken place in a particular
affidavit, is not farfetched. However, it is not for this Court to determine the
country or countries, if the holding of elections therein has been
wisdom of a legislative exercise. As expressed in Tañada vs. Tuvera,40 the Court
rendered impossible by events, factors and circumstances peculiar to
is not called upon to rule on the wisdom of the law or to repeal it or modify it if
such country or countries, in which events, factors and circumstances
we find it impractical.
are beyond the control or influence of the Commission. (Emphasis
Congress itself was conscious of said probability and in fact, it has addressed the
expected problem. Section 5(d) itself provides for a deterrence which is that the
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189
Filipino who fails to return as promised stands to lose his right of suffrage.
empowering the COMELEC to order the proclamation of winning candidates
Under Section 9, should a registered overseas absentee voter fail to vote for two
insofar as it affects the canvass of votes and proclamation of winning candidates
consecutive national elections, his name may be ordered removed from the
for president and vice-president, is unconstitutional because it violates the
National Registry of Overseas Absentee Voters.
following provisions of paragraph 4, Section 4 of Article VII of the Constitution:
Other serious legal questions that may be raised would be: what happens to the
SEC. 4 . . .
votes cast by the qualified voters abroad who were not able to return within three
years as promised? What is the effect on the votes cast by the non-returnees in
favor of the winning candidates? The votes cast by qualified Filipinos abroad The returns of every election for President and Vice-President, duly
who failed to return within three years shall not be invalidated because they were certified by the board of canvassers of each province or city, shall be
qualified to vote on the date of the elections, but their failure to return shall be transmitted to the Congress, directed to the President of the Senate.
cause for the removal of the names of the immigrants or permanent residents Upon receipt of the certificates of canvass, the President of the Senate
from the National Registry of Absentee Voters and their permanent shall, not later than thirty days after the day of the election, open all the
disqualification to vote in absentia. certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the
In fine, considering the underlying intent of the Constitution, the Court does not
manner provided by law, canvass the votes.
find Section 5(d) of R.A. No. 9189 as constitutionally defective.
The person having the highest number of votes shall be proclaimed
elected, but in case two or more shall have an equal and highest number
of votes, one of them shall forthwith be chosen by the vote of a majority power to proclaim the winners for the said positions." The provisions of the
of all the Members of both Houses of the Congress, voting separately. Constitution as the fundamental law of the land should be read as part of The
Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes
The Congress shall promulgate its rules for the canvassing of the and the proclamation of the winning candidates for president and vice-president
certificates. for the entire nation must remain in the hands of Congress.

... C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article
IX-A of the Constitution?
which gives to Congress the duty to canvass the votes and proclaim the winning
candidates for president and vice-president. Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A
(Common Provisions) of the Constitution, to wit:
The Solicitor General asserts that this provision must be harmonized with
paragraph 4, Section 4, Article VII of the Constitution and should be taken to Section 1. The Constitutional Commissions, which shall
mean that COMELEC can only proclaim the winning Senators and party-list be independent, are the Civil Service Commission, the Commission on
representatives but not the President and Vice-President.41 Elections, and the Commission on Audit. (Emphasis supplied)

Respondent COMELEC has no comment on the matter. He submits that the creation of the Joint Congressional Oversight Committee
with the power to review, revise, amend and approve the Implementing Rules
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into
No. 9189 is far too sweeping that it necessarily includes the proclamation of the the independence of the COMELEC which, as a constitutional body, is not under
winning candidates for the presidency and the vice-presidency. the control of either the executive or legislative departments of government; that
only the COMELEC itself can promulgate rules and regulations which may be
changed or revised only by the majority of its members; and that should the rules
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII
promulgated by the COMELEC violate any law, it is the Court that has the
of the Constitution only insofar as said Section totally disregarded the authority
power to review the same via the petition of any interested party, including the
given to Congress by the Constitution to proclaim the winning candidates for the
positions of president and vice-president.
It is only on this question that respondent COMELEC submitted its Comment. It
In addition, the Court notes that Section 18.4 of the law, to wit:
agrees with the petitioner that Sections 19 and 25 of R.A. No. 9189 are
unconstitutional. Like the petitioner, respondent COMELEC anchors its claim of
18.4. . . . Immediately upon the completion of the canvass, the chairman unconstitutionality of said Sections upon Section 1, Article IX-A of the
of the Special Board of Canvassers shall transmit via facsimile, Constitution providing for the independence of the constitutional commissions
electronic mail, or any other means of transmission equally safe and such as the COMELEC. It asserts that its power to formulate rules and
reliable the Certificates of Canvass and the Statements of Votes to the regulations has been upheld in Gallardo vs. Tabamo, Jr.42 where this Court held
Commission, . . . [Emphasis supplied] that the power of the COMELEC to formulate rules and regulations is implicit in
its power to implement regulations under Section 2(1) of Article IX-C43 of the
clashes with paragraph 4, Section 4, Article VII of the Constitution which Constitution. COMELEC joins the petitioner in asserting that as an independent
provides that the returns of every election for President and Vice-President shall constitutional body, it may not be subject to interference by any government
be certified by the board of canvassers to Congress. instrumentality and that only this Court may review COMELEC rules and only
in cases of grave abuse of discretion.
Congress could not have allowed the COMELEC to usurp a power that
constitutionally belongs to it or, as aptly stated by petitioner, to encroach "on the The COMELEC adds, however, that another provision, vis-à-vis its rule-making
power of Congress to canvass the votes for president and vice-president and the power, to wit:
SEC. 17. Voting by Mail. – SEC. 25. Joint Congressional Oversight Committee. – A Joint
Congressional Oversight Committee is hereby created, composed of the
17.1. For the May, 2004 elections, the Commission shall authorize Chairman of the Senate Committee on Constitutional Amendments,
voting by mail in not more than three (3) countries, subject to the Revision of Codes and Laws, and seven (7) other Senators designated
approval of the Congressional Oversight Committee. Voting by mail by the Senate President, and the Chairman of the House Committee on
may be allowed in countries that satisfy the following conditions: Suffrage and Electoral Reforms, and seven (7) other Members of the
House of Representatives designated by the Speaker of the House of
a) Where the mailing system is fairly well-developed and secure to Representatives: Provided, That, of the seven (7) members to be
prevent occasion for fraud; designated by each House of Congress, four (4) should come from the
majority and the remaining three (3) from the minority.
b) Where there exists a technically established identification system that
would preclude multiple or proxy voting; and The Joint Congressional Oversight Committee shall have the power
to monitor and evaluate the implementation of this Act. It shall
review, revise, amend and approve the Implementing Rules and
c) Where the system of reception and custody of mailed ballots in the
Regulations promulgated by the Commission. (Emphasis supplied)
embassies, consulates and other foreign service establishments
concerned are adequate and well-secured.
SEC. 19. Authority of the Commission to Promulgate Rules. – The
Commission shall issue the necessary rules and regulations to
Thereafter, voting by mail in any country shall be allowed only
effectively implement the provisions of this Act within sixty (60) days
upon review and approval of the Joint Congressional Oversight
from the effectivity of this Act. The Implementing Rules and
Committee . . . . . . . . . (Emphasis supplied)
Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval.
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the
independence of constitutional commissions.
. . . . . . . . . (Emphasis supplied)
The Solicitor General takes exception to his prefatory statement that the
Composed of Senators and Members of the House of Representatives, the Joint
constitutional challenge must fail and agrees with the petitioner that Sections 19
Congressional Oversight Committee (JCOC) is a purely legislative body. There
and 25 are invalid and unconstitutional on the ground that there is nothing in
is no question that the authority of Congress to "monitor and evaluate the
Article VI of the Constitution on Legislative Department that would as much as
implementation" of R.A. No. 9189 is geared towards possible amendments or
imply that Congress has concurrent power to enforce and administer election
revision of the law itself and thus, may be performed in aid of its legislation.
laws with the COMELEC; and by the principles of exclusio unius est exclusio
alterius and expressum facit cessare tacitum, the constitutionally enumerated
powers of Congress circumscribe its authority to the exclusion of all others. However, aside from its monitoring and evaluation functions, R.A. No. 9189
gives to the JCOC the following functions: (a) to "review, revise, amend and
approve the Implementing Rules and Regulations" (IRR) promulgated by the
The parties are unanimous in claiming that Sections 19, 25 and portions of
COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC
Section 17.1 are unconstitutional. Thus, there is no actual issue forged on this
[Section 17.1], the voting by mail in not more than three countries for the May
question raised by petitioner.
2004 elections and in any country determined by COMELEC.
However, the Court finds it expedient to expound on the role of Congress
The ambit of legislative power under Article VI of the Constitution is
through the Joint Congressional Oversight Committee (JCOC) vis-à-vis the
circumscribed by other constitutional provisions. One such provision is Section 1
independence of the COMELEC, as a constitutional body.
of Article IX-A of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be "independent."
R.A. No. 9189 created the JCOC, as follows:
Interpreting Section 1, Article X of the 1935 Constitution providing that there By vesting itself with the powers to approve, review, amend, and revise the IRR
shall be an independent COMELEC, the Court has held that "[w]hatever may be for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope
the nature of the functions of the Commission on Elections, the fact is that the of its constitutional authority. Congress trampled upon the constitutional
framers of the Constitution wanted it to be independent from the other mandate of independence of the COMELEC. Under such a situation, the Court is
departments of the Government."44In an earlier case, the Court elucidated: left with no option but to withdraw from its usual reticence in declaring a
provision of law unconstitutional.
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the The second sentence of the first paragraph of Section 19 stating that "[t]he
discharge of its functions, it should not be hampered with restrictions Implementing Rules and Regulations shall be submitted to the Joint
that would be fully warranted in the case of a less responsible Congressional Oversight Committee created by virtue of this Act for prior
organization. The Commission may err, so may this court also. It should approval," and the second sentence of the second paragraph of Section 25 stating
be allowed considerable latitude in devising means and methods that that "[i]t shall review, revise, amend and approve the Implementing Rules and
will insure the accomplishment of the great objective for which it was Regulations promulgated by the Commission," whereby Congress, in both
created – free, orderly and honest elections. We may not agree fully provisions, arrogates unto itself a function not specifically vested by the
with its choice of means, but unless these are clearly illegal or constitute Constitution, should be stricken out of the subject statute for constitutional
gross abuse of discretion, this court should not interfere. Politics is a infirmity. Both provisions brazenly violate the mandate on the independence of
practical matter, and political questions must be dealt with realistically – the COMELEC.
not from the standpoint of pure theory. The Commission on Elections,
because of its fact-finding facilities, its contacts with political strategists, Similarly, the phrase, "subject to the approval of the Congressional Oversight
and its knowledge derived from actual experience in dealing with Committee" in the first sentence of Section 17.1 which empowers the
political controversies, is in a peculiarly advantageous position to decide Commission to authorize voting by mail in not more than three countries for the
complex political questions.45 (Emphasis supplied) May, 2004 elections; and the phrase, "only upon review and approval of the Joint
Congressional Oversight Committee" found in the second paragraph of the same
The Court has no general powers of supervision over COMELEC which is an section are unconstitutional as they require review and approval of voting by
independent body "except those specifically granted by the Constitution," that is, mail in any country after the 2004 elections. Congress may not confer upon itself
to review its decisions, orders and rulings.46 In the same vein, it is not correct to the authority to approve or disapprove the countries wherein voting by mail shall
hold that because of its recognized extensive legislative power to enact election be allowed, as determined by the COMELEC pursuant to the conditions
laws, Congress may intrude into the independence of the COMELEC by provided for in Section 17.1 of R.A. No. 9189.48 Otherwise, Congress would
exercising supervisory powers over its rule-making authority. overstep the bounds of its constitutional mandate and intrude into the
independence of the COMELEC.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the
COMELEC to "issue the necessary rules and regulations to effectively During the deliberations, all the members of the Court agreed to adopt the
implement the provisions of this Act within sixty days from the effectivity of this separate opinion of Justice Reynato S. Puno as part of the ponencia on the
Act." This provision of law follows the usual procedure in drafting rules and unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they
regulations to implement a law – the legislature grants an administrative agency relate to the creation of and the powers given to the Joint Congressional
the authority to craft the rules and regulations implementing the law it has Oversight Committee.
enacted, in recognition of the administrative expertise of that agency in its
particular field of operation.47 Once a law is enacted and approved, the WHEREFORE, the petition is partly GRANTED. The following
legislative function is deemed accomplished and complete. The legislative portions of R.A. No. 9189 are declared VOIDfor
function may spring back to Congress relative to the same law only if that body being UNCONSTITUTIONAL:
deems it proper to review, amend and revise the law, but certainly not to
approve, review, revise and amend the IRR of the COMELEC.
a) The phrase in the first sentence of the first paragraph of Section 17.1,
to wit: "subject to the approval of the Joint Congressional Oversight

b) The portion of the last paragraph of Section 17.1, to wit: "only upon
review and approval of the Joint Congressional Oversight Committee;"

c) The second sentence of the first paragraph of Section 19, to wit: "The
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for
prior approval;" and

d) The second sentence in the second paragraph of Section 25, to wit: "It
shall review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the Commission" of the same law;

for being repugnant to Section 1, Article IX-A of the Constitution mandating the
independence of constitutional commission, such as COMELEC.

The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect
only to the authority given to the COMELEC to proclaim the winning candidates
for the Senators and party-list representatives but not as to the power to canvass
the votes and proclaim the winning candidates for President and Vice-President
which is lodged with Congress under Section 4, Article VII of the Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law
continues to be in full force and effect.